Chapter 36 – Secret Evidence in Criminal Trials

1. Chapter 36 – Secret Evidence in Criminal Trials

2. Amendment I • Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

3. Amendment V • No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

4. Amendment VI • In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

5. §6. PROCEDURE FOR CASES INVOLVING CLASSIFIED INFORMATION

6. (a) Motion for hearing. Within the time specified by the court for the filing of a motion under this section, the United States may request the court to conduct a hearing to make all determinations concerning the use, relevance, or admissibility of classified information that would otherwise be made during the trial or pretrial proceeding. Upon such a request, the court shall conduct such a hearing.

7. (a) Motion for hearing. - continued Any hearing held pursuant to this subsection (or any portion of such hearing specified in the request of the Attorney General) shall be held in camera if the Attorney General certifies to the court in such petition that a public proceeding may result in the disclosure of classified information. As to each item of classified information, the court shall set forth in writing the basis for its determination. Where the United States’ motion under this subsection is filed prior to the trial or pretrial proceeding, the court shall rule prior to the commencement of the relevant proceeding.

8. (b) Notice. • (1) Before any hearing is conducted pursuant to a request by the United States under subsection (a), the United States shall provide the defendant with notice of the classified information that is at issue. Such notice shall identify the specific classified information at issue whenever that information previously has been made available to the defendant by the United States. When the United States has not previously made the information available to the defendant in connection with the case, the information may be described by generic category, in such form as the court may approve, rather than by identification of the specific information of concern to the United States.

9. (b) Notice. - continued • (2) Whenever the United States requests a hearing under subsection (a), the court, upon request of the defendant, may order the United States to provide the defendant, prior to trial, such details as to the portion of the indictment or information at issue in the hearing as are needed to give the defendant fair notice to prepare for the hearing.

10. (c) Alternative procedure for disclosure of classified information • (1) Upon any determination by the court authorizing the disclosure of specific classified information under the procedures established by this section, the United States may move that, in lieu of the disclosure of such specific classified information, the court order—

11. (c)(1) - continued • (A) the substitution for such classified information of a statement admitting relevant facts that the specific classified information would tend to prove; or

12. (c)(1) - continued • (B) the substitution for such classified information of a summary of the specific classified information. The court shall grant such a motion of the United States if it finds that the statement or summary will provide the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information. The court shall hold a hearing on any motion under this section. Any such hearing shall be held in camera at the request of the Attorney General.

13. (c)(1) - continued • (2) The United States may, in connection with a motion under paragraph (1), submit to the court an affidavit of the Attorney General certifying that disclosure of classified information would cause identifiable damage to the national security of the United States and explaining the basis for the classification of such information. If so requested by the United States, the court shall examine such affidavit in camera and ex parte.…

14. (e) Prohibition on disclosure of classified information by defendant, relief for defendant when United States opposes disclosure • (1) Whenever the court denies a motion by the United States that it issue an order under subsection (c) and the United States files with the court an affidavit of the Attorney General objecting to disclosure of the classified information at issue, the court shall order that the defendant not disclose or cause the disclosure of such information.

15. (e) - continued • (2) Whenever a defendant is prevented by an order under paragraph (1) from disclosing or causing the disclosure of classified information, the court shall dismiss the indictment or information; except that, when the court determines that the interests of justice would not be served by dismissal of the indictment or information, the court shall order such other action, in lieu of dismissing the indictment or information, as the court determines is appropriate. Such action may include, but need not be limited to—

16. (e)(2) – [remedies] • (A) dismissing specified counts of the indictment or information; • (B) finding against the United States on any issue as to which the excluded classified information relates; or • (C) striking or precluding all or part of the testimony of a witness.…

17. What does the AG have to consider before starting a prosecution that involved classified information? • Consequently, the Attorney General has instructed federal prosecutors, in deciding whether to prosecute, to weigh (a) the likelihood of such exposure, (b) the resulting damage to national security, (c) the likelihood of success if the case is brought, and (d) the nature and importance of other federal interests that prosecution would promote.

