Jury Tampering by Another Name? Gerald F

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1-1-1994 The Anonymous Jury: Jury tampering by another name? Gerald F. Uelmen Santa Clara University School of Law, [email protected]

Ephraim Margolin

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Recommended Citation 9 Crim. Just. 14

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1rowing use of anonymous juries in criminal trials presents a chal- The lenge to the fundamen- , tal values protected by the defendant's right to a jury trial: the presumption of innocence, and the requirement of proof of guilt beyond a reasonable doubt. It is important to understand the extent to which these fragile rights are burdened by jury anonym- Jury ity so that effective safeguards can be developed. Juror anonymity is an innovation that was unknown to the common Jury tampering by another name? law and to American jurisprudence in its first two centuries. Anonymity was first employed in federal prose- cutions of organized crime in New York in the 1980s. Its use has spread By EPHRAIM MARGOLIN more recently to widely publicized and volatile cases such as the federal and GERALD F. UELMEN prosecution of police officers accused of beating Rodney King; the

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trial of African American defendants cess. Nevertheless, courts have al- where terrorist crimes are alleged alleged to have beaten Reginald lowed prosecutors to use this radical and American use of juror anonym- Denny, a white truck driver, during innovation as a tactical ploy-de- ity in cases to which the "organized the riots after the first Rodney King spite the potentially increased crime" or "terrorism" label is ap- verdict; and the trial of those accused chances of conviction-without bal- plied. In both situations, the label be- of the fatal World Trade Center ancing the frequently unproven as- comes a self-fulfilling prophecy, di- bombing in New York City. sertions of the prosecution against minishing the procedural protections In some of these cases, the defense the probability of harm for the de- available to the accused before the offered no objection to use of an fense and without requiring careful label's accuracy has been deter- anonymous jury. This judgment, monitoring and cautious scrutiny of mined. however, demands careful weighing the process. A shroud of secrecy pre- of anonymity's potentially harmful cludes any accumulation of data to impact on the defendant. The deci- assess the impact of anonymity. An American tradition sion can be described as a "tactical The showing necessary to justify judgment" only where the court al- anonymity can be made routinely in The public nature of the jury trial lows open-ended voir dire suffi- any case to which a prosecutor af- has been recognized since its in- ciently meaningful to permit an in- fixes an "organized crime" or "ter- ception. As the Supreme Court noted formed judgment call. Most often, rorism" label and attributes allega- in Press-Enterprise Co. v. Superior the defense operates in a fog, and tions of prior jury tampering to the Court of California, 464 U.S. 501, preservation of anonymity posttrial defendant by virtue of his or her 505 (1984): makes assessment of the process im- alleged control over "organized The roots of open trials reach possible. crime" or "terrorist" affiliates. back to the days before the Nor- Available evidence suggests that There is an eerie parallel between man Conquest when cases in Eng- anonymity may impose substantial attempts in Northern Ireland to re- land were brought before ... a burdens on a jury's deliberative pro- strict the right to a jury trial in cases town meeting kind of body ....

