The rights of the press and the public to information about jurors, including their names and addresses, often clash with the right to a fair trial of criminal defendants and with the right to privacy of jurors. [See Marc. O. Litt, "Citizen-Soldiers" or Anonymous Justice: Reconciling the Sixth Amendment Right of the Accused, the First Amendment Right of the Media and the Privacy Right of Jurors, 25 Colum. J.L. & Soc. Probs. 371 (1992).] The pendulum has recently swung in the direction of affording greater weight to the privacy rights of jurors at the expense of the public's right to monitor judicial proceedings.
Courts and legislatures in at least eight states have considered measures that would limit the disclosure of jurors. names and addresses or would increase the use of anonymous juries. For example, a Texas statute prohibits counsel and court personnel from disclosing personal information regarding jurors, including their names and addresses, that is obtained during a criminal trial. [Tex. Code Crim. Proc. Ann. § 35.29.] In California, the identities of the jurors must be sealed at the close of a criminal trial and are released upon an affirmative showing of good cause and where the individual jurors do not object to the disclosure of their identities. [Cal. Civ. Proc. Code §237(a)(1), (b).] In Wisconsin, a proposed rule of procedure would have kept private all personal information about jurors in both civil and criminal cases, but the Wisconsin Supreme Court rejected the rule.
Colorado has joined this string of states. In 1998, the Colorado legislature amended the statute that had previously required public disclosure of the names and addresses of all qualified jurors in the "jury pool" to mandate that the home addresses of such potential jurors not be publicly disclosed. [Colo. Rev. Stat. § 13.71.136.] In addition, in June 1998, the Colorado Supreme Court adopted revised rules of procedure for all state court proceedings that prohibit the disclosure of the addresses or other "locating information" of seated jurors either in open court or through disclosure of court records. These new rules also became effective on January 1, 1999. This article argues that Colorado's new statute and procedural rules violate the First Amendment and the Colorado Constitution because they impose mandatory blanket denials of the constitutionally protected right of access to information about judicial proceedings. Article II, section 10 of the Colorado Constitution provides: "No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty; and in all suits and prosecutions for libel the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact." The arguments explicated below are offered as a guide to media organizations, lawyers, and lobbyists who may face similar proposals in their own jurisdictions.
Since 1980, the U.S. Supreme Court has recognized that the First Amendment protects the public's right to attend criminal proceedings. [Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 55 (1980).] The Court has further recognized that the public and the press have a right to attend not only the trial itself, but also those pretrial proceedings that have been traditionally open to the public and whose function would be enhanced by allowing public scrutiny. [Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) [hereinafter Press-Enterprise II] (holding that a First Amendment right of access applies to preliminary hearings); Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) [hereinafter Press-Enterprise I] (holding that a First Amendment right of access applies to voir dire proceedings).] Although the Supreme Court has not yet directly addressed whether this constitutional right of access to judicial proceedings applies to civil proceedings or to court documents, numerous federal and state courts have extended the First Amendment right of access to civil proceedings and to court records filed in both criminal and civil cases. The following cases recognize a First Amendment right of access to civil proceedings: United States v. A.D., 28 F.3d 1353 (3d Cir. 1994); Westmoreland v. CBS, Inc., 752 F.2d 16 (2d Cir. 1984); Publicker Industries, Inc. v. Cohen, 733 F.2d 1059 (3d Cir. 1984); In re Continental Illinois Sec. Litig., 732 F.2d 1310 (7th Cir. 1984); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165 (6th Cir. 1983). The following cases recognize a First Amendment right of access to judicial records: Republic of the Philippines v. Westinghouse Elec. Corp., 949 F.2d 653 (3d Cir. 1991); Public Citizen v. Liggett Group Inc., 858 F.2d 775 (1st Cir. 1988); Rushford v. New Yorker Magazine, 846 F.2d 249 (4th Cir. 1988); In re New York Times Co., 828 F.2d 110 (2d Cir. 1987); Associated Press v. U.S. District Court, 705 F.2d 1143 (9th Cir. 1983); United States v. Dorfman, 690 F.2d 1230 (7th Cir. 1982).
