Schmidt, Sethi & Akmajian Blog

Constitution: First Amendment Allows Innominate Juries

Posted by Ted A. Schmidt | Jun 14, 2022 | 0 Comments

Morgan v. Dickerson, No. CV-21-0198 (June 14, 2022) (J. Timmer)

Cochise County uses “innominate juries”—prospective and impaneled jurors are referred to by a number and not their name in public (though court and parties know identities)-- for all criminal trials. In two such criminal trials, while innominate juries were used without objection from the parties, journalist David Morgan intervened unsuccessfully attempting to get the names of both prospective and impaneled jurors in the cases. Morgan argued the First Amendment provides a qualified right to public access to juror's names during voir dire absent a compelling state interest to maintain secrecy.  The trial courts disagreed so Morgan brought this special action. The Arizona Court of Appeals consolidated the two cases while upholding the trial court rulings. The Arizona Supreme Court accepted review of the court of appeals decision which it vacated in part while affirming the trial court. 

“The list of juror names or other juror information shall not be released unless specifically required by law or ordered by the court.” A.R.S. § 21-312(A); see also Ariz. R. Sup. Ct. 123(e)(10); Ariz. R. Crim. P. 23.3(b) Morgan argues this Arizona law is in conflict with the First Amendment to the U.S. Constitution applied to Arizona through the Fourteenth Amendment.

While the First Amendment implicitly guarantees the public and press the right to attend criminal trials, it is a qualified right. In Press-Enter. Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 8, 13 (1986) the United States Supreme Court outlines how to draw the line on questions such as this. Look to whether historically the “process” has been open to the press and public then ask yourself the question of “whether public access plays a significant positive role in the functioning of the particular process in question.”

Here the Arizona Supreme Court finds that historically jurors names have been revealed during voir dire in Arizona courts.  Likewise, “open proceedings play a significant positive role in voir dire by checking the courts to ensure established standards are being used to select jurors and by simultaneously assuring the public that fairly selected jurors are holding offenders to account for their crimes.” That said, public access to the  actual juror's names does not play a “significant positive role” in accomplishing these goals.

In sum, public access to jurors' names promotes neither
fairness in voir dire proceedings nor the perception of fairness. As such,
it does not play a significant positive role in the functioning of voir dire,
and we answer the logic inquiry in the negative. Consequently, the First
Amendment does not provide the press or public with a qualified right to
access jurors' names, and § 21-312(A) is facially valid.

Trial courts have discretion as to whether or not to allow access to juror names. If a request for the names is denied, trial courts are encouraged to explain their reasoning on the record.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Our team works together - for you!

Our award-winning lawyers are backed by a talented, caring team of legal professionals, paralegals, bilingual assistants, notaries, and others - all dedicated to you, your case, and the compensation you deserve.

No fees and no costs until we win.

As such we always have your case and your best interest in mind. When you win, we win too by providing the best legal care possible.

Thorough investigation and preparation.

We tirelessly and thoughtfully prepare every case we represent as though it was going to trial. This lets insurance companies know that we are a force to be reckoned with. As such, we settle successfully 98% of the time.