18. United States v. Lee The Constitutionality of the CIPA

19. Access to the classified information • Does the defendant get to see the classified evidence that the government will use? • What is restricted? • The ability to give it to the jury or the public. • Does the defendant have to get clearance for his own classified testimony or evidence in his possession that he wants to use?

20. What if the judge agrees that the information should be disclosed? • What will the defendant be required to substitute if the court accepts the risks of disclosure? • Admissions or a summary of the facts. • Why might this be less effective than the evidence itself?

21. How can the judge protect the defendant if he is not allowed to use classified information? • What can the judge order if the defendant can show that he will not be able to properly defend his case with the summary? • Dismiss the case, or parts of it that depend on the excluded evidence. • Does the government have to revel rebuttal evidence to the classified information summary? • Yes - Brady

22. Defendant’s Privilege Against Self-Incrimination • What does the defendant claim violates his privilege against self-Incrimination? • Having to disclose potential evidence ahead of time. • How does this limit the defendant’s rights? • He cannot stand silent and make strategic decisions on whether to testify.

23. What examples does the court give of other forms of pre-testimony disclosures? • Examples of such requirements include Fed. R. Crim. P. 12.1 (alibi defense); Fed. R. Crim. P. 12.2 (insanity defense); Fed. R. Crim. P. 12.3 (public authority defense); and Fed. R. Crim. P. 16 (medical and scientific tests, and tangible objects and certain documents). • How could you distinguish these? • None requires direct testimony to claim.

24. What does defendant have to do if he wants to cross-examine witness on classified information? • ..forcing him to notify the government pretrial (and explain the significance) of all the classified information he reasonably expects to elicit from prosecution witnesses on cross-examination and all such information that will be contained in defense counsel’s questions to those witnesses

25. How does requiring disclosure limit the effectiveness of cross-examination? • No surprise • Does the court find a constitutional right to surprise? • No

26. Defendant claims that the burden of CIPA is one-sided. What are burdens on the government? • Specifically, the government must provide the defense with any portions of any material it may use to establish the ‘‘national defense’’ element of any charges against Lee. Fourth, under §6(f), the government is required to provide notice of any evidence it will use to rebut classified information that the court permits the defense to use at trial. Finally, in addition to the discovery obligations under §6 of CIPA, the government must also comply with the Federal Rules of Criminal Procedure and Brady v. Maryland, 373 U.S. 83 (1963). • Is complying with the rules of criminal procedure really a balancing burden on the defense?

27. Defendant’s right to a public trial • How does CIPA violate defendant’s right to a public trial? • Is this an absolute right? • Can defendant waive the right or request a closed trial? • What about the public’s right? • Next slide

28. The implications of a public trial • Does the public see the same evidence that the jury sees? • OJ trial • What right does this support? • Right of a public trial. • Would we need to worry about classified evidence if we closed the trial? • What about jurors? • Who else is in the courtroom?

29. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) • "[T]he presumption [of a public trials] may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values, and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.“

30. “overriding interest based on findings that closure is essential to preserve higher values” • What about when a child is testifying in a child sexual abuse case? • What about when it will seriously affect the defendant’s right to a fair trial – perhaps in a preliminary hearing? • Where would classified information come in?

31. Graymail • If you sue the government, say for negligence under the Tort Claims Act for a plane crash, how can the government use the claim of secrets to thwart your case? • How can a defendant use demands for classified evidence be used to halt a prosecution? • Why does graymail usually hurt the party with the burden of proof?

32. Defendant’s Discovery in Criminal Cases • What does Brady require the prosecution to provide the defense? • evidence that is favorable to the defendant and ‘‘is material either to guilt or to punishment.’’ • What does the Jencks Act require as regards witnesses? • You have to produce their statements. • These apply to the prosecution.

33. What is the duty of intelligence agencies? • What is the test? • ‘‘federal discovery obligations extend to those government agencies that are so closely ‘aligned’ with the prosecution of a specific matter that justice requires their records be subject to the respective discovery obligations.’ • Is there any effective way to know if the agencies have complied? • Have agencies been caught lying?

34. CIPA and Discovery • How can requiring defense counsel to get a security clearance allow the government to undermine the defense? • Who decides? • How long does it take? • Does it make sense, given that the defendant gets to see the evidence?

