MJ Editor Phil Cave recently learned in a correspondence with the NMCCA clerk of court that "We now use pseudonyms (instead of initials) for all witnesses, not just for victims and minors..... Rather that [sic] redact out all names, the filings, opinions, and orders will use the same pseudonyms for a given case so that they can be more easily understood than if we redacted all names as the other CCAs plan to do. This is reflected in NMRAP Rule 17.5, Table of Pseudonyms. See attached. Note that the “first filer,” typically the appellant, will be responsible for creating the Table of Pseudonyms that the government and Court will use for the given case."
Pseudonyms for all witnesses in court documents? "Tables" of pseudonyms? This is going overboard. In fact, it may be creating constitutional problems.
There is generally a presumption of transparency in a court opinion; this is rebutted only in special cases such as minors. The reasons for the transparency presumption are obvious, and are rooted in the right to publicity in criminal proceedings. "The rule rather is that under appropriate circumstances anonymity may, as a matter of discretion, be permitted. This simply recognizes that privacy or confidentiality concerns are sometimes sufficiently critical that parties or witnesses should be allowed this rare dispensation. A necessary corollary is that there is a judicial duty to inquire into the circumstances of particular cases to determine whether the dispensation is warranted." James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993) (courts should consider the following factors: "whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of sensitive and highly personal nature; whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties; the ages of the persons whose privacy interests are sought to be protected; whether the action is against a governmental or private party; and, relatedly, the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously"); see In re Sealed Case, No. 19-1216, 2020 WL 4873248, at *2 (D.C. Cir. Aug. 20, 2020) ("The presumption of openness in judicial proceedings is a bedrock principle of our judicial system....That presumption is both 'customary and constitutionally-embedded[.]'")(applying Jacobson factors).
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