Without My Consent

Generally, victims of crime in California are entitled to the rights set forth in Article 1, Section 28, Subsection b of the California Constitution, known as the “Victim’s Bill of Rights.” The first of these rights is “[t]o be treated with fairness and respect for his or her privacy and dignity, and to be free from intimidation, harassment, and abuse throughout the criminal or juvenile justice process.”1 Each county in California establishes a procedure to protect the confidentiality of witness or victim information contained in police, arrest, or investigative reports, if those reports are submitted to the court by a prosecutor or law enforcement officer.2 “‘Confidential personal information’ includes, but is not limited to an address, telephone number, driver’s license or California Identification Card number, social security number, date of birth, place of employment, employee identification number, mother’s maiden name, demand deposit account number, savings or checking account number, or credit card number.”3     

 

More specifically, victims of sexual offenses have the option of keeping their names out of the public record and assuming the pseudonym of Jane or John Doe in all records and court proceedings.4 However, the victim must assert this right, and affirmatively make the request that her name be withheld from the public record.5 Also, the defendant still maintains the right to a full discovery, and the prosecution must disclose the name and address of witnesses to the defense absent a showing of good cause concerning why the disclosure should be denied.6 

 

The option of using a pseudonym and withholding the victim’s name from the public record is only available to victims of the thirty-two crimes listed below:

The law enforcement employee who receives a report from a person alleging that the person is a victim of one of the above-listed crimes, must inform the victim that her or his name will become part of the public record unless she or he requests otherwise.7 The law enforcement employee must then record that the victim has been so informed and record the victim’s response.8 The law enforcement agency must not disclose the name or address of the victim to any person except as required or authorized by law.9 Authorized disclosures include those to the prosecutor, parole officers, parole hearing officers, and probation officers.10  

 

At the victim’s request, the court may order the victim’s identity to be recorded under a pseudonym (Jane or John Doe) in all records and proceedings “if the court finds that such an order is reasonably necessary to protect the privacy of the person and will not unduly prejudice the prosecution or the defense.”11 If a pseudonym is used pursuant to section 293.5(a), then the jury is instructed at the beginning and end of the trial that the pseudonym is being used only to protect the privacy of the victim.12 The instruction reads as follows:  “In this case, a person is called (Jane/John Doe). This name is used only to protect (his/her) privacy as required by law.”13 At the request of the defense attorney, the court may also add these sentences to the instruction: “The fact that the person is identified in this way is not evidence. Do not consider this fact for any purpose.”14   

 

Cal. Penal Code sections 293 and 293.5, which provide privacy assurances to victims of sexual offenses, have been upheld despite constitutional challenges. In People v. Ramirez, the defendant presented several arguments against the statutes.15 First, the defendant argued that allowing the victim to be known as Jane Doe violated his right to a fair and impartial jury because, although the victim testified in person and all jurors saw the victim, there may have been jurors who knew the victim by name only.16 The Court of Appeal rejected this argument stating “In nonlegal jargon, we think this is a stretch.”17     

 

Second, the defendant argued that the victim’s testimony as “Jane Doe” violated his right to confront and cross-examine her because the victim might “expand or embellish her testimony” if allowed to testify with a pseudonym.18 The court rejected this argument, noting that the defendant was provided with complete discovery and knew the victim’s true name and address.19 The court also relied on a Ninth Circuit opinion that stated “[t]here is no absolute right of an accused to have a jury hear a witness’s true name.”20 And, the court found that the balancing test provided in section 293, requiring the victim’s privacy interest to be weighed against the possibility that a pseudonym would prejudice the prosecution or defense, is constitutionally valid.21   

 

Third, the defendant argued that the jury instruction mandated by section 293.5 creates an inference that the court believes that the alleged victim is an actual victim, and thus unduly influenced the jury.22 The court also rejected this argument noting that (1) the defense did not request any additional clarifying language at the trial court level; and (2) that taken in context with all of the other instructions that the trial judge gave, no improper inference could have been drawn by the jury from the instruction about the witness’s use of a pseudonym.23   

 

Under the Penal Code sections governing discovery, the prosecution must disclose to the defense the names and addresses of the prosecution’s witnesses.24 There is, however, an exception in section 1054.7: “The disclosures required under this chapter shall be made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred. . . ‘Good cause’ is limited to threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement.” Protecting witnesses from embarrassment does not constitute “good cause.”25 Similarly, a feeling of fear, without evidence of threats, danger, inappropriate attempts to contact the victim, harassment, or the involvement of gang members, does not constitute good cause.26