Anonymous Juries In The Canadian Judicial System

Essay, Research Paper

The Canadian and essentially North American criminal justice system has traditionally made the identities and addresses of jurors known to the judge, the prosecution, and the defense solely. That tradition began to erode with the unprecedented sua sponte trial court decision to use an anonymous jury in the case of United States v. Barnes and lead to similar precedent in Canada with the case of The Crown v. Diroguay, two highly publicized criminal trials of notorious organized crime figures in New York City and Toronto respectively. Since “Barnes,” Federal prosecutors in New York have

requested and been granted anonymous juries in a number of similar cases, a development which has generated criticism. On the other hand, anonymous juries have been employed across Canada ever since as more and more local systems adopt the precedent. This paper

first addresses the issue of whether juror anonymity violates a defendant’s right to a jury trial by adversely affecting the defendant’s ability to exercise effectively peremptory challenges during voir dire. It also discusses the effect an anonymous jury may have on the presumption that a defendant is innocent until proven guilty. Also considered are attempts by trial judges, through particular jury instructions, to minimize or eliminate prejudice to

defendants resulting from the use of an anonymous jury. And finally the paper examines the need for anonymous juries and concludes that in certain cases jurors may either fear retaliation or actually be exposed to intimidation unless the court employs measures to conceal their identities.

Juror anonymity is an innovation that was unknown to the common law and to Canadian jurisprudence in its first two centuries. Anonymity was first employed in federal prosecutions of organized crime in Toronto in the early 1980 s. Although anonymous juries are unusual since they are typically only empanelled in organized-crime cases, its use has spread more recently to widely publicized cases such as the federal prosecution of police officers accused of assaulting Eric Deatrie.

In these cases, the selection committee selected a jury from a panel of prospective jurors whose names,addresses, ethnic backgrounds and religous affiliations remain unknown. This unusual procedure, designed to protect jurors from outside influence and

the fear of retaliation, has occasionally been used in New York federal courts since the trial of drugkingpin Leroy “Nicky” Barnes.1 Despite apparent benefits, critics assail anonymous juries both as an infringment of the guarantee of an impartial jury and as a serious and unnecessary erosion of the presumption of innocence stated in the Canadian Charter of Rights and Freedoms.

Since many attorneys believe trials are frequently won or lost during jury selection,2 any procedure diminishing the role of counsel invites close scrutiny and criticism. Opponents of anonymous juries argue that the procedure restricts meaningful voir dire and thereby undermines the defendant’s right to an impartial jury.3 Critics also

claim that jurors interpret their anonymity as proof of the defendant’s criminal proclivity, thereby subverting the presumption of innocence.4 Nevertheless, this paper argues that anonymous juries neither undermine this right nor meaningfully dilute the presumption of innocence.

Limited Voir Dire and the Peremptory Challenge

Consistent with due process the trial judge may refuse to ask prospective jurors any questions not reasonably calculated to expose biases or prejudices relevant to the case.5 Although addresses and group affilations may indicate significant potential for bias,

attorneys do not have an unfettered right to this information in every case. Denying access to these facts may constrain an attorney’s ability to assemble an ideal jury, but it violates no charter right.

Although the Diroguay court may have been on firm charter ground in rejecting the defendants’ request for the ethnic and religous backgrounds and addresses of prospective jurors,6 it unnecessarily downplayed the relevance of this information to

intelligent peremptory challenges. Indeed, racial, ethnic and socio-economic undercurrents are present in every case involving an anonymous jury. Trial judges should acknowledge this fact and permit some inquiry into group affiliations and approximate community in

lieu of names and addresses. Because such disclosure does not undermine the purpose of juror anonymity and more than adequately substitutes for the information normally inferable from names and addresses, it should be permitted in every case using the procedure.

Some aspects of juror anonymity may even work to a defendant’s advantage. Assuming attorneys are able to discern subtle prejudices from a prospective juror’s group affiliations, anonymity equally restrains both sides from eliminating members of the jury

pool with undesirable demographic characteristics. Although defense attorneys may be unable to weed out jurors with group characteristics that are supposedly prejudicial to criminal defendants, prosecutors will similarly be unable to detect jurors from supposedly sympathetic jurors. This equality of ignorance may favor defendants. Because conviction requires a unanimous verdict, anonymity increases the possibility of a hung jury

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