The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

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


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.