When Do Judges Sequester Juries?

Plus, why the accused Beltway sniper’s judge did not.

Jurors in the trial of accused Beltway sniper John Allen Muhammad aren’t being sequestered, despite the intense media attention. How do judges determine when it’s appropriate to sequester a jury?

Sequestration has fallen so far out of favor that judges rarely bother anymore. The current thinking is that isolating a jury causes more problems than it solves. For one, it can increase juror dropouts. Those with family responsibilities can’t stomach more than a few nights away from home, and they often end up leaving midcase due to “personal circumstances.” The departures, in turn, increase the likelihood of a mistrial. And there are serious concerns that the eagerness of jurors to return home could compel them to deliberate hastily.

When a judge does decide to sequester a jury, it’s often because there’s a critical piece of inadmissible material being discussed in the press—for example, a suppressed confession. Or there may be the threat of harassment from reporters, protesters, or the defendant’s criminal associates. Less frequent nowadays is a sequestration based solely on the high-profile nature of a case; such reasoning became less popular after the 1995 O.J. Simpson trial, which featured a long sequestration that some legal observers regarded as counterproductive. In the Muhammad case, the fact that the trial is not being televised probably helped the judge decide against sequestration. When the jurors return home at night, under strict instructions not to view or read press accounts of the trial, it’s obviously easier without the day’s testimony plastered all over the TV.

There are a few states that have mandatory sequestration laws for the most serious criminal cases. Missouri, for example, requires that juries in death-penalty cases be sequestered. But in general, the decision is left solely to the trial judge. Either the prosecution or the defense can request a sequestration, but such motions are usually denied. There are no nationwide figures on the percentage of juries that are sequestered, but it’s certainly tiny.

New York used to have the nation’s strictest sequestration law, which required juries in all violent felonies to be shipped off to a hotel if their deliberations lasted even one night. As a result, 12,000 jurors a year were sequestered. The controversial law was axed in 2001, though not until the state cut a deal with the court officers union. The union was worried that its members would lose valuable overtime, safeguarding sequestered jurors’ hotel rooms. The state assuaged the officers by making sure they received time-and-a-half for other trial-related duties, like escorting jurors to bus stations at night.

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Explainer thanks G. Thomas Munsterman of the Center for Jury Studies at the National Center for State Courts.