Juror Privacy in the Sixth Amendment Balance

Abstract

Some eight million citizens report for jury duty every year. Arguably, jury duty is one of the most significant opportunities to participate in the democratic process. For the accused, the jury acts as an indispensable safeguard against government overreaching. One might expect, therefore, that our justice system would treat putative jurors with care and tact. The opposite is true. During voir dire, potential jurors are required to share insights into their own lives, quirks, proclivities, and beliefs. Litigants have probed jurors’ sexual orientation, criminal histories, criminal victimization, health, family relations, and beyond. A few scholars have chided the system for abusing jurors, but courts and scholars alike have conceived of this invasion into juror privacy as a necessary part of protecting the accused’s Sixth and Fourteenth Amendment rights to fair trial and impartial jury and the media and public’s First Amendment rights to observe the criminal process. In this article, I examine this overly-simplistic view, which fails to account for the probability that by infringing on juror privacy, the justice system causes more jurors to lie and to withhold material information revealing their true biases, thus undermining the accused’s constitutional rights. Ultimately, I contend that juror privacy is an imperative complement to the accused’s rights, and I urge a procedural modification to the voir dire process, a juror voir dire strike, protecting both jurors and the accused without undercutting the public’s and media’s First Amendment rights to observe criminal trials.