Privacy in Court: Issues and Risks

When will the United States court system stop jeopardizing the privacy of individuals? Under the influence of a show-all "reality TV" culture and an increasingly open approach toward online information sharing trends, public opinion has shifted toward a no-holds-barred attitude concerning access to information. The consensus, supported by countless television talk shows and tabloid headlines, indicates that no longer is any detail private. Occasionally, when it comes to the privacy of individuals who appear in court, the fundamentals of the public's right to know are questioned. Media coverage of courtroom proceedings has always walked a fine line between the press's First Amendment rights to free speech and defendants' Sixth Amendment rights to fair trials. Often left by the wayside, witnesses' and jurors' privacy is, at times, virtually annihilated. The United States Constitution, after all, does not guarantee citizens any right to privacy in express terms of personal information, outside the realm of self-incrimination (Linder, 2009). In the name of the law, courts sometimes exhaust all details in the private lives of people who are involved in trials. Under the argument that the public has the right to know about ongoing litigation, individuals who appear in court can lose their privacy, their personal security, and even their reputational standing because they are often called upon by judges and attorneys to divulge, on the record, sensitive information for public access.

A long-debated point in the courtroom privacy issue involves media coverage during trials. Arguments surrounding media presence in courtrooms have been ongoing for decades, due to the press's often-controversial impact on public opinion and jurors' decisions. Historically, the Supreme Court has allowed representatives of the media to access criminal trials under the same rights as citizens (Chamberlin, 2002). According to Frederer and Hulse (2008), "Absent closed sessions and sealed orders, privacy routinely is sacrificed for openness and court accountability" (¶2). However, some judges recognize that privacy issues can become issues of personal safety or well-being. In such cases, judges can rule for or against media coverage and the presence of the public within the courtroom. As new cases and new circumstances arise, several judges' decisions illustrate the privacy issues that can arise in court.

For example, in cases involving child victims or victims of rape or incest, judges sometimes rule in favor of the victim's privacy or anonymity. Such rulings are often intended to spare victims from additional emotional damage that might be caused by speaking about their ordeals in front of rooms full of people or seeing their testimony and images depicted in news reports. For example, in one murder case, a judge decided to close a courtroom in order to allow an 11-year-old victim named Shasta Groene to testify against her attacker from a separate room, via video, without "further harm and embarrassment," according to the judge (Russell, 2008). Sometimes, when the general populace learns that public access to a portion of a trial will not be allowed, the ruling exacerbates people's desire to know the details related to the case. As a result, media outlets and other proponents of the public's right to know often fight such rulings. Regarding Shasta Groene's testimony, 16 media outlets filed an appeal in hopes of overturning the judge's ruling, so they could be present to report on Shasta's role in the proceedings (Russell, 2008).

In addition to issues regarding media coverage, much debate concerns whether or not to release the names of jurors involved with some types of trials. These discussions and decisions usually center on cases in which jurors face high levels of threat due to their participation in the trial. According to the American Judicature Society (2003), courts sometimes convene an anonymous jury for cases that "call for additional protection against possible intimidation or influence of the jury" (¶1). Once a trial has concluded, jurors' anonymity is often lifted, although in some cases, such as those involving gangs or organized crime, courts allow jurors to remain anonymous for safety reasons (American Judicature Society, 2003). However, these precautions do not typically protect jurors from angry defendants or witnesses who are involved in run-of-the-mill types of cases. Occasionally, cases arise in which defendants reportedly retaliate against jurors who play a part in delivering an unfavorable verdict. One incident involved a doctor who, following a malpractice lawsuit in which he was cleared of guilt but a colleague was not, delivered to every other doctor at his hospital a letter that included the names and addresses of jurors who sat in on the case, opening himself to potential liability for harassment and retaliation against the jurors (DeLoache, 2001). In cases such as this, when jurors' identities are revealed in court, they often receive no protection from retaliatory actions until after they are subjected to personal attacks.

While jurors might serve as easy targets for blame from defendants or other involved parties when it comes to the outcome of a trial, they are not the only people whose safety and well-being can be endangered due to courtroom appearances. Witnesses also, on occasion, face risks when their identities are revealed during trial proceedings. When witnesses testify in regard to organized or violent crimes, issues of their privacy can, sometimes, ultimately represent issues of life or death. In one case, three men who were charged with several federal offenses assaulted a federal witness, who was placed in the same holding cell with the accused after his name was revealed in court documents and announced in the courtroom; upon confronting the witness, the defendants "knocked him to the floor and punched and kicked him in the face, head and body until they were stopped by DOC personnel" (United States Department of Justice, 2006, ¶4). Sometimes, the implications of revealing an individual's identity in court are not foreseen until it is too late to protect him or her.

