S058116, Opinion — State v. Sundberg

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Argued and submitted September 15, 2010, decision of Court of Appeals reversed;
judgment of circuit court reversed, and case remanded to circuit court for further
proceedings February 19, 2011

STATE OF OREGON,
Respondent on Review,
v.
ARICK TITUS SUNDBERG,
Petitioner on Review.
(CC 05102194; CA A135487; SC S058116)
247 P3d 1213

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CJS, Juries § 490.

On review from the Court of Appeals .*

Dennis N. Balske, Portland, argued the cause and filed
the brief for petitioner on review.

Janet A. Klapstein, Assistant Attorney General, argued
the cause and filed the brief for respondent on review. With
her on the brief were John R. Kroger, Attorney General, and
Jerome Lidz, Solicitor General.

Walter J. Ledesma, Woodburn, filed a brief for amicus
curiae Oregon Trial Lawyers Association.

Before De Muniz, Chief Justice, and Durham, Balmer,
Kistler, Walters, and Linder, Justices .**

BALMER, J.

The decision of the Court of Appeals is reversed. The judg-
ment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.

\* Appeal from the Linn County Circuit Court, Glen D. Baisinger, Judge. 233
Or App 77, 225 P3d 89 (2009).

** Gillette, J., retired December 31, 2010, and did not participate in the deci-
sion of this case. Landau, J., did not participate in the consideration or decision of
this case.

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609-b

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# BALMER, J.

This criminal case requires us to determine the cir-
cumstances, if any, that permit a trial court to empanel an
anonymous jury.1 Defendant was charged with several sex
crimes. At the outset of trial, the trial court ruled that the
names and certain other personal information of prospective
jurors would not be disclosed to the parties, counsel, or the
public. A jury was selected and empanelled, and the jury ulti-
mately found defendant guilty of first-degree sexual abuse
(ORS 163.427) and attempted unlawful sexual penetration
(ORS 161.405(2)(b); ORS 163.411). Although defendant had
objected to the use of anonymous prospective jurors at the
time of jury selection, the Court of Appeals held that his later
actions constituted a waiver of that objection and affirmed
defendant's conviction. State v. Sundberg, 233 Or App 77, 225
P3d 89 (2009). For the reasons set out below, we conclude
that defendant properly preserved, and did not waive, his
objection to the anonymous jury. We further conclude that
the trial court erred in using an anonymous jury without
determining that withholding the names of jurors was justi-
fied on security or other grounds and without taking any
steps to mitigate possible prejudice to defendant.

# FACTS AND PROCEDURAL HISTORY

We take the facts from the Court of Appeals opinion
and the record. In reviewing a judgment of conviction, we
state the facts in the light most favorable to the state. See,
e.g., State v. Gibson, 338 Or 560, 562, 113 P3d 423, cert den,
546 US 1044 (2005) (so stating).

In August 2005, the victim, along with her mother,
siblings, and a friend of her mother's, visited defendant, who
was the victim's uncle. The victim was 10 years old at the
time. While in defendant's yard, defendant gave the victim a
piggyback ride, during which he placed his fingers inside the
victim's underwear and touched the victim in a sexual man-
ner. The victim reported defendant's behavior to her step-
mother, who contacted the police. As noted, defendant was
indicted for various sex abuse crimes and, after a jury trial,

1 We do not address the other issues that defendant raises on review.

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was convicted of attempted sexual penetration and sexual
abuse.

On the day of defendant's trial, another criminal
trial was being held in another courtroom in the Linn County
Courthouse. There were insufficient jurors at the courthouse
that day to conduct voir dire simultaneously for both defen-
dant's trial and the other trial. The two trial judges decided
that voir dire for the other trial would be conducted in the
morning in the courtroom where the other case was being
tried, and then, in the afternoon, jurors who had not been
selected for service in the other case would become part of the
jury pool for defendant's trial. During voir dire in the other
criminal case, prospective jurors revealed their names,
addresses, and places of employment as part of the jury selec-
tion process.

