Free Speech

Navy-Marine Appeals Court Mandates Pseudonymizing Names of Witnesses, Victims, and Complainants

|The Volokh Conspiracy |

Effective July 1, 2020, the rules of the Navy-Marine Corps Court of Criminal Appeals (NMCCA, not to be confused with the New Mexico Court of Appeals, NMCA) provide:

Rule 17.4. Personally Identifiable and Sensitive Information.

(a) Counsel are required to redact private and sensitive information from all pleadings.

(b) … (1) … The names of all complainants, victims, and witnesses, other than the Accused, shall be replaced with a pseudonym, following the procedure set out in Rule 17.5.

Rule 17.5. Table of Pseudonyms.

(a) With the exception of merits briefs, all initial briefs in support of an appeal or petition shall include a separate table of pseudonyms filed with the Court under seal. Notwithstanding the fact that the table is filed under seal, the party filing the table will serve an unredacted copy of the table upon all other parties to the appellate litigation. Absent Order of the Court, all parties and the Court shall use the assigned pseudonyms in all filings, orders, and opinions.

(b) The table of pseudonyms shall include the name of, and a pseudonym for, every complainant, victim, and witness that testified at trial and any other person, living or deceased—other than the Accused, counsel, and the military judge(s)—that the party references in the brief. [EV notes: Surely this must be limited to people involved in this case, and not people mentioned in precedents, authors of cited articles, famous people used by analogy, etc. -EV] …

(d) The pseudonyms shall be constructed using the same first and last initials of the individual's actual name, replacing the first name with a gender-corresponding different name and replacing the last name with a generic name using the phonetic alphabet, Greek alphabet, or similar generic common name. Each individual should be given a unique first and last pseudo name, except that related individuals sharing the same actual last name should be given the same pseudo last name. Counsel should not attempt to use pseudonyms that necessarily correspond to the individual's racial or ethnic background.

[Examples from Appendix K:] SA Michelle Bravo, Mrs. Roseanne Bravo, SN Nora Echo, Mr. Tracy Baker, GySgt Jerry Sierra, Dr. Alex Foxtrot.

What do you folks think, other than looking forward to all the Foxtrots, Novembers, Quebecs, and Uniforms? Worthwhile promotion of privacy, serious interference with public right of access to court records, both, neither? Does it matter that this is the military justice system, rather than normal state or federal court.

Rumors that the NMCCA almost opted for the alternative of using witnesses' porn star names appear to be unfounded. Thanks to Prof. Eric Freedman and Prof. Brenner Fissell (CAAFlog) for the pointer.

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  1. Mmm, I don’t like the idea of anonymous accusers and witnesses. There is incentive to not spread rumors and conjecture as fact when your name is tied to to what you say.

    1. I don’t think this is a great idea, and I think it would raise serious constitutional issues in a civilian court, but note that it only applies to the public documents filed in appeals. The witnesses’ real names are still disclosed in the actual court martial, and their identities are disclosed to the lawyers and judges handling the appeal, so I don’t think they’re exactly “anonymous”.

  2. My old girlfriend’s stage name (when pole dancing) was Essence. I don’t think anyone would object to that.

  3. Since this would restrict counsel ONLY, what would stop anyone else (the accusers/witnesses themselves, press, friends, commanders/supervisors, court room viewers, etc), from publicly discussing identities?

    1. Orders?

      I’m thinking this is intended to deal with sexual assaults.

    2. Nothing? I’m confused about your confusion.

  4. Worthwhile. Public right to know’ arguments for access to all private information, at all times, are generally no more than prurience and folks being busybodies. In the case of unreformed -if we assume incarceration, medication, counseling, fines reform, folks with violent or criminal tendencies, there may be a ned for LEA’s to be made aware.

    Unfortunately, I suspect masking using ciphers beginning with letters from the real names will not provide much protection.

    1. What it will do is protect witnesses and victims who then get transferred to a distant post.

  5. “Does it matter that this is the military justice system, rather than normal state or federal court?”

    You’re the expert. Please tell us the answer.

  6. The Greek alphabet?!?

    1. I think they mean the English names of letters in the Greek alphabet (Jim Alpha, Mary Beta, etc.).

  7. Since they use the person’s real initials, I’m assuming the goal of this policy is not to hide a witness’s or victim’s identity from the accused—presumably anyone involved in the case will know most of the other people involved by name and will be able to easily figure out who the pseudonyms refer to.

