Can Defendants Confront Their Accusers When They’re Anonymous?

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