Secret Juror Investigations in Maricopa County Raise Serious Concerns

ABC15 recently reported that prosecutors with the Maricopa County Attorney’s Office used detectives and a confidential FBI database to secretly investigate jurors in a death penalty case.

As a criminal defense attorney, I think this raises some serious concerns.

According to ABC15’s reporting, prosecutors first asked the judge to remove certain jurors based in part on their demeanor and body language. The judge denied that request. Prosecutors then allegedly had detectives run those jurors through the National Crime Information Center (NCIC) without telling the judge, the defense, or the jurors themselves.

That is where this becomes troubling.

Attorneys are allowed to investigate issues involving potential jurors. We ask questions during jury selection, review questionnaires, and sometimes look at publicly available information. But this is much different.

Arizona also eliminated peremptory challenges in jury trials in 2022, meaning attorneys generally cannot remove a prospective juror without establishing a legal basis for doing so. That makes transparency especially important when one side seeks additional information about a juror after a challenge for cause has been denied.

If a judge refuses to remove a juror, the State should not be able to turn around and use confidential law-enforcement resources to search for additional information that the defense cannot access.

That creates an unfair advantage for the prosecution and, at least in my opinion, starts to look like an abuse of the system.

What About the Jurors’ Privacy?

There is also a major privacy issue here.

Jurors are ordinary people being asked to perform their civic duty. We expect them to come into court, answer personal questions honestly, and trust that the system is fair.

They should not have to wonder whether prosecutors are secretly searching law-enforcement databases for information about their past simply because the State does not like an answer they gave during jury selection.

ABC15 reported that legal experts raised concerns that this practice could discourage people from serving on juries and further damage public confidence in the justice system. That could have a significant impact on jury pools moving forward.

Our system only works if jurors trust the process. If people start believing that showing up for jury duty could result in the government quietly digging through their history, that trust disappears pretty quickly.

The Legal Questions Have Not Been Resolved

To be clear, no Arizona court has yet ruled that this specific practice is illegal. There are still real legal questions that need to be answered.

But regardless of where the legal line is ultimately drawn, there should be clear rules and transparency because jurors are not suspects.

If the State believes there is a legitimate reason to investigate a juror using confidential law-enforcement resources, a judge should know about it and the defense should know about it.

We cannot ask the public to trust the justice system while allowing one side to secretly investigate the very people we depend on to make that system work.

This commentary discusses reporting by ABC15 Chief Investigator Dave Biscobing. For additional reporting, court records, responses from the Maricopa County Attorney’s Office, and commentary from legal experts, read ABC15’s original investigation.