This year, one of the most interesting cases the Supreme Court
had considered whether to hear is Elashi v. United States. This
case has ties to terrorism, inevitably bringing into play a certain level of
deference to the government’s national security interest; however the central
issue is whether the Sixth Amendment to the Constitution allows the government
to present evidence from anonymous witnesses. While Court denied the defendants’ petition for certiorari on
October 29, the case involves interesting questions that could be repeated in
the future.
The defendants in this case were involved with an
organization called the Holy Land Foundation for Relief and Development
(HLF). The defendants claim this
organization was a humanitarian charity that sent assistance to Palestinians
living in the West Bank and Gaza, which are territories occupied by
Israel. The government, on the
other hand, maintains that HLF raised funding for Hamas, which was designated as a Foreign Terrorist Organization.
The defendants were charged with, among other things, providing material
support to a foreign terrorist organization, and their appeals were consolidated into one case at the Fifth Circuit.
At trial, the government provided evidence against the
defendants using several witnesses who testified under pseudonyms in order to
protect the witnesses’ security, as well as national security in a broader
sense. These witnesses included
“Avi,” who worked for the Israeli Security Agency and testified as an expert
about how Hamas’s financing, and “Major Lior,” who worked with the Israeli
Defense Forces and testified in order to authenticate documents seized during a
military operation.
The defendants claim that allowing these witnesses to
testify under false names deprived the defendants from being able to
meaningfully cross-examine the witnesses about issues like credibility and
their background. The defendants argue
that without these witnesses’ names, they could not research their credentials,
or look for prior acts that they could impeach the witnesses with at
trial. According to the
defendants, without the opportunity to research the witnesses’ backgrounds and
without the opportunity to ask these witnesses questions about their history,
the defendants could not confront the witnesses adequately under the Sixth
Amendment. The Sixth Amendment
requires that defendants have the right to confront witnesses against them,
which has been interpreted as the ability to cross-examine them at trial.
The Fifth Circuit Court held that the government was
permitted to allow these witnesses to testify under pseudonyms for witness
safety and national security purposes.
The Fifth Circuit found that the district court should be allowed
discretion when deciding whether it is appropriate to let a witness testify
under a false name. Defendants
must only have the opportunity to show the jury the facts that the jury could
use to determine whether or not the witness was reliable or believable.
In this case, the district court applied a balancing test
to decide whether to allow the witnesses to testify under false names. The district court balanced the
defendants’ interests in learning the witnesses’ names with the government’s
interest in keeping the names secret for witness security and national
security. The circuit court
readily agreed, finding that Hamas, as well as other terrorist organizations,
had a history of finding the identities of agents such as these witnesses in
order to target them.
The circuit court also found that national security and
safety tilts the balance away from the defendants’ need to cross-examine the
witnesses. This is because, among
other things, the circuit court found that the government provided the defense
with ample material that the witnesses relied upon to formulate their
opinions. The government also
agreed to allow the defense to ask the witnesses questions about their
background, training and experience, education, and any biases. As they were allowed such wide latitude
to cross-examine the witnesses, the circuit court found that they had adequate
opportunity to cross-examine under the Sixth Amendment.
The defendants’ response to this seems to be that they did
not have enough information that would provide potential specific avenues to
cross-examine the witnesses. If
the defense had been provided with the names of the witnesses, it would have
been able to investigate possible areas where it could have specifically
focused its questions.
The best argument in the defendants’ favor is that the
Supreme Court has previously refused to allow the government to present
evidence using witnesses who testify under false names in Smith v. Illinois. That case found that “the very starting point in ‘exposing falsehood and bringing out
the truth’ through cross-examination must necessarily be to ask the witness who
he is and where he lives.”
Further, allowing the defense access to the witness’s identity allows the
defense to investigate the witness both in and out of court.
The circuit court distinguished the Elashi case with Smith because the question in Smith was primarily whether a single
witness was credible because that witness was the only one, other than the
defendant, to testify about the events at trial. In Elashi,
however, the witnesses were not the only ones to testify at trial, and as such
the defendants did not need the same leeway into investigating the witnesses
outside of cross-examination.
The Supreme Court denied certiorari in this case on
October 29, 2012. This is likely because
even if the defendants convinced the Court that they had a constitutional right
to confront their accusers under the Sixth Amendment with the benefit of
knowing their real names, the defense would still have to prove that the trial
court’s error was not harmless. In order to show that the error was not harmless, the defense will have to
show that a reasonable jury might have significantly differed in their opinions
about the witness if the defense had been allowed to know their identities. The problem with this standard in Elashi is that the defense does not have
the information it needs to conduct that investigation into the witnesses. As it does not have that information,
it cannot show the Court that it would have been able to
change the jury’s mind about the witnesses’ credibility.
It is a shame this case will not proceed to the Supreme
Court. Whether the government
would now be allowed to present witnesses under false names at trial would have
far reaching effects, even to cases not dealing with terrorism. Prosecutors would likely be able to
convince more witnesses to testify at trial if they did not have to reveal the
witnesses’ true names. Many
witnesses are scared of retribution if they testify at trial, even if they were
the victims of the crime. If the
Supreme Court took this case, it would have the opportunity to reverse its
holding in Smith, and give
prosecutors more ability to put criminals behind bars.
Bonnie Lindemann
Blogger, Criminal Law Brief
That the first trial ended with a hung jury proves that the secret witnesses were decisive. Any claim otherwise is a mask on a political decision by the courts.
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