Criminal Pretrial Evidentiary Rules May Violate Constitutional Privacy Rights

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Rachel Robinson
May 2, 2017

Even though it only takes an individual’s name and an internet search to obtain their identity, many states require prosecutors to disclose to violent criminal defendants the personal identifying information of witnesses and victims who may testify against them at trial. Not only does this threaten public safety, it likely violates the constitutional right to informational privacy.

The Supreme Court has long since established that the right to privacy is as important as any other right guaranteed by the Constitution. In Whalen v. Roe, 429 U.S. 589 (1977), the Court set out the governing legal standard and defined the informational privacy right as an “interest in avoiding disclosure of personal matters.” Under Whalen, current criminal evidentiary rules requiring prosecutors to disclose the personal identifying information of witnesses and victims during pretrial discovery are likely unconstitutional.

The plaintiffs in Whalen challenged a New York law requiring doctors to submit a special form to the State Health Department when they prescribed certain drugs. The form contained personal identifying information of the receiving patient in addition to the name of the drug, the dosage prescribed and the identity of the prescribing doctor. The law made public disclosure of the information a crime punishable by up to one year in prison and a $2,000 fine.

The Court weighed the government’s interest in regulating certain drugs against the privacy interests of implicated persons. It considered seven factors:

1. The type of record being requested;
2. The information contained therein;
3. The potential for harm from subsequent nonconsensual disclosure;
4. The potential harm to the relationship from which the information arose;
5. The adequacy of safeguards preventing further disclosure;
6. The government’s need for the information; and,
7. Statutes, articulated public policy, or other public interest militating toward disclosure of the personal identifying information.

The Court ultimately found the New York law did not “pose a sufficiently grievous threat” to appellants’ privacy interest primarily because of statutory protections against public disclosure. Here, however, certain criminal evidentiary rules do just the opposite. They compel disclosure of personal identifying information to defendants who may seek to disrupt criminal prosecutions by doing harm to witnesses and victims of crime. The “grievous threat” is evidently two fold: a threat to the integrity of criminal investigations and subsequent prosecutions; and a threat to the physical safety of witnesses and victims of violent crimes. Taking each factor in turn, the rules would likely fail under the Whalen test.

The type of record requested is the personal identifying information of victims and witnesses. If prosecutors disclose this information to defendants, witnesses and victims can be – and are – threatened, humiliated and even killed before trial. Many rules do not require consent from or notification to victims and witnesses. Nor do the rules establish further safeguards from further unauthorized disclosure. Additionally, when a criminal defendant, or his proxy, threatens or kills a witness or victim in the preliminary phases of pretrial discovery, the prosecution loses access to valuable testimonial evidence.

Defendants do not have a countervailing or superseding right to the information during pretrial discovery. The Confrontation Clause of the 6^th Amendment of the Constitution, intrinsically intertwined with the evidentiary hearsay rule, provides “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him …” As the Court clarified in Ohio v. Clark, the Confrontation Clause prohibits the testimonial statements of a nontestifying witness unless the witness is “unavailable to testify, and the defendant had the prior opportunity for cross-examination.” The Court further explained, a statement is testimonial when its primary purpose is to “create an out-of-court substitute for trial testimony.”

Per the Merriam-Webster definition, personal identifying information listed on an investigatory police report cannot be a statement because it is not “a report of facts or opinions.” It follows it cannot serve the primary purpose of creating an out-of-court substitute for trial testimony. Indeed, the primary purpose of protecting the information is to ensure the availability of important trial testimony.

Evidentiary rules requiring disclosure of personal identifying information of witnesses and victims are likely unconstitutional. Defendants have no constitutional right to that information. In effect, the rules infringe upon the constitutional rights of victims and witnesses without furthering those of defendants.

Notably, in Whalen, the Court left the question open as to what standard of review courts should apply in cases of compulsory disclosure of personal information. Justice Brennan answered this question in his concurrence where he opined “a statute that did effect such a deprivation would only be consistent with the Constitution if it were necessary to promote a compelling state interest.” As the rules cannot support Whalen’s balancing test, they would likely buckle under the weight of the strict judicial scrutiny Justice Brennan recommends.

Evidentiary rules requiring prosecutors to disclose personal identifying information of witnesses and victims to criminal defendants harm the integrity of criminal investigations, erode trust in law enforcement and likely violate informational privacy rights guaranteed by the U.S. Constitution.

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Author: Rachel W. Robinson holds a Master’s degree in Public Administration with a focus in Leadership and Management from Bowling Green State University in Bowling Green, Ohio. She recently completed her classes at Washington University in St. Louis School of Law and looks forward to graduation on May 19 when she will be credentialed as a Juris Doctor. [email protected] or https://www.linkedin.com/in/rachel-w-robinson-a69922a

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