It would be wonderful if witnesses against a person charged with a crime could be insulated from consequences. Especially when the allegations involve something that violates fundamental norms. Even more especially when it’s a trial that will be broadcast far and wide. These poor witnesses, who are there for having suffered, for being the victims of crime and worse. Why should they be perpetually tainted by the misfortune?
There are three reasons. First, because they are not victims until a jury convicts the defendant, finding that a crime occurred and the defendant committed it. Second, because the scrutiny that adheres to testimony and compels a witness to be truthful requires that they put their true self, their real name, the full background, on trial. Third, because our Constitution commands a public trial, and a public trial cannot be had when critical participants get to hide in the shadows.
Even Jerry Sandusky gets a fair trial, despite the disgusting crimes with which he’s charged.
From the Associated Press :
Lawyers for several of the accusers had asked that their clients be allowed to testify under pseudonyms, a rarity in criminal cases. {Judge John] Cleland said they must use their real names, but that he and lawyers will “cooperate when possible” to protect witness privacy and personal information.
“Arguably any victim of any crime would prefer not to appear in court, not to be subjected to cross-examination, not to have his or her credibility evaluated by a jury — not to put his name and reputation at stake,” the judge wrote. “But we ask citizens to do that every day in courts across the nation.”
The argument in a case involving molestation and other sex crimes is that they are so sordid, so sickening, that the taint remains after the trial is concluded, leaving the victims to suffer the consequences of being a sexually molested victim for the rest of their lives. People will stare at them, point at them, and say, “there goes a victim of the heinous child molester.”
It’s a sad argument, reflecting the vestiges of our Puritan heritage than anything the person did to deserve the stares. It’s like those who view a rape victim as “tainted,” as if she could never be “clean” again and should therefore be treated as a societal pariah for something that was done to her. It’s just a sick perspective.
While neither Sandusky nor his lawyer, Joe Amendola, did much to persuade the public he has a defense to the charges, each engaging their mouths any time a microphone came near while their brain was double-clutched, the defendant remains presumptively innocent until a jury says otherwise. And for that reason alone, he is entitled to confront his accusers, both by looking into their eyes and having them testify under their real names, where the defense can question and challenge them to put their background and reputations under the microscope.
Notably, it’s unlikely that anyone not attending the trial will ever know who these people are.
Media organizations, including The Associated Press, typically do not identify people without their consent who say they were sexually abused.
Or who say they were raped. Or who say they were the victim of any sort of sexual crime. This is the concession to secrecy that the press offers to putative victims, that it’s one thing for the defendant to be denied the opportunity to face his accuser without concealment, but there is no need for the rest of us, merely watchers, to know who they are. It assumes that our interest in such detail is prurient; we just enjoy a good scintillating sexual scandal.
However, one of the aspects of a public trial that compels a witness to testify truthfully is the fear that others, members of the public, who know them and know the truth about them, will learn of their testimony. If they lie, someone will know. It may not be the parties in the courtroom who are aware of every sordid detail of their life, but others outside the courtroom who have come to know aspects of their lives. If their names are never revealed outside the courtroom, however, then there will be no one to come forward to reveal that the testimony was false.
Sure, this is unlikely. Few trials receive much publicity, and even reports of trial tend not to be sufficiently detailed to allow someone outside the courtroom to learn of a falsehood unless it touches on a major point. Chances are that even with the media reporting the names of witnesses, no one will be wiser for it and there will be no revelation of dishonesty.
Yet it’s the promise of public scrutiny, the fear of it if you will, that was meant to keep the system honest. That chances are extremely low that anyone will come forward with information that shows a witness against the accused lied doesn’t mean it can’t happen, and doesn’t mean the intense pressure of being publicly revealed as a liar rather than victim doesn’t weigh heavily on the witness to keep him honest.
One can easily understand why the alleged victim’s of Jerry Sandusky would prefer to testify under pseudonyms, to avoid adding the insult to injury of going through life as one of Jerry’s kids. But our system doesn’t (except when it does) allow this, and shouldn’t. Even when the defendant is Sandusky. Even when the crime is child molestation. Even when our sympathies are with these witnesses.
Update: As was just pointed out to me, today’s post is hardly a novel concept in the Sandusky case. From a letter to the Public Editor of the New York Times published December 31, 2011:
Although The Times’s policy (shared by all major news media in this country) of not ordinarily publishing the names of accusers in sex crimes has the laudable goal of helping to encourage actual victims to come forward, it is either wholly incomplete or completely misguided.
The problem is that by providing anonymity to anyone who makes an accusation, The Times and the rest of the news media treat all accusations of sex assault as true, which they are not. Some are, some aren’t. The policy makes every accuser into a victim who must be protected while treating every person accused (their identities are treated as fair game) as guilty. But what of the falsely accused? In those cases, the news media out the actual victims while providing anonymity to the perpetrators (the false accusers).
