State v. Sherrie S. Tucker, 2003 WI 12, on certification
For Tucker: Paul LaZotte, SPD, Madison Appellate
Issue/Holding:
¶4. We hold that in accordance with the standard articulated in Britt, if a circuit court restricts any juror information, the court must make an individualized determination that the jury needs protection and take reasonable precautions to minimize any prejudicial effect to the defendant. Therefore, we conclude that the circuit court in this case erroneously exercised its discretion in withholding the jurors’ names from the record because it failed to make an individualized determination that the jury needed protection and failed to take reasonable precautions to minimize any prejudicial effect to Tucker. Nevertheless, we further conclude that the error was harmless based on the overwhelming evidence of Tucker’s guilt….¶27. Based on all the above, we hold that when a circuit court restricts any juror information, the court must: (1) make an individualized determination that the jury needs protection; and (2) take reasonable precautions to minimize any prejudicial effect to the defendant, which includes making a precautionary statement to the jury so that the restriction does not negatively reflect on the defendant’s guilt or character. The circuit court in this case failed to satisfy this two-prong test; however, the error was harmless in light of the overwhelming evidence of Tucker’s guilt.
This was not, strictly speaking an anonymous jury, in that only names and not information was withheld. But due process concerns are raised nonetheless, and anonymous-jury caselaw “is beneficial to our analysis.” ¶11. The court recites the development of this recent trend toward juror anonymity, noting again that serious concerns with respect to presumption of innocence and jury impartiality are implicated by the practice. ¶¶18-19. Therefore, the two-part Britt test is approved: “if a court withholds any juror information, it must both: (1) find that a jury needs protection; and (2) take reasonable precautions to avoid prejudicing the defendant.” ¶19. That test wasn’t satisfied: the trial court indicated that it was using the procedure as a matter of its practice, something inconsistent with the requirement of individualized determination. ¶¶20-21. (Appropriate factors are summarized, ¶22.) And, the trial court failed to take ameliorative action:
¶23 … The circuit court did instruct the jury on Tucker’s presumption of innocence and on the State’s burden of proving guilt beyond a reasonable doubt. However, we conclude that this instruction, by itself, was insufficient. When jurors’ names are withheld, as in this case, the circuit court, at a minimum, must make a precautionary statement to the jury that the use of numbers instead of names should in no way be interpreted as a reflection of the defendant’s guilt or innocence. We recognize that in Britt, the circuit court apparently did not give a precautionary instruction to the jury; however, due to the potential for prejudice to the defendant, we conclude that such an instruction is necessary.
But, because evidence of guilt was overwhelming, the error was harmless. ¶26.
No constitutional right to “public” (i.e., non-anonymous) jury: U.S. v. Lawson, 6th Cir 04-4480, 10/9/08.