    So I’m curious what the actual purpose is. Maybe there’s a problem with people who report incidents being retaliated against later on by their superiors? It’s difficult to come up with an opinion on the subject without knowing more about the particular issues this is trying to fix.

    1. I think the problem is Google: If a defendant is convicted of raping Tanja Uriarte — I’m picking the name at random, but a common like Jane Smith wouldn’t work for this example — the court doesn’t want Google searches for “Tanja Uriarte” to constantly pick up court documents mentioning that. Not all such military court documents are Google-searchable now, but more and more materials like that are being put online. Sex crime victims’ names are already often pseudonymized or just omitted, but the court seems to think that this should apply to other victims and witnesses as well.

      1. Oh. Well, in that case, then the problem they’re trying to solve isn’t really unique to the military justice system. It’s a problem that all courts face. If anything, I think the presumption of public access should be stronger in military courts, since not only is the court itself a public government function, most of the participants are public employees.

        However, there’s definitely a trade-off. If you’re the victim, or even a witness, to a crime, it’s very likely that experience was incredibly unpleasant and something you’d rather not share with public. I guess the argument for including the full names of victims and witnesses is that it gives outsiders the ability to research and verify the events discussed in the proceedings, and in theory this kind of accessibility could combat corruption and helps maintain trust in the courts. But I don’t know how much of value would be lost just by using these pseudonyms. This seems like it could be a useful compromise by providing all the information necessary to examine cases while still keeping the individuals’ involvement out of cursory searches.

      2. It’s not just Google — the military has internal databases as well.
        I’d be vert surprised if there isn’t a service-wide JAG database.

  8. Early in my career, I had the privilege of representing a company owned by the members of The Who before their appearance in the Astrodome in 1982. The band members had assigned their IP rights to the company for licensing & promotion, and on the company’s behalf I was seeking a TRO against unnamed “John Doe” defendants who we (correctly) anticipated would be selling unlicensed t-shirts and posters and such outside the Astrodome grounds, the effect of which was to cut substantially into the company’s own legitimately anticipated revenues.

    The TRO application was heard by then state district judge, later longtime Texas Supreme Court Chief Justice Thomas R. Phillips, whom I had worked with briefly before he was appointed to the bench.

    “Bill,” he said to me, “let me sure I have this straight. Your client is owned by the members of The Who?”

    “Yes, your honor.”

    He shook his head. “I’m really sorry that they put their intellectual property rights into a separate company. They could have sued in Texas as an unincorporated association. And that would have been so much more fun.”

    “Why?” I asked.

    “Because then the name of the case would have been ‘The Who v. John Doe.’ That would have been very special.”

    I duly passed this along to my client contact, a London solicitor, who passed it along to the band. I got backstage passes.

  9. Is this motivated by making it easier to notice or avoid command influence? Since this is appelate court, witness identification is less important and proper procedure compliance is more important. When Major General Big Shot becomes Andy Alpha and Private Nobody becomes Brian Beta, the command influence differences may be more apparent. Having the list of real names and psuedonyms readily available but separate from the filings makes me think that command influence is part of the rationale.

    1. No because nothing in the protocol addresses ranks. (At least, not that I can find.) Major General Alfred Anderson will become Major General Andy Alpha in the court filings.

    2. I’m not sure I follow your reasoning, since 1. The people in a position to exert undue command influence wouldn’t typically be mentioned in court documents; 2. The order appears to specifically contemplate including the ranks of pseudonymized service members; and 3. The judges and lawyers are all informed about the true identities of everyone involved.

  10. To me, the purpose of making court documents available to the public is so that the public can better understand the law. Unless the identity of a party or witness is integral to understanding why the court ruled in a given matter, I would say that a person shouldn’t have to forego their right to privacy in order to avail themselves of their right of access to the court system.

  11. This protocol seems unnecessarily specific but I’d be okay with the general idea while the trial is in progress. Once the trial is complete and the accused is either convicted or exonerated, the translation table should be published and the real names made available (absent exceptional circumstances, of course).

    However, no it should not make the slightest difference that this is a military proceeding

  12. Porn star names…

    Long Dong Silver vs. The Anaconda

    1. Seeing as how many of these will be rape cases….

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