In other cases, identity is not the central issue, but personally identifying information is at risk. The increasing availability of online court records has exacerbated issues of privacy for those who testify, and the disclosure of personal information in court can result in the appearance of such details in multiple documents, increasing the potential for public access (Frederer and Hulse, 2008). For example, Frederer and Hulse (2008) refer to email correspondence between court reporters and the Center for Legal and Court Technology, in which many reporters said they observed individuals state for the record their personally identifying information, such as financial account numbers, Social Security numbers, and home addresses. Common knowledge dictates that, due to inherent risks of identity theft, these types of sensitive information should be protected against disclosure to anyone, under any circumstances. However, once it is disseminated in a courtroom, this information often becomes a part of public record, and any individual can later gain or request access (Frederer and Hulse, 2008).

Other types of personal information can come out in court, as well. Sometimes, individuals who testify for either side are called upon to reveal sensitive private details. According to Frederer and Hulse (2008), "Few people can expect details of their troubles or testimony to come to the attention of the general public, or even their neighbors" (¶6), but increasing public access to court records has made such attention more likely in recent times. Depending on the types of unsavory details that must be revealed in court, people who might not even be involved with a crime can potentially suffer reputational damage or stigmatization among neighbors, colleagues, or acquaintances. Justice for this type of personal damage can be hard to recoup. While an individual can bring a lawsuit against a media outlet, for instance, for causing damage to his or her reputation, the First Amendment can make such lawsuits difficult to win; individuals must be able to prove that a media report "contains false allegations that identify them individually and damage their reputation in a provable way" (Chamberlin, 2002, ¶8). The key term is false allegations. No amends exist for individuals whose public images are tarnished by the truth, such as, for example, a witness who might be forced to admit he or she fell asleep at work and allowed a robbery to take place, or a husband or wife who is coerced into admitting a marital indiscretion in the course of testimony. In some cases, people who testify face the potential of judgment not only by the court of the law but by the court of the public, as well.

Issues of privacy in court can be complicated, and no umbrella rule protects individuals from the consequences of disclosing personal information. The media has long been viewed as the public's watchdog over courtroom affairs, but, as of yet, no similar watchdog has been appointed to protect the privacy and security of individuals who participate in trials. While the Supreme Court and the courts of public opinion consistently rule that the population at large has a vested interest in courthouse happenings, many judges continue to base their decisions on a case-by-case basis. In some incidences, despite a group mentality that all people should be all knowing, some judges rule that the privacy of an individual takes precedence over public and media interests. As trends point toward an increasingly digitized society, in which every iota of information might eventually inhabit a plot of cyberspace, these types of court decisions will continue to grow more numerous, more complicated, and more controversial. In this era, the concept of privacy in the courtroom might well be engaged in its last stand against public access.

References

American Judicature Society (2003). Judicious use of juror anonymity. Retrieved April 5, 2009, from http://www.ajs.org/ajs/ajs_editorial-template.asp?content_id=130

Chamberlin, B. (2002). Media and Law. Retrieved March 23, 2009, from http://swtuopproxy.museglobal.com/MuseSessionID=602d6090a7216f4d5a528adaee415/MuseHost=www.oxfordreference.com/MusePath/views/ENTRY.html?entry=t122.e0598&srn=4&ssid=938758295#FIRSTHIT

DeLoache, F. (2001). Jurors' lawsuit against doctor only one of its kind. Retrieved April 5, 2009 from http://www.salisburypost.com/2001april/042901f.htm

Frederer, F. Hulse, R. (2008). Impractically Obscure? Privacy and Courtroom Proceedings in Light of Webcasting and Other New Technologies. Retrieved March 23, 2009, from http://proquest.umi.com/pqdweb?did=1573836601&sid=1&Fmt=2&clientId=13118&RQT=309&VName=PQD

Linder, D. (2009). The Right of Privacy. Retrieved April 19, 2009, from http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/rightofprivacy.html

Russell, B. (2008). Shasta's testimony would close courtroom: Privacy concerns outweigh public interest, judge rules. Retrieved March 23, 2009, from http://proquest.umi.com.ezproxy.apollolibrary.com/pqdweb?index=0&did=1526393091&SrchMode=1&sid=1&Fmt=3&VInst=PROD&VType=PQD&RQT=309&VName=PQD&TS=1238639657&clientId=13118

United States Department of Justice (2006). Three North Avenue Boys Plead Guilty to Witness Retaliation. Retrieved April 10, 2009, from http://www.usdoj.gov/usao/md/Public-Affairs/press_releases/press06/Three%20North%20Avenue%20Boys%20Plead%20Guilty%20to%20Witness%20Retaliation.html