By Dr. Ken Broda-Bahm:
The number of criminal indictments against Donald Trump is now up to four. In the self-sealing belief systems of some of the former President’s more zealous supporters, if prosecutors are going after Trump, that means they’re corrupt, and if judges are siding with those prosecutors, they’re also corrupt. And, by extension, if grand juries composed of average citizens have handed down those indictments, well then they are corrupt too. Obviously, one can support a politician or criticize a prosecution without undermining the justice system, but some have taken it farther. As NBC News recently reported, one fringe pro-Trump website has shared the purported names and addresses of the Georgia grand jurors who returned a comprehensive RICO indictment against Trump and seventeen co-conspirators. “These jurors have signed their death warrant by falsely indicting President Trump,” one post on the site reads. As Daniel Jones, a former FBI Investigator and Senate staffer who founded the non-partisan Advance Democracy organization notes, “It’s becoming all too commonplace to see everyday citizens performing necessary functions for our democracy being targeted with violent threats by Trump-supporting extremists.”
And, of course, the cases are just getting started. The risk of this kind of “doxing” for public service applies not just to the Trump cases, but to any high-profile cases that generate public passions. It is quite obviously a terrible practice. It is bad for the justice system, bad for our chances of getting jury decisions free from outside influence, and bad for the willingness of citizens to serve as jurors in high-profile cases. The identity of jurors can be masked in many jurisdictions, but that is a very rare step for a good reason. Because part of the justification for juries in the first place is to have a judgment coming from the public, judges have an understandable reluctance to make cases private. Anonymity can sometimes be warranted. But when, as in most cases, the information necessary to identify a juror is in the public domain, there are just a few rules that should be followed to prevent jurors from being doxed for doing their duty.
1. Don’t Make It Worse
Assuming that the judge doesn’t keep the identities anonymous, jurors can’t necessarily be protected against all forms of exposure. But trial teams before, during and after the trial can make sure they aren’t adding to the jurors’ potential exposure. For example, you will want to voir dire potential jurors to find out who is most worried about public disclosure and likely to be influenced or distracted by that possibility. You should also keep juror names and any other identifying information outside of any public statements, articles, or comments to the media. This should apply not only to attorneys, but also to anyone who the attorneys do or should control, such as clients, witnesses and engaged supporters.
2. Talk To Your Jurors Post-Trial for the Right Reasons
If you speak to your jurors once they have completed their service, make sure you are doing that in order to learn about their decision, and what you could have done to make your case more clear and compelling. Generally, it is a bad idea to conduct post-trial juror interviews as a way of discovering misconduct and building a case for a mistrial. Not only is it rare that a court would ever admit post-trial comments from jurors, but trying for that kind of result can be another form of doxing for jurors, and particularly when parties or their representatives are just fishing for something that could change the result.
3. Talk to Your Jurors Post-Trial at the Right Place and Time
Typically, after getting to a verdict in a stressful or high-profile case, there is just one thing a former juror wants to do: They want to go home, and get back to their normal life. For that reason, the immediate aftermath of the trial is not the best time to confront jurors and try to talk to them. Also, make sure you know the rules. If the venue doesn’t allow post-trial contact, then obviously, don’t attempt it. But if contact is allowed, consider asking the judge to allow jurors to “opt-in” by supplying a contact phone number to the court that can be shared with both sides. Then consider using a surrogate, like a consultant, to contact the jurors a couple of days after their service is over without immediately disclosing which side they’re on.
4. And Don’t Dox Your Mock Jurors Either
Of course, the main concern with anonymity applies to actual jurors who have served in courtrooms. But for the mock jurors who have participated pretrial, there may also be a concern over who is getting their information. For example, when the Persuasion Strategies group conducts mock trial research, we always assure our mock jurors that, once they are checked in, we are not retaining any of their personally identifiable information, and are referring to them by a first name and a participant number. Not only does it reassure them to know that we aren’t keeping, trading, or selling their identifying information, but it also sets us up to ask for information confidentiality in return. The message is, “We are protecting your information, but it is a two-way street, so we expect (and by contract, require) you to keep our confidential information protected as well.”
Ultimately, the jury system is worth protecting, and the jury system depends on jurors who are comfortable with the degree of freedom they are trading in order to play a critical role in solving disputes on behalf of the state. So don’t do anything to make jurors less comfortable.
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Other Posts on Juror Rights:
- Support a Jurors’ Bill of Rights
- Respect Your Jurors (Especially in a Pandemic)
- Respect Jurors’ Declaration of Independence
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