Fall 1994 15 M HeinOnline -- 9 Crim. Just. 15 1994-1995 Attendance was virtually compul- court] may always sequester the determined that alternatives other sory on the part of the freemen of jury and change of venue is al- than anonymity must be employed the community .... ways possible .... to protect the jurors' safety and their Although the Supreme Court in The Fourth Circuit is not alone in deliberations in such cases. Press-Enterprise did not rely explic- having reached this conclusion. The The 1990 restoration of a federal itly on the Sixth Amendment right to Supreme Judicial Court of Massa- death penalty creates a serious a "speedy and public trial," the chusetts recently reversed an orga- anomaly in cases that permit use of Court nonetheless stated that there nized crime defendant's conviction anonymous juries. Jurors' identities has always been a "presumptive for being an accessory to first-degree may be kept from an "organized openness of the jury selection pro- murder on the ground that he was crime" defendant accused of drug cess" and that "how we allocate the deprived of his right to know the trafficking but not from a defendant 'right' to openness as between the prospective jurors' names and ad- accused of murdering a police offi- accused and the public, or whether cer who sought to arrest the defen- dresses. (Commonwealth v. Angiulo, dant for drug trafficking. we view it as a component inherent 415 Mass. 502 (1993).) Although the in the system benefiting both, is not ruling was based on a statutory right crucial." to a jury list in capital cases (Mass. The U.S. Court of Appeals for the Gen. Laws Ann. ch. 277, § 66 (West Organized crime Fourth Circuit, relying on Press-En- 1990)), the court noted the common The anonymous jury has become terprise and on the fact that histori- law origin of the requirement and a hallmark of organized crime cases. cally "everybody knew everybody the constitutional limitations on the In recent years, it has been trans- on the jury," rejected jury anonym- use of anonymous juries even in formed from a rare and unusual ity in In re Baltimore Sun, 841 F.2d noncapital cases. "last resort" into a standard tactical 74, 76-77 (4th Cir. 1988): A two-hundred-year-old federal weapon in the prosecutorial quiver. We think it no more than appli- statute requires the prosecution to The obvious effect of its employ- cation of what has always been furnish any defendant charged with ment was noted by John Markham, the law to require a district court a capital offense with "a list of the a former federal prosecutor: "[An ... to release the names and ad- veniremen ... stating the place of anonymous jury] ominously signals dresses of those jurors who are sit- abode of each venireman" at least the jurors that you are so dangerous ting .... We recognize the diffi- three full days before the com- that you cannot even be trusted with culties which may exist in highly mencement of trial. (18 USC § 3432 their names." (2(8) California State publicized trials ... and the pres- (Supp. 1992).) One century ago, the Bar Bull. 1 (June 1992).) sures upon jurors. But we think U.S. Supreme Court declared that The prejudice that a defendant the risk of loss of confidence in compliance with the statute's provi- suffers when tried by an anonymous the judicial process is too great to sions is mandatory, even when the jury is not unlike the prejudice suf- permit a criminal defendant to be defendant is acquitted of a capital fered by a defendant who is gagged tried by a jury whose members charge and convicted of a lesser of- and shackled in the courtroom. The may maintain anonymity. If... fense. (Logan v. United States, 144 cases upholding the use of court- the attendant dangers of a highly U.S. 263 (1892).) room restraints in the presence of a publicized trial are too great, [the More recent cases have declared jury make it clear that the defen- that the right arises from the nature dant's own personal courtroom con- of the charges, even if the prosecu- duct is the only trigger that can jus- Ephraim Margolin, a past president of tion does not intend to seek the tify this burden on his or her rights. the National Association of Criminal De- death penalty, and that failure to In Illinois v. Allen, 397 U.S. 337 fense Lawyers, is in private practice in comply with the statutory require- (1970), the Court conceded that the San Francisco. He teaches at the Univer- sity of California at Berkeley Law School ment is "plain error." (Amsler v. sight of shackles and a gag might and at Santa Clara University School of United States, 381 F.2d 37 (9th Cir. have a significant effect on the jury's Law. Margolin represented John Gotti 1967); United States v. Crowell, 442 attitude toward the defendant, but it before the United States Court of Appeal F.2d 346 (5th Cir. 1971).) Thus, the upheld the practice to control a dis- for the Second Circuit. Gerald F. Uelmen empanelment of an anonymous jury ruptive defendant. As the Court later is a professor of law and former dean at is precluded in capital cases in fed- explained in Estelle v. Williams, 425 the Santa Clara University School of eral court. U.S. 501, 505 n.2 (1976): "The con- Law. At this writing, he is co-counsel for The primary justification for using tumacious defendant brings this the defense in the 0.1. Simpson murder an anonymous jury is to foreclose plight upon himself and presents the trial. any opportunity for jury tampering court with a limited range of alter- The authors acknowledge the assis- tance of Gary Raskin and Jeff Friedman, by the defendant or the defendant's natives. Obviously, a defendant both recent graduates of the Santa Clara associates. The motivation for and cannot be allowed to abort a trial University School of Law, with research risk of such behavior is at its height and frustrate the process of justice for this article. in capital cases, yet Congress has by his own acts."

