On August 1, 2008, the Third Circuit Court of the Appeals issued its opinion in United States v. Wecht. The opinion is great news for citizen media creators, because the court ruled that the First Amendment confers a presumptive right of access to obtain the names of trial and prospective jurors in a criminal case prior to empanelment. U.S. v. Wecht, --- F.3d ---, 2008 WL 2940375 at *9 (3rd Cir. Aug. 1, 2008).
In the decision, Third Circuit Judge D. Brooks Smith noted that the issue was one of first impression in the circuit. The court used the "experience and logic" test set forth in Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-9 (1986), in which the Supreme Court determined which aspects of a criminal trial (i.e., the place or stage) are subject to a presumptive First Amendment right of public access. The test requires a court to consider: (i) whether the place and process have historically been open to the press and general public (the "experience" prong); and (ii) whether public access plays a "significant positive role" in the functioning of the particular process in question by "enhancing both the basic fairness of the criminal trial and the appearance of the fairness so essential to public confidence in the system" (the "logic" prong). Press-Enterprise, 478 U.S. at 8 (internal citation omitted). If the aspect of a criminal trial passes the test, it is presumptively open, and a trial court would need to "articulate specific facts" that justify closure in order to overcome that presumption. Id. at 9-10.
In this instance the Third Circuit concluded that public knowledge of juror's names is a well-established part of the American judicial tradition, and that instances of nondisclosure of juror names were very rare before the 1970s, thus satisfying the experience prong. The court also concluded that public access to juror names plays a significant positive role in the functioning of the criminal justice system:
We cannot reconcile the Supreme Court's conclusion that the public has the right to see the process in which this power is exercised and to see the process that selects those who will exercise the power . . . with the conclusion that the public has a right to know who ultimately exercises this power.
Wecht, at *11. The court acknowledged the risk of jury tampering and excessive media harassment, but did not consider those risks to outweigh the benefits of public access. Instead, a district court judge could address those risks on a case-by-case basis, making "particularized" findings showing a compelling government interest and "demonstrating that absent limited restrictions on the right of access, that other interest would be substantially impaired." The court found that in this case the district court judge's findings were largely "conclusory and generic", based on "generalized" and "hypothetical" privacy concerns, and that "the District Court's reasoning would justify anonymity in virtually every jury trial, whether or not it attracts media attention, since almost all defendants have friends and enemies who might be inclined to influence jurors." Id. at *13.
This is a great win for public access to the court system. While privacy concerns for jurors are real, the Third Circuit recognized that such concerns can be addressed on an individual case-by-case basis, and that the default position should be to favor public access. Moreover, as Judge Smith notes, the public interest in openness also coincides with a defendant's interest in justice, as "[c]orruption and bias in a jury should be rooted out before a defendant has to run the gauntlet of trial."
Hat tip to Media Law Prof Blog for alerting us to this decision.
