As lawyers read new Missouri judicial opinions, they will find that something is missing. There are no names, except for defendants. In court opinions, Missouri has become the State of Unnamed Persons.
The names of witnesses in Missouri court cases have become a state secret. This is so even for the names of public officials, like prosecutors, and other people who expect to be in the public eye, like trial lawyers. Some recent court opinions mention scores of witnesses—but none of them, except the parties, are named.
The same is true of the names of victims. They are secret, and do not appear in court decisions. Yes, this applies even to murder victims, who are deceased and under the common law have no right of privacy, since that right is confined to the living.
This is not a joke or a fantasy. It is really happening. You can see it in Missouri appellate decisions issued in September and October 2023, which (with only a very few exceptions in my research) refer to non-parties variously using status words (e.g., “Victim”), relationships (e.g., “Victim’s sister”; “Girlfriend”; “Uncle”), initials (e.g., “D.V. and E.C”), profession (e.g., “Nurse”), and office (e.g., “[State Attorney]”and “[Trial Counsel]”).
And that’s not all. The same law that appellate courts began following in September would put a veil of secrecy over all witness and victim names in all court pleadings. Yes, under this law, you as a Missouri lawyer, in both civil and criminal cases, must redact from your pleadings all names of witnesses and victims. You must also redact all witness names from exhibits attached to your pleadings….
[T]he redaction regime seems wildly overbroad. In contrast to the preexisting specific redaction rules that had been developed over the years, mostly limited to certain criminal, juvenile and domestic situations, this one affects every case, every witness, and every victim…. Witnesses may be public or corporate officials, with important public responsibilities, yet their names will never reach the public court file….
[M]edia reporting on the courts will be inhibited. The long-established common law official report privilege, recognized in section 611 of the Restatement (Second) of Torts, is the basis for most media reporting on government; it protects media news reports that fairly summarize official proceedings. But if reporters can only access a limited, redacted court file, they will find it more difficult to report fairly and completely….
[C]an the statute survive federal constitutional scrutiny? In a series of cases culminating with Press-Enterprise v. Superior Court, 478 U.S. 1 (1986), the U.S Supreme Court has recognized a common law and constitutional right of access to judicial proceedings, based on historical openness and the importance of openness to the democratic process. Under the Press-Enterprise test, judicial proceedings cannot be closed to the public without specific evidence-based findings that closure is necessary to preserve higher values and is narrowly tailored to serve that interest. The new Missouri redaction regime closes off from the public important traditionally long-public information, and thus should be subject to this standard….
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