Although there is a split among the federal courts regarding whether public access to judicial records is premised upon the First Amendment or the common law, the Colorado Supreme Court decided in 1966, long before the Supreme Court decisions noted above, that the public's right of access to judicial records is protected by the First Amendment. [Times-Call Publ.g Co. v. Wingfield, 410 P.2d 511, 514.15 (Colo. 1966).] When this qualified right of access applies, state and federal courts alike recognize that judges are required to make case-by-case determinations of whether denial of access is necessary to further a compelling governmental interest before they may close a courtroom or deny access to judicial records. [Globe, 457 U.S. at 606.07 (1982).] Thus, in Globe Newspaper Co. v. Superior Court, the U.S. Supreme Court struck down a Massachusetts statute that imposed a per se exclusion of the public and press from criminal trials of certain sexual offenses during the testimony of minor victims. [Id. at 610.] The Court observed that even though the interest of protecting minor sex crime victims from additional trauma is a compelling one, the statute did not allow for the constitutionally required case-by-case review and findings necessary to justify closure. [Id. at 607.] Similarly, in People v. Denver Publishing Co., 597 P.2d 1038 (Colo. 1979), the Colorado Supreme Court struck down a statute that prohibited publishing the names of specified parties in juvenile matters as a per se restriction on free speech. In light of these cases, if a First Amendment right of access applies to identifying information about jurors, it follows that the new Colorado rules, by imposing a per se blanket restriction on the public's right of access, violate the First Amendment. Thus, the question becomes whether there is a constitutionally protected right of access to personal information about jurors.
First Amendment Right of Access
Several courts have acknowledged that the public's qualified First Amendment right of access to information about the judicial system attaches to the names and addresses of jurors, particularly in completed criminal trials. Under the Press-Enterprise analysis, a First Amendment right of access to information exists if the information in question passes the twin tests of "experience and logic." First, is there a long history of access to the information at issue? Second, does public dissemination of the information play a significant role in the functioning and enhancement of the judicial process at issue? Information about the individuals who literally decide the fate of both civil litigants and criminal defendants, including information about where the jurors reside, work, or both, satisfies both tests.
The Test of "Experience" (Tradition)
There is a long history and tradition of access to identifying information about jurors. The origins of the open trial, as recounted by the U.S. Supreme Court, demonstrate that when the Constitution was ratified, jurors. identities were readily apparent to those attending the open proceedings:
The roots of open trials reach back to the days before the Norman Conquest when cases in England were brought before "moots," a town meeting kind of body such as the local courts of the hundred of the county court. . . . Attendance was virtually compulsory on the part of the freeman of the community, who represented the "patria," or the "country," in rendering judgment. The public aspect thus was "almost a necessary incident" of jury trials, since the presence of a jury . . . already ensured the presence of a large part of the public. [Press-Enterprise I, 464 U.S. at 505.]
Another "necessary incident" of these public trials in smaller towns was that people attending the proceedings necessarily knew the identity and, no doubt, the place of residence of the jurors:
When the jury system grew up with juries of the vicinage . . . everybody knew everybody on the jury and we may take judicial notice that this is yet so in many rural communities throughout the country. So, everyone can see and know everyone who is stricken from the venire list or otherwise does not serve. Even in the case before us, the entire voir dire proceeding was in open court. But the anonymity of life in the cities has so changed the complexion of this country that even the press, with its vast and imaginative methods of obtaining information, apparently does not know and cannot easily obtain the names of the jurors and of the venire men and women who did not serve in this case. We think it no more than an application of what has always been the law to require a district court, upon the seating of the jury and alternates, if any, to release the names and addresses of those jurors. . . . [In re Baltimore Sun Co., 841 F.2d 74, 75 (4th Cir. 1988).]
So common was the practice of disclosing the identity of jurors that in the conspiracy trial of Aaron Burr, over which Chief Justice Marshall presided, the names of the twelve chosen jurors were printed in the reported decision. [See Gannett Co. v. State, 571 A.2d 735, 757 (Del. 1990) (Walsh, J., dissenting) (citing United States v. Burr, 25 F. Cas. 55, 87, No. 14,693 (C.C.D.Va. 1807)); see also David Weinstein, Protecting a Juror's Right to Privacy: Constitutional Constraints and Policy Options, 70 Temp. L. Rev. 1, 30 (1997).] The jurors. names were also made public in the highly publicized trials of William Penn in 1670 and of John Peter Zenger in 1735. [Gannett Co. v. State, 571 A.2d 735, 756 n.3 (Del. 1990) (Walsh, J., dissenting).] Thus, there is a long-established tradition of allowing access to jurors. identities in criminal trials in the United States.