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Personal accountability for any be transported to court in buses and nymity was to prevent jury tamper- danger to the jury should similarly concealed from public view behind ing, but the court approved an be the linchpin to justify juror ano- a curtain or screen; neither defense instruction that deliberately made nymity in any case, whether or not nor prosecution lawyers would be no mention of that, only of the ne- an "organized crime" connection given jurors' names or addresses. cessity to protect jurors from "un- can be made. As the court stated in In rejecting this proposal, the wanted and undesirable publicity United States v. Vario, 943 F.2d 236, Standing Advisory Commission on and embarrassment and notoriety 241 (2d Cir. 1991): Human Rights (a public body in and any access to you which would Northern Ireland The invocation of the words "or- established to ad- interfere with preserving your sworn ganized crime," vise the government on criminal jus- duty to fairly, impartially and inde- "mob," or "Ma- tice and human rights fia," unless there is something matters) con- pendently serve as jurors." more, does cluded that it probably would be Cases following Thomas have car- not warrant an anon- impossible ymous jury. This "something to maintain anonymity ried this skewing of motivation to more" during a lengthy trial. In addition, even greater heights. In United can be a demonstrable his- the tory or likelihood of obstruction commission felt that "it is impor- States v. Scarfo, 850 F.2d 1015 (3d of tant in any trial by jury for justice on the part of the defen- the defen- Cir. 1988), the court justified ano- dant dant to be able to object to some nymity because evidence describing or others acting on his behalf members or a showing of the jury panel; this right the defendant's organized crime that trial evidence could not be properly will depict a pattern of violence exercised connection might have led jurors to by the defendants without some information as to the fear for their safety and that of their and his associ- jurors' identity." ates such as would families. At the same time, the court cause a juror Ironically, the commission to reasonably fear for his own con- approved a jury instruction as fol- safety. cluded that no jury trial at all was lows: preferable to using an anonymous jury. This conclusion underscores I want to emphasize very strongly the uncertainty surrounding ano- that this in no way suggests that Terrorism nymity's effect on jury selection and the defendant would ever have deliberations. To what extent can a dreamed of interfering with you or There is a strong parallel between your family. I have been a judge the use of anonymous juries in or- defendant's historical right to a jury trial be compromised before total now for 27 years, and in all that ganized crime cases and their use in time I have never heard of a case cases involving terrorism. The stated elimination of the use of a jury be- comes a preferable alternative? where any defendant ever tried to concern is to protect jurors from in- cause harm to a juror or a mem- terference or retaliation by those ber of the juror's family. who may be affiliated with the defendants. Corrective jury instructions The judge's recollection was ac- Similar curate: Physical injury to a juror has concerns, however, led to The potential the complete abrogation burden of jury ano- been traced to a defendant in only of the right nymity on the defendant's to a jury trial in Northern presump- one case, United States v. Bentvena, Ireland for tion of innocence was conceded those accused of terrorist activity. in 319 F.2d 916 (2d Cir. 1963). It is United States v. Thomas, 757 F.2d nonetheless unrealistic to expect Under the Northern Ireland (Emer- 1359 (2d Cir. 1985). gency Provisions) It was even rec- that jurors will avert their natural Act of 1973, ognized that the prejudicial impact "Diplock" courts were established suspicion from the most obvious on the defendant could not be elim- source of danger in the courtroom to try such defendants without a inated totally. jury. The fairness based on this admonishment. of Diplock courts In rejecting a per se rule against has been called into Juries are well aware of the fact question. Some anonymity, the Thomas court under- have attributed the reduced that anonymity is reserved for cases acquit- lined two essential prerequisites for tal rate to "case hardened" judges involving threats to their safety, and use of an anonymous jury. First, such threats are frequently attributed who hear a