May 20, 2015 – Beginning July 1, 2015, appellate briefs describing victims in certain criminal cases must identify the crime victim “by one or more initials or other appropriate pseudonym or designation” in order to protect victim privacy.
Sarah Burgundy (University of Oregon 2007) is an assistant attorney general in the Criminal Appeals Unit of the Wisconsin Department of Justice, Madison, where she has worked since 2010 following clerkships with the Oregon Court of Appeals and the Wisconsin Supreme Court. Burgundy is a board member of the State Bar’s Appellate Practice Section.
The Wisconsin Supreme Court adopted an administrative rule petition filed by the Wisconsin Judicial Council seeking creation of Wis. Stat. section (Rule) 809.86, which prohibits, without good cause, identification of crime victims by their first or last names in appellate briefs. Rather, appellants and respondents must use initials, pseudonyms, or some other identifier when describing the victims in certain criminal cases.
According to the memorandum in support of the petition, the proposed rule was prompted by complaints received at the Department of Justice from particular crime victims who discovered that searches of their names through Google or other Internet search engines produced appellate briefs and judicial opinions revealing their identities along with the graphic details of the crimes committed against them.
Thus, the rule “is intended to protect victims’ constitutional and statutory rights to be treated with fairness, dignity, courtesy, sensitivity, and respect for their privacy,” according to Judicial Council Note, In re Petition to Create Wis. Stat. section (Rule) 809.86 (Wis. Sup. Ct. Mar. 2, 2015).
Notable provisions of the new rule include the following:
Subsection (2) sets forth the types of matters to which the rule applies, which according to the judicial council note included “matters in which victims of crimes are most frequently referenced and identified as victims or alleged victims.”
Subsection (3) defines “victim” as “a natural person against whom a crime, other than a homicide, has been committed or alleged to have been committed in the appeal or proceeding.” According to the notes, homicide victims may be identified by name in appellate briefs because “[t]he privacy issues addressed by the rule do not extend to a deceased victim in the same manner [as they do living victims].”
Subsection (4) provides that the parties must identify a victim “by one or more initials or other appropriate pseudonym or designation.” As explained in the notes, this subsection “does not prescribe or limit the use of other pseudonyms for victims, as long as they maintain sensitivity and respect for the victims.”
Subsection (5) contemplates two additional situations in which good cause is shown to make it necessary for the court (1) to “make any order necessary to protect the identity of a victim or other person” and (2) to excuse compliance with the rule.
In addition to adopting the new rule, the supreme court also voted to amend Wis. Stat. section (Rule) 809.19, which addresses how to name individuals in confidential records, to likewise require identification of the individuals by initials, pseudonyms, or other appropriate designations.
In addition, the rule itself is limited to appellate briefs. Although the original proposed rule included language that would have made it apply to judicial decisions, the supreme court elected to address its practice by revising its internal style manual to be consistent with the new rule and to recommend that the court of appeals take the same steps. In addition, the rule does not apply to non-brief appellate filings such as appendices, because those documents are not currently posted electronically.
Finally, as set forth in the notes, the new rule is designed to address victim privacy concerns resulting from the ability of the general public to access documents posted on the Wisconsin Supreme Court and Wisconsin Court of Appeals access website. It is not, however, designed or intended to create a rule of confidentiality or privilege, to limit a defendant’s right to public trial, to limit potential appellate arguments or remedies, or to affect public record laws.
This article originally appeared in the section’s May 2015 issue of their newsletter, De Novo. To join the section or for more information, visit the section’s website.