The Test of "Logic" (Function)
In recognizing the public's constitutional right to attend criminal proceedings, the Supreme Court identified the following purposes served by an open judicial system:
- ensuring that proceedings are conducted fairly;
- discouraging perjury, misconduct of participants, and biased decisions;
- providing an outlet for community hostility and emotion;
- ensuring public confidence in a trial's results through the appearance of fairness; and
- inspiring confidence in judicial proceedings through education regarding the methods of government and judicial remedies. [Richmond Newspapers, 448 U.S. at 569.]
As the First Circuit has ruled:
[m]any of the purposes listed above which open justice serves are equally served by access to the identities of the jurors. Knowledge of juror identities allows the public to verify the impartiality of key participants in the administration of justice, and thereby ensures fairness, the appearance of fairness, and public confidence in that system. [In re Globe Newspaper Co., 920 F.2d at 94.]
The court went on to explain:
It is possible, for example, that suspicions might arise in a particular trial (or in a series of trials) that jurors were selected from only a narrow social group, or from persons with certain political affiliations, or from persons associated with organized crime groups. It would be more difficult to inquire into such matters, and those suspicions would seem in any event more real to the public, if names and addresses were kept secret. Furthermore, information about jurors, obtained from the jurors themselves or otherwise, serves to educate the public regarding the judicial system and can be important to public debate about its strengths, flaws, and means to improve it. . . . Juror bias or confusion might be uncovered, and jurors. understanding and response to judicial proceedings could be investigated. Public knowledge of juror identities could also deter intentional misrepresentation at voir dire. [Id.]
Similarly, the U.S. District Court for the District of Massachusetts noted that:
It is important for the public to receive information about the operation of the administration of justice, including information about the actual people who do render justice in the truest sense of the word. Access to such information not only serves the cause of justice generally by providing an independent, non-governmental verification of the utter impartiality of the processes involved in selecting jurors and shielding them from improper influences, it also serves to enhance the operation of the jury system itself by educating the public as to their own duties and obligations should they be called for jury service. [United States v. Doherty, 675 F. Supp. 719, 723 (D. Mass. 1987), aff.d in part, rev.d in part on other grounds, 867 F.2d 47 (1st Cir. 1989).
Several examples from the recent past confirm these views of the essential role that access to information about jurors plays in promoting the public's confidence in the fairness of the judicial process. Access to juror information helped reveal that an African-American juror in Washington, D.C., refused to convict an African-American criminal defendant, regardless of the Evidence Similarly, it was revealed that a law student juror in a civil libel case had erroneously instructed his fellow jurors on the meaning of the "actual malice" standard. [See Steven Brill, Inside the Jury Room at The Washington Post Libel Trial, Am. Law., Nov. 1982, at 1. Furthermore, information obtained as a result of public access to juror identities has even uncovered juror misconduct. [United States v. Posner, 644 F. Supp. 855, 886 n.2 (S.D. Fla. 1986) (jurors. exposure to prejudicial outside influences revealed in newspaper article featuring interview with juror), aff.d without opinion, 828 F.2d 773 (11th Cir. 1987).] Most recently, news reports revealed that jurors in a civil case switched their votes late Friday afternoon from plaintiff to defendant solely to avoid having to resume deliberations after the weekend. [Jeff Blumentahl, Did Civic Duty Go Awry?, Legal Intelligencer, Sept. 15, 1999.] Not only the names of the jurors, but also the places they live and work may reveal useful background information about the citizens who rendered the verdict in a particular case.
Denial of public access to juror identities can also have a harmful effect upon public confidence in the criminal justice system. When an anonymous jury in Simi Valley, California, acquitted the police officers accused of beating Rodney King, the verdict, which sparked riots in the Los Angeles area, was dismissed by the public as the product of blatant racial bias. Access to juror information in that case may well have reassured the public that no such bias was responsible for the verdict.