regular procession of there should be cases "strong reason to to "organized crime" defendants. alleging terrorism and to the believe the jury needs protection," frequency with which judges decide As Judge Robert Gardner put it, "A and second, reasonable precaution juror both the admissibility of confessions is not some kind of dithering must be taken to minimize the neg- nincompoop, and the guilt or innocence of the de- brought in from ative effect of use of the anonymous never-never land and exposed to the fendant in the same case. jury "on the jurors' opinions of the A proposal to restore the right to a harsh realities of life for the first time defendants." in jury trial in terrorist cases in the jury box." (People v. Long, 38 Unfortunately, the court also en- Cal. App. 3d 687, 689 (1974).) Northern Ireland included a recom- dorsed concealing mendation from the jury the The Scarfo court conceded that a that jurors remain anon- real reason for anonymity. The prin- ymous. It suggested that jurors could corrective instruction is a "subter- cipal justification offered for ano- fuge which conceal[s] the actual Fall 1994 17M HeinOnline -- 9 Crim. Just. 17 1994-1995 reason for preserving anonymity." sequestration itself accomplishes ror Use and Management notes the But it went on to say that "juries are these goals. Anonymity adds noth- risks of sequestration: reduced rep- not fooled by such subterfuge, and ing. resentativeness of the panel, an al- are actually more likely to draw Some prosecutors argue that se- tered deliberative process, and ju- prejudicial inferences about defen- questration will not protect a juror's rors' resentment. This last risk, the dants from speculation as to the rea- family from threats. This argument standards emphasize, means that sons for their anonymity than from has no factual predicate, because "neither the judge nor counsel actual knowledge of those reasons." there simply is no recorded example should disclose to the jury which Alan Dershowitz of Harvard Uni- of such threats ever being commu- party requested sequestration." versity has said more bluntly that nicated to the family of a seques- Where anonymity accompanies se- "lying to the jury is contagious and tered juror. Nonetheless, such con- questration, it will of course be ob- does not fool anyone. Judges who jecture will sound plausible in any vious to the jury who made seques- lie to juries undermine the system of case where a risk of jury tampering tration necessary. justice more than does any fear of is held to be likely because of the Juries were not sequestered in at possible jury tampering." (Nat'l L. J. defendant's alleged organized crime least two Second Circuit cases em- at 22, col. 4 (Nov. 2, 1987).) or terrorist affiliations. ploying anonymous juries where Nothing corrodes the criminal To protect jurors from the impor- there was a substantial showing of justice system more than routine ju- tunate media even after their jury risk of jury tampering. In United dicial sanctioning of jury instruc- service is concluded, courts can States v. Ferguson, 758 F.2d 843 (2d tions that the judges themselves fashion protective orders that pro- Cir. 1985), marshals drove the jurors have no evidence to support. Sani- hibit repeated interview requests home at night. In United States v. tized instructions to the jury cannot and questioning about statements Persico, 832 F.2d 705 (2d Cir. disguise the fact that anonymity is made by jurors other than the juror 1987), marshals simply transported predicated on the real risk of jury who has agreed to an interview. (See jurors to an undisclosed central lo- tampering. It must be assumed that United States v. Antar, 839 F. Supp. cation from which they departed for jurors recognize this risk and that it 293 (D. N.J. 1993); Abraham S. home. will ultimately affect their attitude Goldstein, Jury Secrecy and the Me- Unlike anonymity, sequestration toward the defendant and their de- dia: The Problems of Postverdict In- by itself can be explained plausibly liberations regarding guilt or inno- terviews, U. Ill. L. Rev. 295 (1993).) to jurors as necessary to protect cence. Notably, sequestration adds sub- them from the media-from both Tell jurors the truth: There was ev- stantially to the aura of fear created improper attempts to contact them idence of jury tampering in some by the use of an anonymous jury. It and accidental exposure to prejudi- other organized crime cases and, increases the risk that jurors will at- cial news reports. That explanation while neither the attorney nor the tribute the burdens imposed on is seriously