During preliminary proceedings in defendant's trial,
and before voir dire, the trial court told defense counsel that
the court intended to use juror numbers instead of names.
Defense counsel stated that this procedure was new to him
but raised no objection. The court then recessed for approxi-
mately five hours while voir dire was completed in the other
case. That afternoon, at the start of voir dire in defendant's
case, defense counsel stated that he had been unaware that
he would not receive jurors' names at all until "just a little bit
ago." Rather, defense counsel said that he thought that the
trial court's earlier comments meant only that the jurors
would be called by number and that he would still receive a
list of the jurors' names. Defense counsel objected to the
court's procedure, stating that he was concerned that he
would be unable to discover sufficient information about the
jurors. In response, the trial court explained:

"[W]e adopted the procedure partly in response to a concern
of a number of jurors last year, over time, but it kind of cul-
minated last year, that did not want their name known to
litigants, and we checked around and quite a number of the
counties in the state are doing this, not a majority, but a
number of them. So we are doing it and they're referred to
by numbers. And if you want to, you can ask them questions
about their knowledge. A question on voir dire isn't your
knowledge of them, it's their knowledge of you and your
case or the type of case."

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The trial court then overruled defendant's objection. During
voir dire, jurors were told not to reveal their names,
addresses, or the names of their employers.2 Jurors could
state the type of employment in which they were engaged
and describe the area in which they lived, but not give specif-
ics. When some jurors started to identify their employers or
their spouses' employers, the court cautioned them against
doing so.

After the jury returned a guilty verdict, defendant
filed a motion for a new trial under ORCP 64 B(1)3 on the
ground, among others, that the anonymous jury selection
process was an "irregularity" at trial that denied him an
impartial jury and a fair trial in violation of Article I, section
11, of the Oregon Constitution and the Sixth Amendment to
the United States Constitution.4 Defendant asserted that
there was no compelling reason for the trial court to use an
anonymous jury and, more specifically, that defendant was
prejudiced because different procedures had been used dur-
ing voir dire for the other case, where jurors' names were
revealed. Defendant argued that those jurors who had partic-
ipated in or watched voir dire in both courtrooms would have
noticed the different procedures and might have concluded

2 Neither party suggests that different legal principles should apply to the dif-
ferent categories of personal information-names, addresses, employers-that the
trial court directed the prospective jurors not to disclose. The trial court and the
Court of Appeals' rulings also do not distinguish between those categories. For con-
venience, we use the term "anonymous jury" to refer to the individuals in the jury
pool and the empanelled jury in this case whose names, addresses, and employers
were withheld from the parties at the direction of the trial court.

3 ORCP 64 B provides, in part:

"A former judgment may be set aside and a new trial granted in an action
where there has been a trial by jury on the motion of the party aggrieved for
any of the following causes materially affecting the substantial rights of such
party:

"(1) Irregularity in the proceedings of the court, jury or adverse party, or
any order of the court, or abuse of discretion, by which such party was pre-
vented from having fair trial."

ORS 136.535 provides that ORCP 64 B applies to motions for new trial in criminal
cases.

4 Article I, section 11, provides, in part, that "[i]n all criminal prosecutions, the
accused shall have the right to public trial by an impartial jury[.]" The Sixth
Amendment to the United States Constitution provides, in part, that "[i]n all crim-
inal prosecutions, the accused shall enjoy the right to a speedy and public trial, by
an impartial jury[.]"

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that defendant was dangerous, thus violating defendant's
right to an impartial jury and to the presumption of inno-
cence.5 The trial court denied defendant's motion.

Defendant appealed, assigning error, inter alia, to
the trial court's denial of his motion for a new trial. The Court
of Appeals affirmed, concluding that defendant had waived
any right to a new trial based on jury irregularities by not
objecting before the jury returned a guilty verdict. Sundberg,
233 Or App at 88. The Court of Appeals noted that defendant
did not ask the trial court to make findings to justify the use
of an anonymous jury, did not request any cautionary
instruction to mitigate any adverse inference that the jury
might draw from that procedure, and did not assert that the
procedure implied any dangerousness on defendant's part.
Id. As to the fact that juror names were disclosed during jury
selection in the other trial, the Court of Appeals concluded
that defendant knew that a number of jurors had gone
through voir dire previously and should have inquired fur-
ther about the procedures in that courtroom if defendant had
concerns about the propriety of voir dire in his trial. In the
Court of Appeals' view, defendant "knew of and failed to
object to those purported irregularities," id., and therefore
waived any right to a new trial based on them. Id. at 89.

