Court committee on rules offers anonymous juror proposal

Applicable to all criminal cases, the proposal would also require jurors to be referred to by number; VCOG board opposes rule.

by Gardner Rordam

Laurence E. & Catherine Richardson Fellow

Virginia is considering a proposal that would radically alter the face of criminal jury trials.

Open juries are the current standard in Virginia, and in other states and jurisdictions across the country, but they are currently endangered in the Commonwealth. The proposal, given by the Advisory Committee on the Rules of Court for the Supreme Court of Virginia, would make all juries anonymous in criminal proceedings. To open a jury, either party would need to show good cause that the jury should not be anonymous.

General Assembly legislation prompted the proposal draft. In its 2008 session, the General Assembly of Virginia allowed parties to file motions to make jurors’ personal information confidential for good cause. Such good cause could include "likelihood of bribery, tampering, or physical injury to or harassment of a juror if his personal information is disclosed."

The bill was first introduced by Del. Morgan Griffith, R-Salem, in 2007, but was sent to the Crime Commission for further study. Delegate Bob Marshall, R-Prince William, carried the bill in 2008 in response to concerns from circuit court judges about gangs intimidating jurors. Nonetheless, the law was set up to make anonymous jurors   the exception, not the rule.

The statute included a provision that directed the Supreme Court to "prescribe and publish rules that provide for the protection of the personal information of a juror in a criminal trial."

In response, the high court’s rules advisory committee first discussed the juror confidentiality law in October 2008 and April 2009, and the Boyd-Graves Conference, established by the Virginia Bar Association to study and improve the civil law in Virginia, studied the issue in a subcommittee. While the Boyd-Graves Conference deferred comment until the Virginia Supreme Court decided on a final rule for criminal trials, the advisory committee went forth with its proposal for the court’s consideration.

The committee’s proposal calls for each juror to receive a number instead of being called by name. The actual records of jurors’ names and addresses would be retained by the clerk of court. Any additional information pertaining to jurors that is obtained through voir dire, or jury questioning, would be limited to the parties of the lawsuit and could not be released to the press or any other entity.

The proposal also allows for an order that would prohibit defense counsel from sharing juror information with a client. Furthermore, attorneys are required to return all juror information materials to the court and are forbidden from making copies. Based on the proposal’s notes, this final provision appears to be based on an Indiana county circuit court rule.  

The committee left this rule open for public comment until Sept. 1.

During its board meeting on June 25, the Virginia Coalition for Open Government resolved to oppose the proposal in its current form. VCOG submitted comments to the committee in August, as did the Virginia Press Association, the ACLU of Virginia, a defense attorneys organization and others.

The VCOG comments can be found online:

www.opengovva.org/images/stories/misc/anonymousjurorcomments.pdf .