undercut, however, defendant involved in those cases is them to threats made by the defen- when sequestration is accompanied the same as those involved in the dant. Courts must guard against an by anonymity. present case, precautions are being "ostensible display of unusual pre- When the need to protect jurors taken to ensure the jurors' protec- caution which might have been in- from overly persistent media is ob- tion. Less harm will be done than if terpreted as singling out the defen- vious, a defendant may believe that the jury is presented with false con- dants as ... particularly dangerous an anonymous jury clearly is a pref- cerns about the media and left to or guilty persons." (Hardee v. Kuhl- erable alternative to sequestration speculate as to the horrendous man, 581 F.2d 330, 332 (2d Cir. and that jurors will not assume the crimes the defendant might have, 1978).) anonymity suggests that the defen- but in fact had not, committed. In the federal trial of John Gotti, dant poses some danger to them. the order of sequestration imposed a This apparently was the conclusion security regimen on the jurors com- reached by the police officer defen- Sequestration parable to incarceration in Marion dants in the second Rodney King Federal Prison. Marshals were or- trial, given that the defense offered Concerns that trial publicity might dered to accompany jurors on visits no objection to the use of an anon- enhance the possibility of juror ha- to church, doctors' offices, barber or ymous jury. rassment can ordinarily be dealt beauty shops, and stores. They mon- The circumstances under which a with by means short of an anony- itored all telephone conversations defendant would be willing to waive mous jury. Sequestration of jurors, between jurors and family members his or her right to learn the identities for example, may be justified, but and censored all incoming mail. of the jurors are quite limited, how- sequestration and anonymity need Even visits by jurors with their ever. Even when circumstances are not go hand in hand. If the real con- spouse or children were monitored right, the defense may want to sug- cern is to "ward off curiosity" and by marshals. gest a compromise in which the ju- shelter the jurors from interference Standard 19 of the American Bar rors' identities are given only to the with performing their sworn duty, Association Standards Relating to Ju- (Continued on page 60)

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HeinOnline -- 9 Crim. Just. 18 1994-1995 CHARLES C THOMAS 4o PUBLISHER E- Hendricks, James E, & Bryan Byers-MULTICUL- O Johann, Sara Lee-DOMESTIC ABUSERS: Terror- TURAL PERSPECTIVES IN CRIMINAL JUSTICE AND isis in Our Homes. '94, 152 pp. (7 x 10)., $35.75 CRIMINOLOGY. '94, 534 pp. (7 x 10), 18 tables. This book, written by a nationally known author This all-inclusive, easily readable, practical, up-to- and attorney, is for an audience which includes date, important text addresses cultural diversity, both professionals who work with domestic vio- criminal justice, and criminology with such issues lence cases and the general public, with a special as gender, race, ethnicity, and sexuality. Types of emphasis on encouraging battered women to seek crime, juvenile justice issues, training and college help in ending violent and/or otherwise abusive re- curricula are addressed. In recent years there has lationships with their mates. DOMESTIC ABUSERS: been greatly increasing attention to these themes- Terrorists in Our Homes deals with training profes- which are represented here by twenty-one national sionals in handling domestic abuse cases and would scholars with a thorough expertise and unique be appropriate as a text in courses in criminal perspective in bridging multiculturalism, criminal justice, sociology, social work, law, police sciences, justice, and criminology. At times the authors seem women's 9udies, human relations, nursing/medical, to agree on topics and issues, while at other times and education. It would also be very useful as a the perspectives may seem divergent, adding sig- text for one-day seminars on this topic. Contents nificance to this work's emphasis on perspectives, include: The "look" of a woman abused by her to cover the gap between research and practice. mate; characteristics of battered women; living with an abusive mate; what is "love"?; the police "l Kenney, John P., Donald E. Fuller & Robert F.Barry- and domestic violence cases; prosecution of domes- POLICE WORK WITH JUVENILES AND THE AD- tic violence cases; exposing the violence; what to MINISTRATION OF JUVENILE JUSTICE. (8th Ed.) do when he won't leave; networking among pro- '95, 358 pp. (7 x 10). fessionals; the impact on children; how to isolate domestic violence; battered women who kill their El Palermo, George B.