# PRESERVATION

It is undisputed that defendant objected during jury
selection when he learned that he would not receive the
names of jurors, stating that he would be unable to gather
sufficient information about them to conduct adequate voir
dire. Although defendant did not cite the Oregon or United
States constitutions at that time, his concern that the proce-
dure would hinder his ability to obtain an impartial jury was
apparent. The trial court overruled his objection. Defendant
then raised the objection again in his motion for a new trial,
this time asserting that the anonymous jury procedure vio-
lated state statutes and the Oregon and United States con-
stitutions. In addition to arguing that he was prevented from
conducting adequate voir dire, defendant, in his motion for a

5 Some of the prospective jurors in defendant's trial had participated in voir
dire in the other courtroom; however, the record does not indicate whether any of
them were selected for defendant's jury.

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new trial, also asserted that the unexplained use of anony-
mous prospective jurors would cause jurors to think that
defendant was dangerous, and he cited a federal case for that
proposition. Thus, defendant preserved his core claim-that
he was entitled to have access to juror names during jury
selection-by putting the trial court on notice when that pur-
ported error occurred and providing the court an opportunity
to correct it, see State v. Haugen, 349 Or 174, 199, 243 P3d 31
(2010) (preservation requirement intended to allow trial
court to correct errors as they occur), and, in his motion for a
new trial, he articulated additional reasons that he believed
the use of an anonymous jury was error and cited appropriate
legal authorities for that position.

The state nevertheless argues that defendant's
objection was not preserved because he failed to ask the trial
court to make findings to support its decision to empanel an
anonymous jury. That argument ignores the trial court's
statement, in response to defendant's initial objection, that
the circuit judges in Linn County had "adopted the proce-
dure" of using anonymous juries and "we are doing it."
Clearly, the trial court's view was that the procedure had
been adopted as a general rule, that the court was going to
follow the procedure, and that findings were not needed to
justify the procedure in any particular case. Similarly, the
state faults defendant for not requesting a jury instruction
that would have provided a neutral explanation for the anon-
ymous jury and mitigated any prejudice to him. However,
defendant's central argument-in his motion for a new trial
and on appeal-was not based on a claim that the trial court
erred in failing to give a particular instruction, but rather on
the claim that the use of an anonymous jury without any
determination by the trial court that anonymity was neces-
sary to protect the jurors from harm, intimidation, or harass-
ment violated his right to trial by an impartial jury.

The state is correct that, in making his initial objec-
tion in the trial court, defendant did not argue that the anon-
ymous jury procedure compromised the presumption of inno-
cence to which he was entitled under Article I, section 11, or
the Sixth Amendment. However, defendant did express con-
cern about his ability to conduct adequate voir dire if he was
not permitted to know the names, addresses, and employers

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of the prospective jurors or their spouses. That concern
directly implicates a defendant's right to an "impartial jury"
that is protected by Article I, section 11. Nothing suggests
that this is a situation where a party "learns the facts"
regarding an irregularity during trial and "suppress[es]
those facts, in the hope of a favorable verdict, and then
rel[ies] upon the same facts after an adverse verdict has been
returned" to file a motion for a new trial. See Moore v. Adams,
273 Or 576, 579, 542 P2d 490 (1975) (stating that motion for
new trial should not be granted in those circumstances).
Defendant's objections prior to voir dire and in his new trial
motion sufficiently preserved for appeal his argument that
the trial court's use of an anonymous jury violated his Article
I, section 11, rights. See State v. Hitz, 307 Or 183, 188, 766
P2d 373 (1988) (distinguishing between raising an "issue at
trial," identifying a "source for a claimed position," and "mak-
ing a particular argument," and asserting that only the first
is "essential").

# MERITS

Anonymous jury selection is an issue of first impres-
sion for this court. We begin by examining the grounds
offered by the trial court for empanelling an anonymous jury.
If the trial court was without authority to bar the parties
from learning the identities of prospective jurors, then the
trial court in this case erred in doing so, and we need not con-
sider defendant's constitutional arguments.

