Silent witness rule
Encyclopedia
The silent witness rule is the use of 'substitutions' when referring to sensitive information in the United States open courtroom jury trial system. The phrase was first used in US v. Zettl, in 1987. An example of a substitution method is the use of code-words on a 'key card', to which witnesses and the jury would refer during the trial, but which the public would not have access to. The rule is an evidentiary doctrine
that tries to balance the state secrets privilege
with the bill of rights
(especially the right of the accused to a public trial
, and the right to due process
). In practice the rule has been rarely used and often challenged by judges and civil rights advocates. Its use remains controversial.
goes back to at least 1802 and Marbury v. Madison
. Under the privilege, the government can dismiss any charges against it by claiming that important state secrets would be revealed at trial. In 1980 the Classified Information Procedures Act
(CIPA) was passed as an attempt to deal with the conflict, especially the problem of graymail
. The Silent Witness Rule is a further attempt.
By 2011 the government had only attempted to use the rule a handful of times, often unsuccessfully:
In Lindh, the government planned to use the rule to protect the identities of US military personnel. The case never went to trial because Lindh made a plea bargain
.
In US v. Ali, the jury was given the full evidence, while the defendent was given redacted evidence. The Fourth Circuit later ruled this unconstitutional, a violation of the 6th Amendment's Confrontation Clause
.
Rosen argued that the rule was invalid because he felt it did not match CIPA requirements, and that the government had said CIPA was the only way to deal with classified info at a trial. The judge for the trial, T. S. Ellis III, disagreed that CIPA was the only acceptable way to deal with classified info. He also felt the SWR was not really part of CIPA either.
Ellis created a four-part 'fairness test' to decide whether SWR was fair. His test was a combindation of the CIPA fairness test and the Press-Enterprise Co. v. Superior Court fairness test. Ellis' theory was based on the idea that SWR effectively 'closes a trial' from the public by having differing evidence betwixt the court & public. The four parts of his test were as follows:
Judge Ellis decided that the Rosen case met the fairness test, and approved use of SWR at trial. It was used for 4 minutes 6 seconds of playback of a conversation. However, Ellis sealed (kept secret) the exact way that SWR figured into the proceedings.
. He especially points out El-Masri v. Tenet, in which a German citizen was allegedly kidnapped and raped by CIA agents but was never allowed to present his case in court, and United States v. Reynolds
, in which widows of dead pilots were defrauded out of proper compensation by dishonest Air Force officers; both cases were dismissed because the government claimed the trial would reveal national secrets.
The rule has received media coverage for its suggested use by the government in United States v. Drake (2010). Bishop, in the Baltimore Sun, writes that lawyers say the "secret codes quickly become confusing and risk violating the defendant's constitutional rights to a public trial." Jesselyn Radack
of the Government Accountability Project called it an "oxymoron", and pointed out that it "would still allow jurors to see classified information, defeating the whole purpose of classification". Josh Gerstein at Politico wrote that it might create conflict between the prosecution and the news media.
Rules of evidence
Rules of evidence govern whether, when, how, and for what purpose, proof of a legal case may be placed before a trier of fact for consideration....
that tries to balance the state secrets privilege
State Secrets Privilege
The state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information...
with the bill of rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
(especially the right of the accused to a public trial
Public trial
Public trial or open trial is a trial open to public, as opposed to the secret trial. The term should not be confused with show trial.-United States:...
, and the right to due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
). In practice the rule has been rarely used and often challenged by judges and civil rights advocates. Its use remains controversial.
Background
The conflict between the open court and state secrets privilegeState Secrets Privilege
The state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information...
goes back to at least 1802 and Marbury v. Madison
Marbury v. Madison
Marbury v. Madison, is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring...
. Under the privilege, the government can dismiss any charges against it by claiming that important state secrets would be revealed at trial. In 1980 the Classified Information Procedures Act
Classified Information Procedures Act
The Classified Information Procedures Act or , is codified as the third appendix to Title18 of the U.S. Code, the title concerning crimes and criminal procedures. The U.S. Code citation is .-Legislative Revision History:...
(CIPA) was passed as an attempt to deal with the conflict, especially the problem of graymail
Graymail
Graymail is the threatened revelation of state secrets in order to manipulate legal proceedings. It is distinct from blackmail, which may include threats of revelation against, and manipulation of, any private individual...
. The Silent Witness Rule is a further attempt.
By 2011 the government had only attempted to use the rule a handful of times, often unsuccessfully:
- United States v. Zettl 1987 (court approved, but it wasn't used b/c of interlocutory appealInterlocutory appealAn interlocutory appeal , in the law of civil procedure, is an appeal of a ruling by a trial court that is made before the trial itself has concluded. Most jurisdictions generally prohibit such appeals, requiring parties to wait until the trial has concluded before they challenge any of the...
