Tuesday, December 13, 2011

Fifth Circuit allows testimony under pseudonyms

Once again I'm writing on the question of where the Confrontation Clause should be treated categorically and where as a balance.

In United States v. El-Mezain, issued on December 7, a unanimous panel of the Fifth Circuit upheld a trial court decision allowing two prosecution witnesses to testify under pseudonym. My former student Patrick Luff, now teaching at Washington & Lee, put me on to an essay on the case by another former student, Jeffrey Kahn of the SMU faculty.) I would not be surprised if, assuming the decision is not vacated by the full court sitting en banc, the case heads up to the Supreme Court.

The case concerns a purported charity, Holy Land Foundation (HLF), that the Government alleges funneled money to Hamas; the defendants are HLF and five individuals. Among the witnesses against them were a legal adviser to the Israeli Security Agency, who testified under the name “Avi” about Hamas financing methods, and a member of the Israeli Defense Forces (IDF), who testified as “Major Lior” to authenticate documents seized by IDF during a military operation. The defense objected, the trial court allowed the testimony, the defendants were convicted, and the Fifth Circuit panel has now affirmed.

Smith v. Illinois, 390 U.S. 129 (1968), seems to stand pretty squarely in the way of the decision. The majority there, per Justice Stewart, said flatly:
[W]hen the credibility of a witness is in issue, 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. The witness' name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.
The panel attempts to avoid Smith first by citing Roviaro v. United States, 353 U.S. 53 (1957), which spoke of “balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense.” But goodness, Roviaro involved the defendant’s attempt to learn the name of an informer, not someone who had testified against him at trial; the confrontation right was not at play.

The panel also tries to suggest that Smith was a balancing case, but that seems to me to be a stretch. The panel is, however, able to point to the concurring opinion in Smith of Justice White, joined by Justice Marshall. He said that,

if the question asked is one that is normally permissible, the State or the witness should, at the very least, come forward with some showing of why the witness must be excused from answering the question. The trial judge can then ascertain the interest of the defendant in the answer, and exercise an informed discretion in making his ruling.

In Smith, he said, that was not done. And therefore, he joined the Court’s opinion, adding that, as he understood it, the opinion was “not inconsistent with these views.” I would have thought the unqualified language of the majority opinion was indeed inconsistent with those views, and that it was sufficiently obvious why the witness, who said he had bought heroin from Smith with marked money provided by police officers, might have felt fearful. But perhaps the Supreme Court of this era will resolve the matter.

Here, it does seem that the Government presented reasons to be concerned about the witnesses’ safety (though I believe that personally I would feel far less protected if I were a Chicago heroin purchaser testifying against my supplier than if I were an Israeli officer testifying against Hamas). It is not clear to me how important the testimony of these particular witnesses was to the prosecution case; Avi was presumably not the only person with the necessary expertise, and Major Lior was not even present at the seizure.

The panel emphasized how much the defense was able to do on cross; it appears to me that this does not meet the concern that other possibilities for discrediting the testimony cannot be pursued.

The panel also gave cursory attention to the possibility that identifying information might have been provided in confidence to defense counsel. Indeed, the panel gave no reason to suppose that any danger could not be avoided by making the disclosure to counsel alone. Compare United States v. Celis, 608 F.3d 818 (D.C. Cir. 2010). The panel did say that such limited disclosure was “unlikely to yield useful information.” It seems to me that this reasoning is precluded by Smith, which quoted an earlier case, Alford v. United States, 282 U.S. 687 (1931), also involving hiding the witness’s place of residence:
It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. . . . To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief is to deny a substantial right and withdraw one of the safeguards essential to a fair trial. . . .
It seems to me there should be a categorical right to have the information disclosed to counsel, under satisfactory confidentiality protections.


Anonymous said...

"Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. "

And yet, somehow, Hardy meets this test even though the testimony and cross happened at a different trial in front of a different jury.

O' Vey.

Richard D. Friedman said...

As I've now said several times, a prior opportunity for confrontation has always sufficed if the witness is unavailable at the current trial.

Andrew MacKie-Mason said...

I don't think a categorical right to the name can be sustained, either based on the cited precedent or as a matter of policy without leading to some troubling results.

To take the case you cited first: Smith v. Illinois isn't a claim about a categorical principle -- not really. Instead, it's a balancing test that (as all too often happens) the judge wraps up in categorical language because they're so sure of the way the issues will be balanced in all possible future cases.

Look at what they point to in Smith: The availability of the witness's name is important because it opens up avenues of investigation and inquiry. Not having it would "emasculate the right to cross-examination."

That isn't the language of a categorical principle. It's the language of someone who (rightly) thinks that the name is highly important to an effective cross-examination. But that importance can shift.

To put it another way: As they say in Alford, we give "latitude" to cross-examiners because shutting down whole threads of inquiry would might prevent useful information from coming out, even if the usefulness isn't immediately evident. The availability of the name is just another instance of that: it would seem to shut down a broad range of possible inquiry, and so it's very suspect.

But there's never, as far as I know, been a recognized right in cross-examination to pursue *any* line of reasoning. If I'm the victim of a robbery, and the defense attorney starts asking questions about my sexual history (absent any inkling of a relevant basis) the judge would rightly shut that questioning down. That's true even though it's hypothetically possible that the questions could lead somewhere useful: perhaps I have a history with someone known to the alleged robber, and that relationship opens up possible motives for me to perjure myself.

That example also illustrates another point: the judge would probably shut down an inquiry into my sexual history before a similar inquiry into mere acquaintances -- say if the defense attorney were trying to ascertain if there was any connection between me and the defendant.

That difference is at least in part because we acknowledge the privacy rights of the witness, and more invasive questions are less likely to be permissible.

So my point is this: there is a balancing that goes on in weighing a defendant's right to explore certain avenues of questioning, and various interests that weigh against those questions being pursued. It's a balance that's heavily weighted in the defense's favor, especially when it comes to such fundamental facts as the witness's name. But that doesn't mean we should hide the balancing or ignore the factors that go into it.

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