At the hearing on defendant's motion for a new trial,
the court stated that anonymous juries, as used in Linn
County, were expressly authorized by ORS 10.205(2),6 and
the state takes the same position before this court. We disa-
gree that the statute addresses the procedure that the trial
court invoked in this case. By its terms, ORS 10.205(2) allows
the presiding judge to pair juror names with numbers and

6 ORS 10.205(2) provides:

"The presiding judge for the judicial district may authorize the use of juror
identification numbers in place of juror names in the performance of functions
under ORS 10.215 to 10.265, 132.020 and ORCP 57 B for the selection of jurors
in the county, except for functions under ORS 10.215(4) and 10.225(3), when to
do so would promote the efficiency of the selection process, but the selection
must be done randomly."

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then to use those numbers to compile jury lists and select
jurors in order to "promote efficiency of the selection process."
Nothing in the statute suggests that it was intended to
authorize a trial court to prevent parties from learning the
names, employers, and other identifying information about
prospective jurors during voir dire. The trial court here did
not simply "use juror identification numbers in place of juror
names" to "promote efficiency" in the selection process, but
rather viewed the statute as authority to withhold the names
and other information regarding individual jurors. Indeed,
the rationale offered by the trial court when defendant
objected to the procedure was not efficiency or administrative
convenience, but rather that previous jurors in the county
had not wanted their names disclosed to litigants.7

Although ORS 10.205(2) does not itself address or
authorize anonymous juries, trial courts traditionally have
had wide latitude in conducting the trials over which they
preside, including jury selection and voir dire. See, e.g., State
v. Barnett, 251 Or 234, 237-38, 445 P2d 124 (1968) (“The
scope of voir dire examination is in the trial court's discre-
tionary power to efficiently and expeditiously conduct the
trial."); Ross v. Oklahoma, 487 US 81, 88, 108 S Ct 2273, 101
L Ed 2d 80 (1988) (peremptory challenges "are a means to
achieve the end of an impartial jury" but are not constitution-
ally required). And while this court has not previously
addressed the issue of whether trial judges have authority to
empanel anonymous juries, state and federal courts that
have considered the issue have concluded that they do-in
limited circumstances. See, e.g., U. S. v. Amuso, 21 F3d 1251,
1264 (2d Cir), cert den, 513 US 932 (1994) (trial court may use
anonymous jury to protect jurors' privacy and security, but
also must protect defendant's presumption of innocence and
right to conduct voir dire); U. S. v. Paccione, 949 F2d 1183,
1192 (2d Cir 1991), cert den, 505 US 1220 (1992) (trial court
may use anonymous jury if court determines there is "strong

? Defendant does not suggest, and the record does not reflect, that the trial
court used the anonymous jury procedure in bad faith or out of any ill will towards
defendant. Rather it seems clear that the trial court was simply implementing a
policy that apparently had been agreed upon by the Linn County circuit judges.
The record does reflect, however, that some jury trials in Linn County-including
the criminal trial being conducted in another courtroom at the same time as defen-
dant's trial-did not use anonymous juries.

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reason" to protect jury and court takes steps to minimize
"prejudicial effects" on defendant and protects defendant's
"fundamental rights"); Commonwealth v. Angiulo, 415 Mass
502, 527, 615 NE 2d 155, 171 (1993) (anonymous jury per-
mitted on case-specific basis based on written findings; trial
court must take steps to protect defendant's constitutional
rights); State v. Ross, 174 P3d 628, 636 (Utah 2007) (trial
court has discretion to use anonymous jury, but must find
"compelling reason" based on jury protection and take
reasonable precautions to protect defendant's rights).

In the absence of any indication that Oregon law
imposes an absolute prohibition on a trial court's use of an
anonymous jury, we conclude that trial courts have the
authority to require that the jury be seated without disclos-
ing the names, addresses, and employers of prospective
jurors to the parties. Like other decisions concerning the con-
duct of a trial, however, the trial court's authority to empanel
an anonymous jury must be exercised consistently with the
defendant's constitutional rights.

Accordingly, we turn to defendant's argument that
the trial court's use of an anonymous jury in this case vio-
lated his Article I, section 11, right to "trial by an impartial
jury." Defendant identifies two different ways in which the
trial court's decision to empanel an anonymous jury violated
that right. First, he asserts that, without knowing the names,
addresses, or employers of jurors, his ability to conduct ade-
quate voir dire and obtain the constitutionally guaranteed
"impartial" jury was impaired. Second, he argues that the
trial court's use of an anonymous jury-without any expla-
nation to the jury about why they were prohibited from dis-
closing their names, addresses, or employers-may have
caused the jury to conclude that defendant was dangerous,
thus threatening the presumption of innocence to which he
was constitutionally entitled.

