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Wednesday, March 16, 2011

Jane and John Doe

Thanks to Professor Danielle Keats Citron at the University of Maryland Law School, I was given the opportunity to offer written testimony to the Hawaii Senate on behalf of a bill that would protect the privacy of harassment victims so they could bring lawsuits against their attackers. The bill currently being considered allows certain domestic abuse victims to sue as "Jane Does" or "John Does." It is an important bill and one, I must admit, I was surprised to learn was not already an option in every jurisdiction.

The arguments against this are four-fold, but I find each unconvincing. I am eager to hear from this gathering of minds much smarter than mine on this. 

First, the Hawaii Office of the Public Defender opposes the bill on the grounds that the measure "violates the rights of a criminal defendant under the Sixth and Fourteenth Amendment" to the Federal Constitution. The Sixth Amendment guarantees to accused the right to be informed of the nature and cause accusations against him, to call witnesses in his favor, to have the assistance of counsel and to confront his accuser. By filing complaints under pseudonyms, the argument goes, defendants can neither investigate a plaintiff's background nor research whether his or her accuser has filed these claims before. This means that a defendant would be unable to adequately prepare a defense and, therefore, would be unable to confront his accuser.

Second, various lawyers testified against the bill, noting that complaints with "John Does" and "Jane Does" lead juries to erroneously assume that pseudonyms were used because the defendant is dangerous. There is some evidence to support this, based on various studies done in the late 1990s. If jurors assume that the defendant is dangerous from the get-go, their credibility judgments would be impaired without evidence.

Third, the American Civil Liberties Union of Hawaii opposes the bill because courts are presumptively open to the public and only showings of "strong counterveiling reasons" could overcome the public's interest in access.

Fourth, some have suggested that this bill is unnecessary because courts already have the power to apply an appropriate balancing test to determine whether and when to seal portions of family court proceedings and records.

These are weighty arguments against the bill. But, they are unconvincing.

First, "John Doe" and "Jane Doe" filings do not prevent defendants from investigating and preparing defenses. It is a fallacy to suggest that such complaints are clouded in mystery until the moment trial begins and the plaintiff is sitting in his or her chair. Filings with pseudonyms shield identification and private information from the public, not the parties involved in the case.

Second, while some evidence suggests that pseudonym filings make fact-finders wonder what would cause the plaintiff to hide his or her identity, judges can head this off at the pass by issuing clear jury instructions that the "John Doe" or "Jane Doe" filing means nothing with respect to the credibility of the defendant or his witnesses. Jurors are surprisingly smart when it comes to compartmentalizing inadmissible nonsense when given clear instructions from a judge.

Third, open access to the courts is indeed an important value, but it is not absolute. Even if we require "strong counterveiling reasons" to insert some measure of anonymity into the process, those reasons exist. Domestic abuse is a grave problem, both in straight and gay relationships, and coming forward knowing that you will be identified as a victim of domestic violence is emotionally daunting and physically dangerous. Professor Citron's testimony focused on female victims of cyberharassment -- a growing problem indeed; my testimony touched on gay victims of domestic violence and cyberharassment -- a problem that will become increasingly obvious as gay couples continue to come out of the margins of legal society and assert their rights.

Finally, as to the unnecessary point, I am normally sensitive to this argument. Unnecessary laws are bad laws. But, this law is not unnecessary. In Hawaii, judges have routinely denied "Jane Doe" or "John Doe" filings without even considering a balancing of the harms. In fact, the drive for this bill came from a woman's case where a judge rejected the premise of pseudonym filings out of hand.

This seems like a valid exception to the presumption of open courts. What does the Prawfs community think?

Posted by Ari Ezra Waldman on March 16, 2011 at 05:59 PM | Permalink


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Thanks for your comment, Professor Chiang. My apologies for any confusion, but it is the former. In the context of this proposal, there would be a gag order preventing the public dissemination of the plaintiffs name. Presumably, that gag order would extend to witnesses, as well. When I was in practice, working on a case where significant corporate information and certain names had to be sealed, all witnesses were subject to the seal/gag order put in place by the judge. I assume this would work the same way. Admittedly, though, this problem makes the Sixth Amendment counterargument to the proposal more weighty. Thanks for your input!

Posted by: Ari Ezra Waldman | Mar 17, 2011 9:50:43 AM

Adding on to what TJ asked, I presume from the post that the defendant will be told the name of his accuser, but presumably there will be some sort of gag order to prevent him/her from leaking that name to the public in order to make the law effective. But then, as TJ pointed out, how can the defendant get witnesses. Presumably he/she would need to be allowed to tell witnesses the name of the alleged victim. Does the gag order then apply to those witnesses too? What if they don't know that the name has been sealed? Is it legitimate to punish people for sharing information that they rightfully got from someone else, when they aren't a party to the case and there's no gag order against them?

I just don't see this system working at all.

Posted by: Andrew MacKie-Mason | Mar 17, 2011 9:15:19 AM

Can you clarify your response to the first point? Are you saying that although public documents will denominate the accuser as "Jane Doe," the defendant will be told the identity of the accuser and can use that name freely in seeking and questioning witnesses? Or are you saying that, if the defendant is guilty, then he will presumably know the identity of the victim whom he abused? There is an obvious hole in the logic is the latter is your reasoning. And if it is the former, then what is to stop the defendant from leaking the name out?

Posted by: TJ | Mar 16, 2011 10:20:27 PM

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