Privacy for Prospective Jurors at What Price? Distinguishing Privacy Rights from Privacy Interests; Rethinking Procedures to Protect Privacy in Civil and Criminal Cases

I. Introduction Imagine lawyers forcing a distraught prospective juror to reveal during pretrial questioning that she had been raped by her stepfather, a secret that she had never told anyone-not even her husband.1 Witnessing such a forced disclosure prompted a state court judge to impose secrecy orders that keep prospective jurors' names anonymous.2 Protecting prospective jurors' privacy was previously limited to cases in which juror safety was an issue-such as cases involving organized crime or violent gangs-but today the practice is growing as judges move from ensuring safety to emphasizing privacy.3 Indeed, prospective jurors compelled to attend voir dire have little say about how they are treated during the jury selection process. They must submit personal information about themselves, which sometimes includes completing lengthy questionnaires.4 In fact, if the juror fails to answer questions during voir dire, a judge may impose a fine or jail time or charge a juror with contempt of court. Additionally, a prospective juror's private and personal information is subject to public exposure because the public is entitled to attend voir dire proceedings and the media has access not only to the proceedings but to voir dire transcripts as well. Prospective jurors face two dilemmas. They are confronted with the inability to prevent public disclosure of specific information about themselves and the inability to prevent public disclosure of their answers to voir dire questions. Courts, commentators, and the public have analyzed both aspects of this problem. Most concur that prospective jurors are entitled to some privacy. However, society also wants to ensure a fair trial for defendants. The interplay of these potentially conflicting impulses renders the extent of a juror's entitlement to privacy problematic. How should we resolve this tension between juror privacy and a defendant's right to a fair trial? Almost all answers to this question are based on constitutional, legal, and policy implications for criminal proceedings. To a certain extent, voir dire in criminal and civil trials implicates prospective jurors' privacy in similar ways. For example, extensive voir dire helps to ensure the defendant's constitutional right to an impartial jury in both criminal and civil trials. In addition, the public and the media have historically had a right of access to voir dire in criminal and civil proceedings. However, criminal trials-because they entail a threat to an individual's personal liberty-often have far higher stakes than even those civil trials that involve large amounts of money. Thus, comparatively speaking, the right to an impartial jury weighs more heavily against a juror's privacy in a criminal trial than a civil trial. Further, the protection of juror privacy in the criminal context has implications that are absent from considerations of juror privacy in civil proceedings. Media access to criminal proceedings serves as a check on the state's prosecutory power; however, access to civil proceedings involving private parties lacks such a fundamental goal. From this perspective, prospective jurors in civil proceedings are arguably entitled to a higher standard of privacy than those in criminal proceedings. Other factors suggest that prospective jurors in the civil context should endure privacy-invading voir dire in light of the alternatives. Realistically, restricting voir dire in civil trials in order to protect prospective jurors' privacy may actually increase the use of tactics that jeopardize jurors' privacy. For example, if unable to obtain information about potential jurors directly in voir dire, parties may increase the pretrial investigation of prospective jurors, the use of jury books, and the retention of jury consultants. Furthermore, methods used to protect the privacy of prospective jurors in criminal proceedings may be inappropriate to protect jurors' privacy in civil proceedings. …