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AJS – Sequestered Juries

Posted by 4love2love on June 29, 2011

Sequestering a jury means keeping all the jurors together in a location separate from their normal abodes, under the care of court authorities, throughout some or all of the trial. Surprisingly, there is not much legal scholarship about sequestration—in fact, there is only one major article on the topic in the last decade: Marcy Strauss, “Sequestration,” 24 Am. J. Crim. L. 63 (1996). Fortunately, it is a very thorough one. Some of Professor Strauss’ conclusions are set forth below.

Although the number of cases in which sequestration is ordered is relatively small, the dread thought of being on a sequestered jury looms large in the public’s mind.

Sequestration is governed by statute in the federal and all state systems. Statutes are of four types:

  • Most jurisdictions do not require sequestration during either the trial or deliberation stages in any kind of case but give the trial judge discretion to order sequestration in any case.
  • Some states require sequestration in certain kinds of cases, but give discretion to the trial judge in all other kinds of cases. The most common kind of case in which sequestration is required is death penalty cases.
  • A few states require sequestration for deliberations but give discretion to the judge concerning whether to order sequestration prior to deliberations.
  • A couple of states require sequestration in certain cases for either the whole trial, or for deliberations, if either litigant requests it.

The reasons for requiring sequestration are some or all of the following:

  • Preventing exposure of the jurors to prejudicial publicity
  • Minimizing pressure from non-jurors for a particular verdict
  • Ensuring juror safety from harassment, threats, or actual violence
  • Promoting a perception of fairness because of assurance of no outside influence

The reasons for not requiring sequestration are:

  • It is financially costly to the government.
  • It risks psychological harm to the jurors if the sequestration period is long.
  • It may be counter to truth-seeking because it:
    • Can lead to a non-representative jury because only limited categories of people are available for a jury that will be sequestered.
    • Can cause jurors to rush to judgment to escape sequestration.
    • Can cause the jurors to identify with the government (as the jury’s caretaker) or against the government (as the jury’s jailer).
    • Can cause lawyers and judges to try to rush the case along to avoid the possibility that the jury will align against the party that seems to be prolonging the case.

Prof. Strauss concludes that the costs of sequestration outweigh its benefits, and that the practice should be abolished.


Juror Stress


Regular participants in the legal system, like lawyers and judges—hardly any of whom have ever served as jurors—often find it difficult to envision the levels of stress that jurors may experience in cases that seem routine to legal professionals, let alone in high-profile cases.  Prof. Thomas Hafemeister, an expert on juror stress, provided the following list of possible sources of juror stress in 41 Advocate 14 (1998) [magazine of the Idaho State Bar]:

  • Receipt of the jury summons, which is often intimidating and confusing
  • Making arrangements in order to be able to report for duty
  • Arriving at court, often in an unfamiliar part of town
  • Insufficient orientation concerning juror responsibilities
  • Being herded around or left unattended without explanation
  • Unpleasant physical facilities in the courthouse and environs
  • Feeling like they are on trial during jury selection
  • Delays (often unexplained) during trial
  • Admonition not to talk about the one thing they have in common—the case
  • Frustration at lack of understanding of what is occurring during the trial
  • Frustration with perceived shortcomings of the attorneys
  • Lengthy trials
  • Having to decide an important matter, and the fear of deciding it wrongly
  • In high-profile cases, fears about what relatives, friends, and the public will think of the decision
  • Deliberating, particularly if rancorous and/or a deadlock develops
  • Difficulty in understanding jury instructions
  • Death penalty cases
  • Grisly evidence, particularly if it is presented visually
  • Emotional reactions of people in the courtroom when the verdict is announced
  • Post-verdict requests to talk about the case

Obviously, the more of these factors that are present in a case, the more likely it is that at least some jurors will experience significant stress.  And certain combinations of circumstances are virtually guaranteed to cause significant stress to all jurors, such as a lengthy death penalty case with grisly visual evidence—particularly if the jurors are sequestered, which is a significant source of stress in and of itself.

Some of these sources of stress could be remedied, and many jurisdictions are striving to do so (see the Jury Improvements portion of this Web site for examples). If these efforts are successfully implemented, then several important sources of stress can be alleviated. But such efforts are a work-in-progress in most places. Further, some sources of stress are simply unavoidable. Thus, many jurors will continue to experience significant stress.

A few courts have pioneered efforts to help with juror stress in extreme cases where many stressors exist. Most often, this involves making available a mental health professional after the verdict to conduct either group or individual debriefings.

The Center for Jury Studies of the National Center for State Courts has literally “written the book” on juror stress. See the handbook and appendicesThrough the Eyes of the Juror: A Manual for Addressing Juror Stress.

Other excellent resources include James E. Kelley, Addressing Juror Stress: A Trial Judge’s Perspective, 43 Drake L. Rev. 97 (1994), and Cynthia A. Joiner, Juror Stress, 16 Pa. Lawyer 25 (1994).


© Copyright American Judicature Society, 2009


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