35. CIPA: Disclose or Dismiss • When the government refuses to allow classified evidence to be used, the court uses a Matthews balancing to decide whether the case should be dismissed. • How can this undermine criminal due process rights?

36. Stopped here

37. B. USING ‘‘SILENT’’ WITNESSES TO INTRODUCE SECRET EVIDENCE

38. United States v. Abu Ali • Ahmed Omar Abu Ali was born in the United States and sent to Saudi Arabia for college. • the Saudi counterterrorist agency Mabahith arrested Abu Ali before his training was completed and interrogated him. • Eventually, the Saudi authorities surrendered Abu Ali to the United States, where he was tried for providing material support to a foreign terrorist organization, among several counts, partly on the basis of statements he made during the Saudi interrogation.

39. What is the principle evil that the confrontation clause addresses? • ‘‘[T]he principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.’’

40. The application of the Confrontation Clause • While this is usually thought of as applying to witnesses (think about the problems with children as witnesses), it also applies to documents. • For witnesses in criminal trials, when are you allowed to confront them? • During trial • What right does Brady and Jenks give you as to documents? • You get to see them before trial. (Watch my Cousin Vinnie.)

41. What happened in the Ali trial? • When did the defendant get to see the unredacted documentary evidence? • Only when it was presented at trial. • Who was allowed to see it? • One defense lawyer with a security clearance. • How does this complicate his ability to represent his client? • The court then had a CIPA hearing, which only the cleared counsel was allowed to attend.

42. The CIPA ruling • Only the cleared counsel – not the other lawyers and the defendant – were allowed to see the redacted, but still classified information. • The redactions were found not to be material to the defense. • The court allowed the government to use the silent witness procedure to give classified information to the jury, but not the defendant.

43. Did the court find that this was acceptable? • What the government cannot do is hide the evidence from the defendant, but give it to the jury. Such plainly violates the Confrontation Clause.

44. What was the Matthews analysis? • We do not balance a criminal defendant’s right to see the evidence which will be used to convict him against the government’s interest in protecting that evidence from public disclosure.

45. United States v. Rosen This is the same case we read parts of earlier.

46. How is the treatment of the public different under silent witness and CIPA? • Under silent witness, the defendant and the jury see the unredacted evidence, but the public only sees or hears coded text. • How does this work? • Each has a key that translates names into Party A, document references into line numbers, and recordings are only static to the listeners in open court.

47. How does the court see this as affecting the ability of the defendant to argue his case? • (i) in the awkwardness of presentation and resulting jury confusion, • (ii) in witnesses’ and counsel’s inability to explore fully and argue about the facts protected by the SWR, and • (iii) in the prejudice from employing a procedure that suggests to the jury that the information being discussed is a closely-held government secret when the jury itself must decide that very issue.

48. Why does the judge find that CIPA, which does not mention the SWR, should allow it? • In doing so, these courts have given effect to Congress’ express intent in enacting CIPA that federal district judges ‘‘must be relied on to fashion creative and fair solutions to these problems,’’ i.e., the problems raised by use of classified information in trials. S. Rep. 96-823, reprinted in 1980 U.S.C.C.A.N. 4294. • In short, the SWR is precisely the sort of judicially-created fair solution envisioned by Congress.

49. What are the two different constitutional rights to an open trial? • Public, under the 1st Amendment • Defendant, under the 6th Amendment. • Why does the defendant have a right to a public trial? • Is it at issue under CIPA? • To the contrary, CIPA plainly envisions that substitutions and redactions will be made available in the same form to the public as to the trial participants. This is confirmed not only by the plain meaning of CIPA’s text, but also by the absence of any statutory language or legislative history concerning the First Amendment considerations raised by the partial closing of the trial that results from the SWR’s use.

50. Since the SWR effectively closes part of the trial, what is the standard from Press-Enterprise for closing a trial? • (i) that a compelling interest exists to justify the closure, • (ii) that the closure is no broader than necessary to protect that interest, and • (iii) that no reasonable alternatives exist to closure. • Would classified information meet this test?