Defendant agrees that there are circumstances in
which an anonymous jury would be constitutionally permis-
sible, but argues that in this case the trial court made no find-
ings as to any need to protect jurors by ensuring their ano-
nymity and also failed to take any other steps to minimize
possible prejudice to him. Defendant suggests that this court,

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in applying Article I, section 11, should adopt a version of the
test used by a number of federal and state courts, which per-
mits an anonymous jury only when the trial court determines
that "there is a strong reason to believe that the jury needs
protection" and takes "reasonable precautions to minimize
any prejudicial effects on the defendant and to ensure that
his fundamental rights are protected." Paccione, 949 F2d at
1192.

The state responds that legitimate concerns about
security, privacy, and intimidation often will support a trial
court's decision to protect juror identities. Further, the state
argues, juror anonymity will rarely be problematic, because
specific names and addresses will rarely have any bearing on
juror bias; rather, it is the jurors' personal experience with
the type of crime in question and their knowledge of counsel,
parties, and witnesses that is relevant to possible bias. Those
matters, the state urges, can be sufficiently probed during
voir dire even if the jurors' names are not disclosed. As to the
concern that an anonymous jury may suggest a defendant's
guilt, the state asserts that there is no basis for jurors to
assume that anonymous juries are not routine and that
jurors thus are unlikely to view a defendant in a case with an
anonymous jury as dangerous.

In assessing defendant's argument that the use of an
anonymous jury violates Article I, section 11, we first con-
sider the wording of that provision, the historical circum-
stances that gave rise to it, and the case law interpreting it.
Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992). Noth-
ing in the text or historical background of Article I, section
11, indicates that a defendant's right to an "impartial jury"
includes a constitutional right to be provided with the names
of jurors. The practice, in Oregon and elsewhere in the coun-
try, since before ratification of the Oregon Constitution, has
been for jurors' names to be known. See W. H. Gray, A History
of Oregon 396 (1870) (documenting jurors' names in 1845
trial in Willamette Valley); Kory A. Langhofer, Unaccounta-
bility at the Founding: The Originalist Case for Anonymous
Juries, 115 Yale LJ 1823, 1825 (2004) (noting that jurors'
names were generally known to litigants in late 1700s). Aside
from the fact that litigants ordinarily had access to jurors'

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names, however, nothing in the historical or legal record sug-
gests that access to juror names was itself considered a con-
stitutional right.

We turn to our cases discussing Article I, section 11,
more generally. In State v. Amini, 331 Or 384, 15 P3d 541
(2000), this court analyzed the impartial jury requirement of
Article I, section 11, and concluded:

"The * * * history of trial by jury reveals that, by the
eighteenth century, the requirement of an impartial jury
reflected several related concerns, including that jurors be
honest, that they not be interested in the outcome of the
case, and that they be free from influence by the parties,
particularly by the state."

Id. at 391. An "impartial jury," then, is one "that is not biased
in favor of or against either party, but is influenced in making
its decision only by evidence produced at trial and legal stan-
dards provided by the trial court." Id.

More recently, we relied on Amini in State v. Cavan,
337 Or 433, 445, 98 P3d 381 (2004), in concluding that the
impartial jury guarantee also protects a defendant from
"impermissible influences of [the trial] environment" that
imply a defendant's guilt to the jury. In Cavan, the defen-
dant, an inmate accused of assaulting a corrections officer,
was tried in a courtroom that was located in the visitor's cen-
ter of the Snake River Correctional Institution. Jurors were
screened through metal detectors and required to store their
personal belongings outside the courtroom; the prison doors
were locked behind them after they entered. This court held
that holding the trial in a prison, "an inherently dangerous
place[,]" deprived the setting of the "aura of neutrality" that
attends a public courthouse and implied to the jury "the over-
riding impression of a defendant's dangerousness and *
by extension his * * * guilt" in violation of Article I, section
11. Id. at 448. We cited earlier cases in which we had
"acknowledged the possibility that external factors may
influence jurors after they have been impaneled and that
such forces may affect the jurors unconsciously." Id. at 445,
citing State v. Montez, 309 Or 564, 575, 789 P2d 1352 (1990).
For example, the concern that jurors will consider a defen-
dant who appears in court in shackles or other visible