-THE FACES OF VIOLENCE. abusers; pardons and wrongful imprisonment of '94, 342 pp. (7 x 10), 4 tables. battered women; and other topics. 0l Brill, Norman Q.-AMERICA'S PSYCHIC MALIG- NANCY: The Problem of Crime, Substance Abuse, El Vandenberg, Gerald H.-COURT TESTIMONY IN Poverty and Welfare- Identifying Causes with Pos- MENTAL HEALTH: A Guide for Mental Health Pro- sible Remedies. '93, 150 pp. (7 x 10), S29.75. fessionals and Attorneys. '93, 162 pp. (7 x 10), $32.75. o Spitz, Werner U.-Spitz and Fisher's MEDICOLE- GAL INVESTIGATION OF DEATH: Guidelines for O Covey, Herbert C., Scott Menard and Robert J. the Application of Pathology to Crime Investi- Franzese-JUVENILE GANGS. '92, 306 pp. (7 x gation. (3rd Ed.) '93, 856 pp. (81/ x 11), 866 il., 10), 4 il., $54.75. 29 tables, $84.75. O3 Mahoney, Paul T.--NARCOTICS INVESTIGATION 0 Paull, Donald-FITNESS TO STAND TRIAL. '93, TECHNIQUES. '92, 406 pp. (7 x 10), 37 il., $66.75. 196 pp. (7 x 10), 3 il., $49.75. O3 Robinson, Cyril D.-LEGAL RIGHTS, DUTIES, AND o Furnish, Brendan F. J. and Dwight H. Small- LIABILITIES OF CRIMINAL JUSTICE PERSONNEL: THE MOUNTING THREAT OF HOME INTRUDERS: History and Analysis (2nd Ed.). '92, 516 pp. (7 x 10), Weighing the Moral Option of Armed Self-Defense. 5 tables, $73.75. '93, 274 pp. (7 x 10), $54.75. O Felkenes, George T., and Peter Charles Unsinger- o Franklin, Carl J.-THE POLICE OFFICER'S GUIDE DIVERSITY, AFFIRMATIVE ACTION AND LAW EN- TO CIVIL LIABILITY. '93, 298 pp. (7 x 10), 18 il., FORCEMENT. '92, 224 pp. (7 x 10), $42.75. $55.75. o- Surette, Ray-THE MEDIA AND CRIMINAL JUS- El Fisher, Ronald P. & R. E. Geiselman-MEMORY- TICE POLICY: Recent Research and Social Effects. ENHANCING TECHNIQUES FOR INVESTIGATIVE '90, 332 pp. (7 x 10), 7 il., 21 tables, $58.25. INTERVIEWING: The Cognitive Interview. '92, 232 pp. (7 x 10), 1 table, $49.75. 0 Harries, Keith D.-SERIOUS VIOLENCE: Patterns of Homicide and Assault in America. '90, 238 pp. o Johann, Sara Lee & Frank Osanka- REPRESENTING (7 x 10), 23 il., 32 tables, $43.75. ... BATTERED WOMEN WHO KILL. '89, 416 pp. (7 x 10) $78.50. o Wenke, Robert A.-THE ART OF SELECTING A JURY. (2nd Ed.) '89, 158 pp. (5 x 81), $36.25. o Vito, Gennaro F., Edward J. Latessa & Deborah G. Wilson-INTRODUCTION TO CRIMINAL JUSTICE o Golec, Anthony M.-TECHNIQUES OF LEGAL RESEARCH METHODS. '88, 226 pp. (7 x 10), 5 iI., INVESTIGATION. (2nd Ed.) '85, 522 pp. (63/ x $42.25. 93/), 140 il., $58.75. Write, call (for Visa or MasterCard) 1-800-258-8980 or 1-217-789-8980 or FAX (217) 789-9130 Books sent on approval * Complete catalog sent on request * Prices subject to change without notice

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HeinOnline -- 9 Crim. Just. 19 1994-1995 been formally charged. The police dicial review. We like them to be charged with federal crimes.) The are under no Fifth Amendment duty "clear and unequivocal," . . . but statute appears to mandate that only either to let the lawyer communi- only when they guide sensibly, involuntary confessions shall be ex- cate with Desperado or to inform and in a direction we are autho- cluded. Thus, the argument goes, the suspect of the lawyer's presence. rized to go. Congress's intent is that voluntary in technical vi- Indeed, police may even stall in (McNeil v. Wisconsin, 111 S. Ct. at statements obtained are admissible. order to gain a tactical advantage, 2211 (emphasis in original; citation olation of Miranda although this practice is not omitted).) (See, e.g., Justice Antonin Scalia's encouraged. There clearly are a multitude of concurring opinion in Davis, 55 Under the Sixth Amendment, ways that the police and prosecutors Crim. L. Rptr at 2209-10, lamenting Desperado is not entitled to see may bend the rules. Given the Su- the government's failure to raise the counsel-without first requesting preme Court's desire for sensible di- argument; U.S. v. Robinson, 439 counsel-before he is formally rectives, is Miranda headed for a F.2d 553, 574 n.18 (D.C. Cir. 1970) charged. (Moran v. Burbine, 475 meltdown? Before long, the sole (McGowen, J., dissenting).) U.S. 412 (1986); Mitchell v. State, clear and unequivocal judge-made Few commentators expected the 816 S.W.2d 566 (Ark. 1991).) A ca- guideline may revolve around the Supreme Court's adoption of the veat: Some states will suppress con- good faith of the police interrogator "threshold" standard in Davis. fessions when police refuse to and the voluntariness