) - United States v. Oliver North 1990 (court rejected the idea)
- United States v. Fernandez 1990 (court rejected the idea)
- United States v. John Walker Lindh 2001
In Lindh, the government planned to use the rule to protect the identities of US military personnel. The case never went to trial because Lindh made a plea bargain
Plea bargain
A plea bargain is an agreement in a criminal case whereby the prosecutor offers the defendant the opportunity to plead guilty, usually to a lesser charge or to the original criminal charge with a recommendation of a lighter than the maximum sentence.A plea bargain allows criminal defendants to...
.
- United States v. Ahmed Abu Ali 2005
In US v. Ali, the jury was given the full evidence, while the defendent was given redacted evidence. The Fourth Circuit later ruled this unconstitutional, a violation of the 6th Amendment's Confrontation Clause
Confrontation Clause
The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." Generally, the right is to have a face-to-face confrontation with witnesses who are...
.
United States v. Rosen
In United States v. Rosen, in 2007, (the AIPAC Espionage Act case) the rule was used for the first real time. The government tried to use the rule extensively at first; the court rejected the idea.Rosen argued that the rule was invalid because he felt it did not match CIPA requirements, and that the government had said CIPA was the only way to deal with classified info at a trial. The judge for the trial, T. S. Ellis III, disagreed that CIPA was the only acceptable way to deal with classified info. He also felt the SWR was not really part of CIPA either.
Ellis created a four-part 'fairness test' to decide whether SWR was fair. His test was a combindation of the CIPA fairness test and the Press-Enterprise Co. v. Superior Court fairness test. Ellis' theory was based on the idea that SWR effectively 'closes a trial' from the public by having differing evidence betwixt the court & public. The four parts of his test were as follows:
- An overriding reason to close the trial
- The closure must be 'no broader than necessary'
- There can't be any alternatives
- The SWR must "provid[e] defendants with substantially the same ability to make their defense as full public disclosure of the evidence" would.
Judge Ellis decided that the Rosen case met the fairness test, and approved use of SWR at trial. It was used for 4 minutes 6 seconds of playback of a conversation. However, Ellis sealed (kept secret) the exact way that SWR figured into the proceedings.
Arguments
Lamb argues that the SWR would enable trials to go ahead that would otherwise go dismissed because of state secrets privilegeState Secrets Privilege
The state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information...
. He especially points out El-Masri v. Tenet, in which a German citizen was allegedly kidnapped and raped by CIA agents but was never allowed to present his case in court, and United States v. Reynolds
United States v. Reynolds
United States v. Reynolds, , is a landmark legal case in 1953 that saw the formal recognition of State Secrets Privilege, a judicially recognized extension of presidential power.- Overview :...
, in which widows of dead pilots were defrauded out of proper compensation by dishonest Air Force officers; both cases were dismissed because the government claimed the trial would reveal national secrets.
The rule has received media coverage for its suggested use by the government in United States v. Drake (2010). Bishop, in the Baltimore Sun, writes that lawyers say the "secret codes quickly become confusing and risk violating the defendant's constitutional rights to a public trial." Jesselyn Radack
Jesselyn Radack
Jesselyn Radack is a former ethics adviser to the United States Department of Justice who came to prominence as a whistleblower after she disclosed that the Federal Bureau of Investigation committed an ethics violation in its interrogation of John Walker Lindh , without an attorney present, and...
of the Government Accountability Project called it an "oxymoron", and pointed out that it "would still allow jurors to see classified information, defeating the whole purpose of classification". Josh Gerstein at Politico wrote that it might create conflict between the prosecution and the news media.
See also
- State secrets privilegeState Secrets PrivilegeThe state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information...
cases- Marbury v. MadisonMarbury v. MadisonMarbury v. Madison, is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring...
1803 - United States v. Burr 1807
- Totten v. United StatesTotten v. United StatesTotten v. United States, 92 U.S. 105 , was a United States Supreme Court case in which the court ruled on judicial jurisdiction in espionage cases...
1875 - Reynolds v. United StatesReynolds v. United StatesReynolds v. United States, , was a Supreme Court of the United States case that held that religious duty was not a suitable defense to a criminal indictment...
1953 - El-Masri v. Tenet 2006
- Marbury v. Madison
- Cases involving the Classified Information Procedures ActClassified Information Procedures ActThe Classified Information Procedures Act or , is codified as the third appendix to Title18 of the U.S. Code, the title concerning crimes and criminal procedures. The U.S. Code citation is .-Legislative Revision History:...
- United States v. Pelton 1986
- United States v. George 1992
- United States v. Kenneth Wayne Ford 2005
- Public trialPublic trialPublic trial or open trial is a trial open to public, as opposed to the secret trial. The term should not be confused with show trial.-United States:...
- Sixth Amendment to the United States ConstitutionSixth Amendment to the United States ConstitutionThe Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions...
Decisions
- Ellis decision on silent witness rule, US v Rosen, from fas.org