Stephen L. Carter: Should Donald Trump's jury really remain anonymous?

What are we to make of the anonymous jury in former President Donald Trump’s criminal trial in New York? The practice has long had its critics.

First let’s get technical: Trump’s jury is not actually anonymous. Unlike the practice in some organized crime cases, the parties and their lawyers know the jurors’ names. Only the media and the public don’t. This practice has been followed in many explosive cases, including the 2011 corruption trial of former Illinois Gov. Rod Blagojevich, the 2019 trial of alleged cult leader Keith Raniere, and the 2020 trial of police officer Derek Chauvin in the murder of George Floyd.

Trump has already faced one anonymous jury, in last fall’s trial of the defamation suit filed by E. Jean Carroll. Perhaps he will face more. Even if he doesn’t, other defendants surely will. By one much-quoted estimate, about a dozen trials a year feature jurors whose identities are secret.

Given Trump’s own bombast and the vehemence of some of his supporters, it’s easy to see why the judge wants to keep the jurors’ identities from the public. I might make the same call. What’s harder to work out is whether we should be concerned about how common the practice has become.

A quick word about history. In the early days of the English jury — we’re speaking of the 13th century — an anonymous jury would have been unthinkable. Jurors were drawn from the local population, on the theory that they’d know the most about the parties, and that the public would know justice was being done because the jurors were people they knew.

Within a few hundred years, the trial worked the other way around, with the jury as blank slate — one 18th century case explained that the ideal juror was a “white paper” — and justice consisted in the jury remaining uninfluenced by anything but the evidence.

Nevertheless, until the last quarter of the 20th century, juror names were always known. This was seen as a fundament of public respect for the system.

The first recorded use of an anonymous jury was the 1977 trial of Leroy Barnes (known to history as Nicky Barnes), whose drug gang reputedly ran Harlem with a violent hand. But that was a truly anonymous jury. Not even the prosecution or the defense knew the names of the jurors. What Trump is facing — a jury whose names are unknown to outsiders — is the more usual practice.

Scholars have long found it troubling. If the jury is told by the judge that their names will be secret because they or their families are at risk, it is difficult to imagine how they can sit in the courtroom day after day maintaining the required presumption that the defendant is innocent. More likely, they will sift the evidence with the uneasy perception that the defendant is dangerous.

Critics have skewered the practice of keeping jurors’ identities secret as “jury tampering by another name,” particularly because courts tend to adopt it on the basis of vague suspicions articulated by the prosecution. Scholars have debated whether anonymity heightens or reduces juror bias; judges have agonized over the effects of unknown juries on public perception that justice is being done.

This concern isn’t easily refuted — or confirmed. A 1998 study of mock juries found a higher conviction rate when jurors were truly anonymous, unknown even to the lawyers involved. But we don’t know if the same result obtains within the walls of the real-life courtroom; or when, as in Trump’s case, the lawyers know who the jurors are.

And there may be benefits to anonymity. Anonymous juries could be good for defendants if secrecy makes jurors less susceptible to public pressure to convict the unpopular. Public pressure to convict is no joke: In 1992, jurors received threats after acquitting the police officers who savagely beat Rodney King. According to news reports, several members of the jury moved out of Los Angeles.

On the other hand, if the jury knows its anonymity will eventually be pierced, the sense of pressure might remain. The 2011 acquittal of Casey Anthony, charged with the murder of her daughter, ignited a firestorm of outrage. At first the fury found no target. Three months after the verdict, however, the court unsealed the jurors’ names. Such was the frenzy of the newly aroused public that some jurors asked law enforcement for protection. At least one quit her job and left town.

Part of the problem, commentators agree, is our era. Social media allows rapid spread not only of juror identities but of conspiracy theories, anger, and ultimately hatred. In the heated atmosphere that swirls around Trump, the fact that nothing on social media might meet the legal definition of a threat will be cold comfort to a juror subjected to a torrent of abuse.

We could try to curb juror fear by making all juries anonymous. That would dispense with the notion that secrecy is an implicit signal of the defendant’s dangerousness. Alas, should anonymous juries become ubiquitous, respect for the justice system would almost certainly diminish, if not collapse.

Maybe the best we can do is accept that the occasional anonymous jury is an imperfect solution for an imperfect world — and a solution that will leave everyone dissatisfied.

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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist, a professor of law at Yale University and author of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”