The problem is exacerbated when an accuser is given a moniker like “Victim 1,” which not only declares the truth of that person’s accusation but also assures the reader that the person accused has assaulted others.
The Times occasionally acknowledges the presumption of innocence. Its policy embodies a presumption of guilt.
JEFFREY M. GAMSO
Toledo, Ohio
That name sounds so familiar, doesn’t it?
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
The experience of three men sticking a snub-nosed .38 in my face in late January and robbing me as I was parking my Corolla in suburban Baltimore after an evening grocery run gave me a new perspective on the experience/process of being a crime victim. Two other local residents were similarly robbed at gunpoint that night, one pistol-whipped; three suspects have been held no bond since early February and trial is tomorrow (6/6) unless postponed, which is very likely.
More to the issues you raised here: as a practicing Maryland attorney I must keep a public address. I am findable until I retire, which means my children are pretty much findable, and my office is very findable online. In addition, until my lease ends in October, my home address is in the charging documents. The Bloods have apparently begun doing shotgun home invasion robberies in my suburban zip code; murdering three armed robbery witnesses would be an easy job to bid out to them for the right bag of dope.
Do I have the right personality, temperament, judgment and eyesight to handle a Maryland handgun permit and weapon? Am I competent, as defined under Rule 1.1, to hold a death instrument in my hand on the street or in my car? Age has taught me nothing if not the fallibility of man, starting with myself. Yet I have a duty to my children to try not to die or let them get killed in their carseats by the thugitariat.
Agree with your analysis of the need for public trials, including disclosure of witnesses’ identities. Not doing so fosters multiple forms of tyranny and corruption. Some of the thugitariat wear police uniforms and police power needs a strong, unapologetic check.
Sorry to hear of what happened to you, and the potential threat this presents to your family. In New York, victims’ addresses are routinely redacted for this reason, though they’re easily enough found with a bit of effort. One might hope that the police would protect your family from threat, but being a phone call away doesn’t help much when a gun is pointed at your children.
There is probably no occupation for which the cognitive dissonance is worse than a criminal defense lawyer who is the victim of a crime. The visceral reaction is in such facial conflict with our intellectual understanding of the systemic need for constitutional rights, but it’s almost impossible to ignore our anger, frustration and fear. And we are not immune from crime, as you know only too well. This makes your ability to remain firm in your committment to constitutional rights despite your experience quite remarkable.
As a foreigner, I would like ask why cannot have such trials where matters that require greatest possible intimacy are handled in camera. Such possibility would not only mean that there would not be any adverse publicity to the victims but would also allow the defendants to use any defence, without regard to “state secrets” doctrine.
In Finland, we have regularly lay judges (elected non-lawyers that take part in the trying of facts and law, as well as in the sentencing) in the district courts. If there appears a topic that cannot be discussed in public, the courtroom is cleared and the trial continues with everyone present (including the defendant, the lawyers and lay members of the court) obligated to secrecy. On the other hand, the defence can then compel discover of any government secret.
As a result, it is very typical for rape verdicts to be mostly secret: only the name of the convict, the length of the sentence and a general description of offence are given. There have been cases where ex-convicts have been prosecuted and convicted for mentioning the name of their victim in public.
When seconds count, the police are minutes away. And in Maryland, the first thing they’ll do is shoot your dog.
We have this Constitution thingy, which provides every defendant with the right to a public trial. It’s kinda the exact opposite of trying cases behind closed doors so no one can see what goes on. We kinda like it that way.
I have been through the system having been falsely accused. It took me almost 9 years to clear my name including almost 4 years in jail, a ruling from my state’s Supreme Court reversing the conviction and dismissing the charges, and the denial of the state’s petition for SCOTUS to take up the case.
With all that said, I believe that “victims” names should not be published. However, I feel that the “victims” are both the accusers and the accused. The media almost always portrays the accused as guilty – they may use the word “alleged” in their reporting, but the bias and slant usually make it seem that the accused is guilty. I had numerous articles about me during the years leading up to my trial. And what did I get when exonerated? One article. Did they do a decent job with that article? I’d say it was fair.
But there were other “victims” here also. What about my wife and children? Does anyone think that this process had no effect on them? Will they not remember the ordeal for the rest of their lives? Of course they will. So, I would opine that it is time to protect all of the “victims” in criminal cases from having their names published in the media until such time that guilt or innocence is determined.
As to trial – I cannot even imagine a scenario where a person is allowed to testify using a pseudonym. But to be fair, is it truly in the best interests of all to publish everyone’s name in the news? If someone is curious there are always the court records….