Privacy and the Criminal Arrestee or Suspect: In Search of a Right, In Need of a Rule

Abstract

Criminal accusation stigmatizes. Merely having been accused of a crime lasts in the public eye, damaging one's reputation and threatening current and future employment, relationships, social status, and more. But vast numbers of criminal cases are dismissed soon after arrest, and countless accusations are unfounded or unprovable. Nevertheless, police officers and prosecutors routinely name criminal accusees to the public upon arrest or suspicion, with no obligation to publicize a defendant's exoneration, or the dismissal of his case, or a decision not to file charges against him at all. Other individuals caught up in the criminal process enjoy protections against the public disclosure of their identities--sexual assault complainants, juvenile offenders, grand jury targets, and others. The Supreme Court has endorsed these protections, and also upheld restrictions on the dissemination of arrest records. All of these protections are grounded in privacy doctrine-- specifically, informational privacy, of common-law origin. In this article, Professor Reza argues that the same privacy right should attach to arrestees and suspects, and government actors should accordingly be presumptively required to withhold the identities of arrestees and suspects until a judge or a grand jury has found probable cause of guilt, unless an arrestee or suspect requests otherwise. The argument moves from common-law privacy doctrine through a cluster of doctrines that are rarely addressed concurrently: the Supreme Court's government information cases; the common-law access doctrine; and the First Amendment doctrine of access to the courts. Professor Reza also offers a sample statute to protect this privacy right, and explores ramifications of such protection.

Keywords: privacy, arrestee, suspect, criminal, criminal defendant, arrest, probable cause, common law privacy, public disclosure, private facts, anonymity, anonymous, pseudonymous, informational privacy, access doctrine, arrest records, government information, reputation, juvenile, confidentiality, secrecy