of the suspect. Justices Sandra Day O'Connor and cooperate with counsel under the This prognostication is not baseless. Antonin Scalia seem interested in foregoing scenario. (People v. John- In Connelly, 479 U.S. at 166, the the apparent conflict between Mir- son, 570 N.E.2d 400 (111.App. 3d court arguably foreshadowed the anda and § 3501. (See oral argu- Dist. 1991).) application of good faith analysis to ment summary in Davis, 55 Crim. L. interrogations and confessions by Rptr 3011 (1994).) Thus, the Su- citing to a prior good faith exception preme Court appears poised to re- A Miranda meltdown? case (albeit in the search warrant treat from the rigidity and confusion context) and pointing out that the of the Miranda rules. The Miranda rules are complex. purpose of the Miranda exclusion- Given that the American public Ironically, the Supreme Court's in- ary rule is to deter law enforcement today is as familiar with the Miranda tent in promulgating the rules was to misconduct. warnings as with the pledge of alle- clarify judicial review guidelines. As It is even possible that 18 USC giance, the time has come to return the court recently commented: § 3501 (enacted as Title II of the to a voluntariness test-a test which, [T]he police do not need our as- Omnibus Safe Streets and Crime as espoused in § 3501, takes into sistance to establish ... [interro- Control Act, 82 Stat. 197 (1968)) consideration the suspect's knowl- gation guidelines]; they are free, if overrules Miranda, at least in federal edge of his or her "rights" but does they wish, to adopt [guidelines] court. (See U.S. v. Alvarez-Sanchez, not render this knowledge (or lack on their own. Of course it is our 128 L. Ed. 2d 319 (1994), holding thereof) conclusive on the issue of task to establish guidelines for ju- that § 3501 applies only to persons voluntariness or admissibility. C Anonymous Jury I-_--4t, '+++L t (Continued from page 18) participating attorneys and not dis- courts are engaged in a "grand ex- poses grave risks to some of the fun- closed to the public or even to the periment" with the traditional safe- damental values that underlie trial defendants. guards of the American right to jury by jury. Research confirms the pow- Application of a standard that trial. A true experiment, however, erful influence of each juror's first equates and combines anonymity requires careful measurement and impression of a defendant and the and sequestration poses grave risks assessment of this new variable's impact that the array of first opinions to defendants. The courts should de- impact on jury selection and delib- has on the jury's subsequent evalua- lineate clearly when sequestration is eration. Ironically, the very protection of evidence and deliberations, appropriate, when anonymity may tion provided by anonymity fore- thereby burdening the presumption be employed, and in what limited closes access to the most accurate of innocence. Jurors holding a mi- circumstances anonymity and se- means of assessing the experiment's nority view are more easily swayed questration may be combined. outcome: postverdict debriefing of toward the impressions held by the the jurors themselves. larger faction than vice versa. (Val- First impressions. The research of erie P. Hans and Neil Vidmar, Judg- Being an anonymous juror social psychologists and others who ing the Jury 110 (Plenum, 1986).) When the first impression is Unquestionably, with the increas- have studied jurors' behavior ing use of anonymous juries, the strongly suggests that anonymity strongly negative, jurors may resolve

T60 Criminal Justice HeinOnline -- 9 Crim. Just. 20 1994-1995 close issues of evidentiary dispute, meanor. In Angiulo, supra, the ju- we strive for in our American system such as the credibility of witnesses, rors, who had been impaneled of justice: much differently anonymously, complained during than they would Virtually by definition, deindivi- have otherwise. The phenomenon the trial that the defendant was giv- duated behavior must have the was noted by Harry Kalven Jr. and ing them the "whammy" or "evil property of being a high intensity Hans Zeisel in eye" and was writing down infor- their classic study, manifestation of behavior which The American Jury 114, 165 (Little, mation about them. There was no Brown, 1966): finding that the defendant attempted observers would agree is emotional, impulsive, irrational, re- The jury does not often con- to intimidate jurors by unusual eye contact. gressive, or atypical for the person sciously and explicitly yield to in the given situation. sentiment in the teeth of the