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restraints to be dangerous-thereby undermining the pre-
sumption of innocence-is the basis for decisions requiring
that a trial court make specific findings of fact to support a
conclusion that restraints are necessary before the court may
permit or require them. See State v. Farrar, 309 Or 132, 156,
786 P2d 161 (1990) (illustrating proposition). 8

We agree with defendant that Amini and Cavan
demonstrate that the impartial jury guarantee protects a
defendant both from individual jurors who are biased and
from external factors, such as courtroom conditions, suggest-
ing a particular defendant's dangerousness or guilt. The
"touchstone of impartiality" is "the juror's ability to set aside
any pre-existing opinions or impressions" and to decide the
case based on the facts and law presented at trial. State v.
Evans, 344 Or 358, 362, 182 P3d 175 (2008). Empanelling an
anonymous jury can affect a defendant's right to such an
impartial jury, first, by hindering his ability to conduct voir
dire and select jurors who are impartial, and second, because
it is an external factor-not the facts or the law-that may
compromise the jury's ability to remain impartial by imply-
ing that a defendant is dangerous, thus undermining the pre-
sumption of innocence. See Cavan, 337 Or at 448-49 (trying
defendant in courthouse located in prison for crime commit-
ted in that prison created trial environment that was incom-
patible with jury impartiality). To be sure, anonymity may
also imply a legitimate concern for juror privacy unrelated to
the dangerousness of a defendant. But in a criminal case,
there is a significant risk that members of the jury might
infer that their names were being withheld to protect them
from defendant or others acting on his behalf.9

8 Similarly, under the United States Constitution, certain treatment of crimi-
nal defendants, like requiring them to wear prison clothes or appear in shackles
before a jury, may suggest that the defendant is dangerous and thereby imply guilt
in violation of the Sixth and Fourteenth Amendments, in the absence of sufficient
justification. See Estelle v. Williams, 425 US 501, 504-05, 96 S Ct 1691, 48 L Ed 2d
126 (1976) (requiring defendant to wear prison clothes unconstitutional); Illinois v.
Allen, 397 US 337, 344, 90 S Ct 1057, 25 L Ed 2d 353 (1970) (shackling defendant
impairs the presumption of innocence but may be justified in compelling
circumstances).

9 Other courts have reached similar conclusions. See, e.g., U. S. v. Ross, 33 F3d
1507, 1519 (11th Cir 1994), cert den, 515 US 1132 (1995) ("An anonymous jury
raises the specter that the defendant is a dangerous person from whom jurors must
be protected, thereby implicating the defendant's constitutional right to a pre-
sumption of innocence.").

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The state is correct that voir dire can be conducted
without knowing the jurors' names, addresses, and employ-
ers, and we do not suggest that disclosure of such information
always is necessary to achieve an impartial jury. However,
knowing those facts obviously facilitates effective selection of
an impartial jury and, in some cases, may be crucial. If
McCoy is on trial, she will want to know if any of the prospec-
tive jurors are Hatfields.

Additionally, the state's argument that anonymous
juries do not suggest guilt is essentially circular: If anonym-
ity were the norm, jurors would view it as normal. That is
true, of course, but the historical practice, in Oregon and else-
where, is that juror identities generally have been known to
litigants. The withholding of juror names has not been the
norm. And, in this case, at least some prospective jurors had
the personal experience on the very day of defendant's trial-
based on participating in voir dire in the other trial-of their
names and other indentifying information being disclosed as
part of the jury selection process.

We agree with the other state and federal courts that
have held that anonymous juries are permissible only if the
trial court "concludes that there is a strong reason to believe
that the jury needs protection" and the court takes "reason-
able precautions to minimize any prejudicial effects on the
defendant and to ensure that his fundamental rights are pro-
tected." Paccione, 949 F2d at 1192; see also U. S. v. Fernandez,
388 F3d 1199, 1244 (9th Cir 2004), cert den, 544 US 1043
(2005); U. S. v. Ross, 33 F3d 1507, 1519 (11th Cir 1994), cert
den, 515 US 1132 (2005); State v. Ross, 174 P3d 628 (Utah
2007); State v. Ivy, 188 SW 3d 132 (Tenn 2006), cert den, 549
US 914 (2006) (all to similar effect). Under the first part of
that test, the trial court must make a determination that the
circumstances of the particular trial provide sufficient
grounds to believe that jurors need the protection provided by
anonymity. One federal court identified a nonexclusive list of
factors to be considered in deciding when it is appropriate to
withhold juror names:

"(1) the defendants' involvement with organized crime;

(2) the defendants' participation in a group with the capac-
ity to harm jurors; (3) the defendants' past attempts to

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interfere with the judicial process or witnesses; (4) the
potential that the defendants will suffer lengthy incarcera-
tion if convicted; and (5) extensive publicity that could
enhance the possibility that jurors' names would become
public and expose them to intimidation and harassment."

Fernandez, 388 F3d at 1244; see also U. S. v. Branch, 91 F3d
699, 724 (5th Cir 1996), cert den, 520 US 1185 (1997) (ano-
nymity justified in light of extensive media attention). While
we do not endorse any particular list of "factors," we believe
that a trial court has the authority to protect jurors from the
risk of physical harm, intimidation, or harassment-whether
by parties, the press, or the public-by withholding juror
names and other identifying information. But a determina-
tion that such a risk exists must be made on the facts of each
case-and not on the basis of a generalized desire to protect
the anonymity of all jurors in all cases in the interests of juror
privacy.10 See State v. Tucker, 259 Wis 2d 484, 498-99, 657
NW 2d 374, 381 (2003) (court erred in adopting practice of
empanelling anonymous juries in all drug cases without indi-
vidualized determination of need).

If grounds exist to empanel an anonymous jury, then
the trial court may do so, but it must take reasonable precau-
tions to ensure that the defendant's right to an impartial jury
is protected. Those steps may differ depending on the circum-
stances at trial. In U. S. v. Lawson, 535 F3d 434 (6th Cir
2008), for example, the trial court mitigated the potentially
adverse effect of anonymity on jury selection by permitting
extensive voir dire regarding "each prospective juror's

10 We note, in passing, another reason that has been offered for disclosure of
juror identities, at least in the absence of specific grounds for maintaining anonym-
ity. In State v. Lewis, 18 Or App 206, 524 P2d 1231 (1974), the Court of Appeals
reversed a criminal conviction because the jury poll was conducted anonymously;
that is, the jurors, who had voted 10-2 for conviction, did not have to indicate which
of them voted for or against conviction. The court interpreted the statute author-
izing the jury poll to prohibit an anonymous poll, because that would "permit[ ]
each juror to effectively avoid his individual responsibility to the defendant and the
public." Id. at 210. The court acknowledged that "fear of reprisal" might have been
the basis for the jurors' desire for anonymity, but concluded that that concern was
not supported by the record. The court stated, "If the institutions we profess to
cherish are to continue we cannot cast them aside on every occasion on which it
appears expedient to do so." Id. at 211. That argument against anonymity in the
jury trial process was not asserted by defendant here, however, and we do not rely
on it in this case.

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community of residence, education, and type of work experi-
ence." Id. at 440. And to counter any suggestion that the use
of an anonymous jury means that a defendant is dangerous
and, by inference, guilty, trial courts have provided neutral
explanations for withholding juror identities. See Fernandez,
388 F3d at 1245 (trial court took sufficient steps to protect
defendant by offering jury neutral explanation for anonymity
focused on juror confidentiality and suggestion that anony-
mous juries were routine); Ross, 174 P3d at 638 (trial court
"should give anonymous jurors a plausible and nonprejudi-
cial reason for not disclosing their identities that decreases
the probability that the jurors would infer that defendant is
guilty or dangerous"); Lawson, 535 F3d at 440 (trial court
explained that anonymous jury was needed to ensure fair
trial, given large number of defendants and prospective
jurors).

Having set out the analysis to be followed to deter-
mine whether the use of an anonymous jury violates a defen-
dant's Article I, section 11, right to an impartial jury, we
return to the facts of this case. As noted, when defendant
objected to the anonymous jury, the trial court announced
that the Linn County circuit judges had agreed to withhold
the names and other identifying information of prospective
jurors and that the trial court would "follow that procedure"
in defendant's case. The trial court stated that the procedure
was adopted because some jurors in the past had objected to
the disclosure of their names to litigants. The trial court also
indicated that the procedure was being used in all jury trials
in the county, although, as it turned out, juror names were
disclosed in another criminal trial being conducted in the
same courthouse on the same day as defendant's trial. The
trial court did not explain to the jurors why they were not
allowed to disclose their names during voir dire, nor did the
court give any neutral explanation, either before trial or as
part of the jury instructions, for the anonymous jury
procedure.

