Wisconsin considers confidentiality for all jurors

Tuesday, November 17, 1998

Wisconsin has a long tradition of open courts and open records. A proposal that goes before the Wisconsin Supreme Court today, however, would change that tradition and make the state the first in the nation to keep the names and personal information of all jurors in all trials confidential.

Ironically, the proposal will be considered by the state’s highest court in an open hearing, followed by the court’s deliberations and vote, which will also take place in public.

During the hearing, the court is expected to hear from a broad range of lawyers, judges and news media representatives, many of whom will oppose the plan as an unnecessary imposition on the public’s right to know.

“The statutory and common law presumption of openness, integral to this state’s judicial system, would be reversed — replaced with a presumption of secrecy,” says James Friedman, a lawyer representing the Wisconsin Newspaper Association, the Wisconsin Broadcasters Association, and the state Freedom of Information Council.

Says Dave Zweifel, editor of The Capital Times in Madison, “Once you start forming juries in secret, you open up the possibility of all sorts of abuses. You don’t know if it is a representative jury; you don’t know whether the court is doing what it needs to do in screening the jury.”

Zweifel adds, “It’s just another overreaction to the O.J. business.”

The “O.J. business,” of course, is O.J. Simpson’s 1996 murder trial, which through its excesses triggered a broad examination nationwide of trial practices, including the handling of jurors. Jurors’ names were kept secret during the trial. But once it was over, jurors were identified and soon were overwhelmed with media requests and intense publicity.

“The issue is not so much whether the jurors are in actual danger. Apprehension is the problem, and it may be at an all-time high,” says Vanderbilt University law professor Nancy King, author of a law review article on juror anonymity. “If apprehension is a problem, anonymity is something to keep in mind.”

But that alleged apprehension is not enough to change the rules in such a sweeping way, argues Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press. “The republic has operated without this rule for more than 200 years,” she says. “There are good, valid reasons to know who is passing judgment on our fellow citizens. Every time we add one more layer of secrecy to the judicial process, we undermine the accountability of our courts.”

Judges have long had the power to keep the names of jurors private in individual cases. They have exercised that power in organized crime or gang trials, where jurors might feel intimidated by defendants or their colleagues in crime. In high-profile trials such as the O.J. Simpson trial and last year’s trial of Timothy McVeigh, jurors’ names were also kept private. Press groups have not opposed juror confidentiality in particular cases where a
credible threat to juror safety has been shown.

But the proposal in Wisconsin would go a major step further, keeping names and personal information private in all trials. Even during the “voir dire” or jury selection process, lawyers would be barred from asking questions that would elicit personally identifying information, such as place of employment or spouse’s place of employment.

That feature of the plan has especially riled lawyers, who depend on personal information to weed out potential jurors who might be antagonistic to their side. It will also make it more difficult to detect if a potential juror has a conflict of interest — such as an acquaintance or work relationship with a witness — which should disqualify him or her from serving.

“It threatens a defendant’s right to an impartial jury if we cannot fully inquire about potential jurors,” says Susan Steinglass, president of the State Bar of Wisconsin, which voted last week to oppose the plan.

The proposal in Wisconsin was advanced by J. Denis Moran, director of the state courts. Under the rule, jurors would be identified by number only, and if a party to the proceedings argues that some personal information is needed in the case, it could be elicited in a “less public environment,” such as a closed courtroom or the judge’s chambers.

“These changes will help create a sense of security, encourage jury service, and thereby facilitate the creation of more representative jury panels, which will be to the benefit of all litigants and the interests of justice,” says Moran.

The blanket rule, he argues, would eliminate a problem that has been noted when juror anonymity is imposed in individual cases. In those cases, jurors sometimes become fearful that the defendant before them is especially dangerous because the jury has been singled out for protection.

“If an anonymous jury is used in all criminal cases, there is no special attention directed at the defendant,” says Moran.

A memorandum supporting the change cites anecdotal evidence of the fear that jurors have about giving personal information in connection with their jury service. Jurors who found a defendant not guilty in a criminal case in Sauk County, for instance, were unsettled when they got thank-you notes from the defendant.

Gary Barczak, clerk of Milwaukee’s county courts, is quoted as saying that many potential jurors in his jurisdiction balk at giving personal information and “have refused to serve if they are not guaranteed this confidentiality.”

The proposal also says anonymity should be required in civil cases as well. Moran argues that some civil cases — whether high-stakes financial disputes or contentious divorce or custody battles — pose as much risk to juror safety and privacy as criminal cases.

Noting that personal privacy has eroded in society generally, Moran says, “There is no requirement that the courts of Wisconsin contribute to that loss of privacy by allowing the names and personal identifying information (of jurors) to be available routinely and indiscriminately.”