As the discussion above demonstrates, there is a firmly established tradition of providing public access to juror identities, including their addresses, and access to that information enhances the functioning of our judicial system. Therefore, under the Press-Enterprise test of "experience and logic," the names and addresses of jurors are subject to the qualified right of access guaranteed by the First Amendment. Indeed, in holding that the entire jury selection process in criminal trials is subject to the First Amendment right of access by the public, the Supreme Court has strongly suggested that any limitation on information ordinarily disclosed at such proceedings must satisfy the "strict scrutiny" test. Accordingly, before denying the public access to information about jurors in civil or criminal proceedings, courts must conduct a case-by-case analysis and determine that withholding the information is necessary to further a compelling government interest, is narrowly tailored to serve that interest, and that no less restrictive means are available to adequately protect that interest. Furthermore, in Colorado and other states where the state constitution affords greater protection for free speech rights than is available under the First Amendment, the test should be even more stringent.
Colorado's Revised Rules
As part of a comprehensive jury reform effort in Colorado, the state's General Assembly amended the statute that had previously granted the public access to the names and addresses of all eligible jurors in the jury pool. [see Report of the Supreme Court Committee on the Effective and Efficient Use of Juries in Colorado (visited July 20, 1999).] Under the amended statute, this information is available only to the parties and their counsel. The public has access only to the "names and juror numbers" of potential jurors. [Colo. Rev. Stat. §13.71.136 (Supp. 1998).] Furthermore, the Colorado Supreme Court adopted amendments to the Colorado Rules of Criminal and Civil Procedure mandating that "jurors [in all cases] shall not be required to disclose personal locating information, such as address or place of business, in open court and such information shall not be maintained in files open to the public."
The new statute and amended procedural rules impose an unacceptable per se blanket restriction on public access to juror information. Of course, in any individual case, there may be grounds to justify nondisclosure of personal information about jurors. For instance, in cases involving gang activity or other situations in which the personal safety of jurors may be at issue, or in cases with a high potential for jury tampering or some other threat to the fair administration of justice, a judicial order prohibiting disclosure of jurors. personal information might well be justified and would satisfy the Press-Enterprise test, if appropriate judicial findings were made. These situations, however, should be the exception:
In the vast majority of trials, there are no safety implications for jurors and the media has no interest in reporting the names or comments of jurors. Therefore, as a practical matter, there is rarely a realistic threat to juror safety arising from media access to juror names. [In re Juror Names, 592 N.W.2d 798, 808.]
It is difficult to understand how the juror's address can pose any significant threat to juror safety or privacy in the routine contract dispute or civil tort action. Yet under Colorado's new statute and rules of procedure, juror information will be withheld in even such commonplace cases.
As discussed above, the public has a constitutionally protected right, albeit a qualified one, to gain access to juror information. Consequently, the question of whether jurors. identities and "locating information," including home and work addresses, should be withheld from the public must be decided by the trial court on a case-by-case basis, in light of the particular facts and circumstances of the case. [In re Juror Names, 592 N.W.2d 798, 808.] Although an individual case may present sufficient grounds to justify nondisclosure of personal information, the new Colorado enactments do not allow for the case-by-case analyses and findings required by Supreme Court precedents. [See Nixon v. Warner Communications, 435 U.S. 589, 599 (1978).] As the Globe Newspaper and Denver Publishing Co. cases make clear, per se rules that restrict First Amendment rights, by definition, are not sufficiently "narrowly tailored" to pass constitutional muster. [See Florida Star v. B.J.F., 491 U.S. 524, 539.40 (1989).] Because Colorado's recently amended statute and new procedural rules impose blanket restrictions on access to information about judicial proceedings, they abridge long-recognized First Amendment protections.
Colorado's new statute and procedural rules are one example of the growing trend among the states to protect the privacy of jurors at the expense of the public's right of access to information concerning judicial proceedings. Although individual cases may present specific circumstances that warrant the nondisclosure of jurors. names, addresses, or both, universal restrictions on access such as those enacted in Colorado and elsewhere are unacceptable and unconstitutional. Because there is a qualified First Amendment right of access to information about jurors, courts must engage in a case-by-case analysis before suppressing juror information.