Federal Evidence Review

Case of first impression established factors to empanel an anonymous jury in the Ninth Circuit; affirming trial court's sua sponte decision for an anonymous jury, in United States v. Shryock, 342 F.3d 948, 971 (9th Cir. 2003), cert. denied, 541 U.S. 965 (2004)

Under limited circumstances when safety concerns arise, a trial court may decide to empanel an anonymous jury. In a primary case, when the Ninth Circuit considered this issue for the first time, it identified specific factors to be considered.

The case involved prosecution of members of the Mexican Mafia for conspiring to traffic narcotics, violations of the Racketeer Influenced and Corrupt Organizations Act, and related offenses. The trial judge sua sponte decided to empanel an anonymous jury. The trial judge “order[ed] that the names, addresses, and places of employment of prospective jurors and their spouses not be disclosed to counsel, either before or after selection of the jury panel.” Shryock, 342 F.3d at 970. During jury selection, counsel would not have this information available. After the defendants were convicted, they challenged the use of an anonymous jury.

The Ninth Circuit considered the empanelment of an anonymous jury as “an issue of first impression” in the case. The circuit joined with others in adopting “adopt[ing] the abuse of discretion standard of review” providing “deference to the district court's decision to empanel an anonymous jury.” Shryock, 342 F.3d at 970 (citing United States v. DeLuca, 137 F.3d 24, 31 (1st Cir. 1998), inter alia)).

Constitutional Risks

The circuit noted that an anonymous jury should be used in limited circumstances as “an unusual measure that is warranted only where there is a strong reason to believe the jury needs protection or to safeguard the integrity of the justice system, so that the jury can perform its factfinding function.“ Shryock, 342 F.3d at 971. Two constitutional concerns were noted:
anonymous juries may infer that the dangerousness of those on trial required their anonymity, thereby implicating defendants' Fifth Amendment right to a presumption of innocence. Also, as Appellants correctly note, the use of an anonymous jury may interfere with defendants' ability to conduct voir dire and to exercise meaningful peremptory challenges, thereby implicating defendants' Sixth Amendment right to an impartial jury.
Shryock, 342 F.3d at 971.

The limited use of an anonymous jury was justified "where (1) there is a strong reason for concluding that it is necessary to enable the jury to perform its factfinding function, or to ensure juror protection; and (2) reasonable safeguards are adopted by the trial court to minimize any risk of infringement upon the fundamental rights of the accused." Shryock, 342 F.3d at 971 (citing DeLuca, 137 F.3d at 31).

The circuit was not troubled by the trial court’s sua sponte decision to empanel the jury noting other circuits had affirmed similar decisions where warranted.

Non-Exclusive Factors

In drawing upon other cases, the Ninth Circuit adopted five relevant but non-exclusive factors to consider based on the totality of the circumstances:

(1) the defendants' involvement with organized crime; (2) the defendants' participation in a group with the capacity to harm jurors; (3) the defendants' past attempts to interfere with the judicial process or witnesses; (4) the potential that the defendants will suffer a lengthy incarceration if convicted; and (5) extensive publicity that could enhance the possibility that jurors' names would become public and expose them to intimidation and harassment.

Shryock, 342 F.3d at 971 (citing DeLuca, 137 F.3d at 31-32 and other cases).
Each of the factors was satisfied:

First, the record shows that Appellants were involved with the Mexican Mafia, an extraordinarily violent organized criminal enterprise.…

Second, the record shows Appellants' involvement on behalf of the Mexican Mafia in several murders, attempted murders, and conspiracies to commit murder. At the time of trial, there were hundreds of Mexican Mafia members and associates still at large. Clearly, the Mexican Mafia was a group with the capacity to harm jurors.

Third, the record shows that Appellants had previously attempted to interfere with the judicial process by testifying falsely and threatening, assaulting, killing, or attempting to kill potential witnesses in other cases.…

Fourth, all Appellants faced lengthy incarceration if convicted. In fact, Appellants received sentences ranging from 384 months to life plus 300 months.…

Moreover, the district court took reasonable precautions to minimize any risk of infringement on Appellants' fundamental rights, [including] … instruct[ing] the jury that the reason for their anonymity was to protect their privacy from curiosity-seekers. Also, the district court instructed the jury that the use of anonymous juries was commonplace in federal court, and that the reasons for the use of such a jury here had nothing to do with the Appellants' guilt or innocence.

Shryock, 342 F.3d at 971-72 (citations omitted).

The case highlights relevant factors and issues to be considered for practitioners in the Ninth Circuit in which an anonymous jury may be contemplated. For comparable factors in other circuits, see other blog posts.