John Doe

victor steinbok aardvark66 at GMAIL.COM
Wed Sep 21 18:02:08 UTC 2011

OED does have an entry for John Doe, as has been previously discussed here.
But IMO it falls short of the current legal usage:

John Doe n.  (a) (Eng. Law and U.S. Law), the name given to the fictitious
> lessee of the plaintiff, in the (now obsolete) mixed action of ejectment,
> the fictitious defendant being called Richard Roe;  (b) name given to an
> ordinary or typical citizen (see also quot. 1942).
> ...
> 1941    N.Y. Times 13 Mar. 25/2 (title)    Meet John Doe, screen play by
> Robert Riskin.‥ ‘John Doe’‥Gary Cooper.
> 1942    L. V. Berrey & M. Van den Bark Amer. Thes. Slang §442/3   One whose
> name is not known,‥ Joe Doe, Joe Zilch, John Doe, John Henry, John Smith.

There is nothing wrong with the information that's given AFAIK. That is,
sense (b) largely follows the film mentioned in the 1941 quotation. But much
of current legal usage is centered on two different concepts--one that
follows the 1942 quotation and one where the name is hidden deliberately for
any of a variety of reasons. In addition, there is a concept of "John Doe
investigation", which is what brings me here. There are also corresponding
"John Doe summonses", which follow both of these meanings--some are issued
to individuals yet unknown (but whose names may be discovered in the course
of an investigation) and others are issued to protect identities of
witnesses ("friendly John Doe summonses").

And example is here (IRS John Doe Summonses rules):

>  (09-01-2006)
> Definition
> A John Doe Summons is any summons where the name of the taxpayer under
> investigation is unknown and therefore not specifically identified. A John
> Doe summons can only be served after approval by a Federal court. Therefore,
> the Service must never serve a "friendly" John Doe summons even though a
> prospective summoned party may request one as a condition to providing
> information to the Service. Serving a John Doe summons without court
> approval violates the statute and will jeopardize the investigation.

For secret proceedings as "John Doe investigation", I've been following the
Wisconsin case of several Gov. Walker aides being on the hook for mixing
political campaigning with their state jobs. (e.g., or
several posts at TPM). In particular, the Wisconsin News Reporters' Legal
Handbook defined "John Doe Investigation":

> A procedure that may lead to criminal charges in state court is the "John
> Doe" investigation, which begins with a complaint filed with a judge
> alleging that there is reason to believe a crime has been committed. The
> identity of the suspects may or may not be known, but they often are not
> named publicly, so the proceeding is called a "John Doe."
> Often a John Doe investigation is held at the request of a district
> attorney who has some information about alleged crime and wishes to question
> people about it under oath. This is the only way for a district attorney to
> obtain testimony from a witness who refuses to give evidence without first
> receiving a grant of immunity from a judge. When a witness in the John Doe
> declines to answer a question based on his or her right against
> self-incrimination, the district attorney can request an order from the
> judge requiring that the witness give the testimony or face a possible jail
> sentence. Such compelled testimony may not be used in a later proceeding
> against that witness, though it is available for use in any later
> proceedings against others. The judge overseeing the John Doe may issue
> subpoenas ordering people to appear in court to testify about the events
> being investigated and to produce evidence. If merited, a criminal complaint
> is issued at the end of a John Doe investigation, although the proceedings
> can be continued if other persons or crimes are still under investigation.
> John Doe hearings usually are ordered closed upon a finding of the judge
> that secrecy is needed, but they are to be held in public if the judge finds
> insufficient need for secrecy.
> A John Doe proceeding is in some ways similar to a federal grand jury
> proceeding, but differs in the following ways:
> *  the John Doe judge is present for witness testimony;
> *  an attorney for the witness is allowed to be present during the
> witness's testimony; and
> *  any felony charges stemming from a John Doe proceeding still must be
> tested at a preliminary hearing before the person is bound over for trial.
> In contrast, no judge or witness attorneys are present for federal grand
> jury testimony, and the return of a federal indictment by a grand jury is
> deemed to be based on probable cause sufficient to take the case to trial.

Whatever the case, this obviously has nothing to do with ejectment and the
OED lemma needs a radical update.


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