law. jury instructions may do more Rather, it yields to sentiment in harm than good. Reliance on jury (Id. at 251.) the apparent process of resolving instructions to dispel the prejudicial Creating anonymity in laboratory doubts as to evidence. The jury, impression of the defendant created experiments on small-group behav- therefore, is able to conduct its re- by anonymity may have a boomer- ior (measuring subjects' willingness volt from the law within the eti- ang effect. Numerous experiments to deliver electric shocks to inno- quette of resolving issues of fact. have shown that restrictive instruc- cent victims), Zimbardo docu- tions may backfire by magnifying mented that "[c]onditions which in- In an influential simulated jury the influence of the very factors that duce feelings of remoteness lead to study, it was found that characteriz- jurors were exhorted to ignore. ing the defendant as "a notorious lowered self-consciousness, less em- One such study found that jurors barrassment, and reduced inhibi- gangster and syndicate boss who deliberating in groups and then ren- tions about punishing the victim." had been vying for power in the dering individual judgments were (Id. at 270.) Thus, by increasing the syndicate controlling the state's un- harsher in convicting and sentenc- risk of emotional, impulsive, and ir- derworld activities" made a signifi- ing after they were given specific in- rational decision making, the "dein- cant difference in trial outcome structions to "decide on the dis- dividuation" of anonymity compared to a case where identical puted facts without regard to [the may di- evidence was presented against a unfavorable] non-evidential aspects lute the protection provided by more sympathetic defendant. (David of the defendant." (Cheryl J. Oros requiring proof of guilt beyond a Landy and Elliot Aronson, The Influ- and Donald Elman, Impact ofJudge's reasonable doubt. ence of the Character of the Criminal Instructions upon Jurors' Decisions: and His Victim on the Decisions of The "Cautionary Charge" in Rape Simulated jurors, 5 J. Experimental Trials, 10 Representative Research Safeguards needed Soc. Psychology 141 (1969).) in Soc. Psych. 28 (1979).) Anonymity presents Another simulation study revealed Hidden in the crowd. A second substantial risks to the traditional that the entire nature of the deliber- major concern arises from psycho- deliberative ative process was affected by reveal- logical research on "deindividua- processes of American juries. The re- ing a defendant's prior conviction, tion," a phenomenon described by search of social psychologists sug- even when there was an instruction Philip Zimbardo, a leading professor gests that these risks could include to disregard that fact except in as- of psychology at Stanford Univer- both an undermining of the presump- sessing the defendant's credibility. sity. According to Zimbardo, when tion of innocence and a dilution of When a prior conviction was an individual feels increasingly the proof standard. The combination brought to the jurors' attention, they anonymous under conditions that of anonymity with sequestration sim- were more likely to discuss matters serve to minimize self-observation ply compounds these risks. that hurt the defendant's case and and, particularly, concern over eval- The restoration of a federal death more likely to think that the various uation by others, he or she tends to penalty in the face of a two-century- pieces of evidence presented by the behave in ways old statutory requirement that capi- prosecution that reflect a "low- were strong. (Gordon ered threshold of normally re- tal defendants receive the names Bermant, Charlan Nemeth, and Neil strained behavior." (Monte M. Page, and addresses of jury veniremen in Vidmar, eds., Psychology and the ed., Nebraska Symposium on Moti- advance creates a serious anomaly Law: Research Frontiers 135, 142 vation: Personality, Current Theory, that cries out for reassessment of the (Lexington, 1976).) and Research, 240, 251 (Univ. of costs and benefits of allowing Once the seeds juror of suspicion are Nebraska Press, 1983).) anonymity. The planted by the use of juror anonym- use of anonymous The impact of this phenomenon juries should be suspended or care- ity, the jurors may attribute sinister on the deliberations of a jury pro- implications to the defendant's fully circumscribed until safeguards duces the precise opposite of the ra- are devised to courtroom appearance and de- prevent these undesir- tional, responsible decision making able effects. CJ Fall 1994 61 M HeinOnline -- 9 Crim. Just. 21 1994-1995