Editorial: A proposal right out of a Kafka novel

Wednesday, June 06, 2018

On Friday, the state judicial system’s 16-member Advisory Committee on Rules is scheduled to vote on a rule that, in the name of protecting the privacy or crime victims, threatens to leave the public blind to the workings of justice. The proposed rule would prevent all parties to a proceeding at the state Supreme Court level from disclosing the names, addresses, places of employment and other personal information of crime victims unless the court has good cause to do so.

The rule turns the history and presumption of public access to the workings of its justice system on its head. Information, including the names of victims and alleged victims of crimes, is public unless good cause exists to withhold such information, as is now done in cases involving minors or rape and sexual assault. The committee should reject the proposed rule, which is so expansive and vague in its use of the word victim as to be unconstitutional. It’s a rule whose adoption threatens the integrity of the justice system and public faith in its fairness.

Every state is struggling to adapt to the easy online access to court records that, prior to the internet, required appearing at a court in person to obtain. The proposed rule applies only to information in appellate proceedings and in New Hampshire; in general, only records at the Supreme Court level are posted online. The proposed rule is unclear about whether personal information must be expunged from the records of lower court proceedings and appendices. But eventually those records, too, will be online, and a call for anonymity for crime victims in all judicial proceedings will be heard.

The result would be a Kafka-esque system. The public would know, primarily through media reports, who was arrested and convicted of a crime but have little or no information about who was assaulted, robbed, defrauded or otherwise victimized.

“K is gone. The government says he beat a guy half to death. He’s doing 10 to 20.”

“Who did he assault?”

“They wouldn’t say. They just said to believe them.”

Some personal information should of course be omitted: complete Social Security and financial account numbers, gruesome or prurient details of crimes, names of minors, and records of mental health proceedings. But New Hampshire’s Constitution recognizes that since all power derives from the people, government should “be open, accessible, accountable and responsive. To that end, the public’s access to government proceedings and records shall not be unreasonably restricted.” Anonymity for all victims, save presumably from those who choose to come forward, is unreasonable.

Transparency in government – and above all in the justice system – is essential to public confidence in the process. Knowing the details of a crime, including the identity of the victim, helps prevent favoritism and alert the public to potential abuses of power. A full accounting of events can also elicit information that aids prosecution or prevents a miscarriage of justice.

Rules governing privacy for crime victims must be the least restrictive possible, and errors, when made, should be in the interest of government openness. Otherwise, faith in the system will wither away.