The silent witness rule is the use of "substitutions" when referring to sensitive information in the United States open courtroom jury trial system. 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 A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pr ...

(especially the right of the accused to a

public trial Public trial or open trial is a trial that is open to the public, as opposed to a secret trial. It should not be confused with a show trial. United States The Sixth Amendment to the United States Constitution establishes the right of the accus ...

, and the right to due process). In practice the rule has been rarely used and was often challenged by judges and civil rights advocates. Its use remains controversial.

Background

The conflict between the open court and state secrets privilege goes back to at least 1802 and ''

Marbury v. Madison ''Marbury v. Madison'', 5 U.S. (1 Cranch) 137 (1803), was a landmark U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws and statutes t ...

''. 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 The Classified Information Procedures Act or CIPA ( through ) is codified as the third appendix to Title 18 of the U.S. Code, the title concerning crimes and criminal procedures. The U.S. Code citation i18 U.S.C. App. III. Sections 1-16 Legislativ ...

(CIPA) was passed as an attempt to deal with the conflict, especially the problem of

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. Graymail is used as a de ...

. The silent witness rule (SWR) 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 not used due to

interlocutory appeal An interlocutory appeal (or interim appeal), in the law of civil procedure in the United States, occurs when a ruling by a trial court is appealed while other aspects of the case are still proceeding. Interlocutory appeals are allowed only under s ...

) * ''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. 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. *'' United States v. Ahmed Abu Ali'', 2005. The jury was given the full evidence, while the defendant was given redacted evidence. The Fourth Circuit later ruled this unconstitutional, a violation of the 6th Amendment's

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."'' The right only applies to cri ...

''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 information at a trial. The judge for the trial, T. S. Ellis III, disagreed that CIPA was the only acceptable way to deal with classified information. He also felt that the SWR was not really part of CIPA either. Ellis created a four-part "fairness test" to decide whether the SWR was fair. His test was a combination of the CIPA fairness test and the '' Press-Enterprise Co. v. Superior Court'' fairness test. Ellis' theory was based on the idea that the SWR effectively "closes a trial" from the public by disclosing different sets of evidence to the court and to the public. The four parts of his test were as follows: *There must be an overriding reason to close the trial *The closure must be "no broader than necessary" *There must be no alternatives *The SWR must "provid 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 the 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 the SWR figured into the proceedings.

Arguments

Lamb argues that the silent witness rule would enable trials to go ahead that would otherwise be dismissed because of the state secrets privilege. 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'', 345 U.S. 1 (1953), is a landmark legal case in 1953 that saw the formal recognition of the state secrets privilege, a judicially recognized extension of presidential power. Overview Three employees of the Radio ...

'', in which widows of Air Force contractors sued the government; 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 (born December 12, 1970) is an American national security and human rights attorney known for her defense of whistleblowers, journalists, and hacktivists. She graduated from Brown University and Yale Law School and began her car ...

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.

Decisions

Ellis decision on silent witness rule
US v Rosen, fro
fas.org

References

{{reflist, refs = {{cite web , url = http://news.findlaw.com/hdocs/docs/lindh/uslindh51702gclsdoc.pdf , year= 2002 , accessdate = 2011-04-12 , title = GOVERNMENT'S DESIGNATION OF CLASSIFIED DOCUMENTS, US v. Lindh , author = US district court for the Eastern district of Virginia. {{ cite web , url = http://dyn.politico.com/members/forums/thread.cfm?catid=1&subcatid=71&threadid=5183115 , date = Mar 10, 2011 , accessdate = 2013-06-03 , author = Josh Gerstein , publisher = Politico , title = DoJ to use secret code in leak trial , url-status = bot: unknown , archiveurl = https://web.archive.org/web/20110314164028/http://dyn.politico.com/members/forums/thread.cfm?catid=1&subcatid=71&threadid=5183115 , archivedate = 2011-03-14 {{ cite web , url = http://washingtonexaminer.com/blogs/beltway-confidential/2011/03/baltimore-jurors-might-need-secret-decoders , date= 2011-03-23 , accessdate = 2011-04-11 , title = Baltimore jurors might need secret decoders , author = Barbara Hollingsworth {{ cite web , url = http://articles.baltimoresun.com/2011-03-10/news/bs-md-drake-trial-20110310_1_espionage-case-fort-meade-based-agency-drake-case , title = Prosecutors in NSA case want to use code in court , author = Tricia Bishop , date = 2011-03-10 , accessdate = 2011-04-13 , publisher = Baltimore Sun {{cite web , ssrn = 1125459 , title =The Muted Rise of the Silent Witness Rule in National Security Litigation , author = Johnathan M. Lamb, Pepperdine Law Review, Vol. 36, p. 213 , year= 2008 , publisher = ssrn.com {{ cite web , url = http://www.fas.org/sgp/crs/secrecy/R41742.pdf , title=Protecting Classified Information and the Rights of Criminal Defendants: The Classified Information Procedures Act , date = 2011-03-31 , accessdate = 2011-04-14 , author1=Edward C. Liu , author2=Todd Garvey, CRS , name-list-style=amp , publisher = Federation of American Scientists {{ cite web , url = http://www.dailykos.com/story/2011/03/11/955179/-Kafka:-Govt-Tries-Barring-Newspaper-Articles,-WhistleblowingOver-Classification-at-Drake-Trial- , author = Jesselyn Radack , publisher = DailyKos , title = Kafka Govt Tries Barring Newspaper Articles, Whistleblowing, Over-Classification at Drake Trial , date = 2011-03-11 , accessdate = 2011-04-13 United States government secrecy Evidence law Civil procedure

Background

''United States v. Rosen''

Arguments

See also

Decisions

References