This court's standard of review of a trial court's denial
of a motion for a new trial depends on the nature of the
alleged trial court error. When a party asserts that the trial

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court erred in ruling on a matter that is committed to the dis-
cretion of the trial court, we review for abuse of that discre-
tion. See, e.g., Farrar, 309 Or at 158 (reviewing trial court's
decision to shackle defendant during trial for abuse of discre-
tion). However, when the alleged irregularity at trial is based
on a matter of law, we review for legal error. See Bennett v.
Farmers Ins. Co., 332 Or 138, 151, 26 P3d 785 (2001) (so stat-
ing). Here, defendant argues that the trial court violated his
right to an impartial jury under Article I, section 11, by
empanelling an anonymous jury without making findings
that the circumstances of his case justified withholding juror
names and without taking steps to mitigate any adverse
impact of that action, such as giving the jury a neutral expla-
nation of the reason for the anonymous jury. Although defen-
dant asserts at one point is his brief that the trial court
"abused its discretion," his central argument is not that the
trial court erred in exercising its discretion to empanel an
anonymous jury, but rather that it failed to exercise discre-
tion at all.11 In our view, that is a legal argument that defen-
dant was denied his Article I, section 11, right to an impartial
jury.

We agree with defendant that the trial court did not
make any findings that would support the use of an anony-
mous jury in this case. Because, for the reasons discussed
above, Article I, section 11, permits an anonymous jury only
when the trial court finds that the circumstances of a partic-
ular case justify that practice and takes steps to mitigate any
prejudice to defendant, we conclude that the trial court erred.

Having determined that the trial court erred, we
must now decide if that error was harmless.12 An error is
harmless if there is little likelihood that it affected the
verdict. State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). As
discussed above, the use of an anonymous jury can cause

11 If the trial court had made a determination that the circumstances of defen-
dant's case justified the use of an anonymous jury and had taken steps to ensure
defendant's right to an impartial jury-and had defendant been convicted and
asserted on appeal that the anonymous jury violated his Article I, section 11,
rights-then we would review the trial court's ruling under an abuse of discretion
standard.

12 We note that the state has not argued that, if the trial court erred in empa-
nelling an anonymous jury, that error nevertheless was harmless.

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prejudice to a defendant by suggesting to jurors that the
defendant may be dangerous and, by extension, guilty. See
Cavan, 337 Or at 448 (impression of dangerousness may
imply guilt of defendant and violate right to trial by impartial
jury). That implication undermines the presumption that the
defendant is innocent. The possibility that jurors might draw
such an implication was heightened in this case because a
number of prospective jurors had participated in standard
voir dire, where they had disclosed their names, addresses,
and employers, on the same day in another courtroom. More-
over, the risk that the use of an anonymous jury may have
prejudiced the defendant was particularly great in this case.
The indictment charged two sexual offenses arising out of a
single incident. There was no physical evidence of abuse and
there were no witnesses to the alleged abuse, other than
defendant and the victim. Much of the trial testimony
revolved around the credibility of both defendant and the vic-
tim. In contrast to cases in which there is physical evidence of
harm, expert testimony regarding DNA or other evidence
linking defendant and victim, or other witnesses who provide
admissible independent testimony to support the state's case,
this case, in large part, turned on whether the jury believed
defendant or the victim.

In the circumstances of this case, the unexplained
use of an anonymous jury created too great a risk that the
jury may have believed that defendant was dangerous-and,
therefore, that he was more likely to be guilty, denying defen-
dant the right to a trial by an impartial jury. The error was
not harmless, and defendant is entitled to a new trial.13

The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.

13 Because we reverse the judgment of conviction on the anonymous jury issue,
we do not reach defendant's claim that the use of metal detectors also violated his
right to an impartial jury in violation of Article I, section 11. Similarly, because we
decide this case under the Oregon Constitution, we do not address defendant's fed-
eral constitutional claims.