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Juror privacy rule advances

The Virginia Judicial Council recommended yesterday the adoption of a rule on juror privacy that leaves the matter largely to the discretion of the trial judge rather than having jurors in criminal cases identified only by number as a matter of course.

The original proposal, which would have jurors identified by numbers in all cases, by the state’s Advisory Committee on Rules of Court drew criticism from newspapers, the Virginia Coalition for Open Government, the American Civil Liberties Union of Virginia, and even from Del. Bob Marshall, R-Prince William, who sponsored the legislation that mandated the rule.

Marshall said the rule went much further than anything he had contemplated.
The 2008 legislation, Virginia Code § 19.2-263.3, directed judges to keep personal information about jurors secret from everyone except counsel for either party “for good cause shown.”

Such cause could include “a likelihood of bribery, tampering, or physical injury to or harassment of a juror if his personal information is disclosed.” The statute directed the Supreme Court of Virginia to develop rules to provide for the protection of personal information. The Supreme Court referred the matter to the advisory committee, which reports to the Virginia Judicial Council and the Supreme Court.

The drafters of the original rule were concerned that an effort to impose jury secrecy in some trials but not others would create an implication that the defendant in a trial with secrecy would prejudice the defendant by suggesting that he was especially dangerous.

The new proposed rule tracks the language of the statute and contains no requirement for juror anonymity in a typical case. In presenting the proposal to the Judicial Conference, Kent Sinclair, a University of Virginia law professor and chairman of the advisory committee, said there was little opposition to the less restrictive rule when his committee sought comment on it earlier this year.

The measure moves on to the Supreme Court, which has the final say on the rule.
By Alan Cooper

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