Saturday, June 11, 2011
Norman Abrams (UCLA Law School) has posted Terrorism Prosecutions in Federal Court: Exceptions to Constitutional Evidence Rules and the Development of a Cabined Exception for Coerced Confessions on SSRN. Here is the abstract:
The issue of where to prosecute Guantanamo detainees, as well as future terrorism defendants has been a topic of spirited public debate. Generally, the choice has been seen primarily as between three options, civilian federal courts, military commissions, or a new national security court, not-yet created. A fourth alternative (perhaps some would characterize it as a variation on the civilian court option) would involve utilization of some special rules in federal court criminal terrorism trials, that is, exceptions to usually-applicable constitutional rules of evidence based on terrorism-related elements in the case. To illustrate the approach, a series of such exceptions, some already recognized under existing law and some proposed herein, are addressed in this paper.
In the first part, four existing "exceptions" to constitutional rules of evidentiary admissibility are examined - relating to fourth amendment protections, compulsory process, confrontation and Miranda. The first two of these exceptions were originally developed in connection with terrorism investigations; the second two were first formulated in situations involving exigent circumstances-public safety concerns. The paper proposes that the latter two public safety exceptions be extended to apply in terrorism investigations. (Recently-made-public FBI guidelines have been promulgated which adapt the New York v. Quarles/Miranda public safety exception for use in interrogating suspected terrorists.) The paper identifies elements common to all four exceptions and identifies how these common elements are applied differently in connection with each of the exceptions, because of differences in the applicable constitutional doctrines.
The second part of the paper, building on the first part and the existing and proposed terrorism investigation exceptions, examines a proposal for creating an entirely new exception relating to a fifth constitutional admissibility doctrine, one involving a hallowed area of constitutional criminal procedure - coerced confessions. A cabined exception is proposed, that is, one which, in exigent circumstances involving terrorism, would apply an exception and allow government agents to utilize non-extreme police interrogation methods, the use of which, under existing supreme court precedents, would ordinarily have been ruled to violate the Constitution. Arguments and issues suggested by this proposal are examined in depth. A preliminary summary of the terms in which this exception might be cast is also included. Finally, whether the exception should be created by legislation or judicial interpretation is addressed.
Adoption of the several proposals discussed here would, of course, affect the conduct of future terrorism trials in the federal courts as well as the interrogation practices of the FBI and other government agencies. Adding to civilian court criminal trial process, specific exceptions, with the goal of making it somewhat easier to obtain intelligence in serious terrorism cases and introduce into evidence statements obtained from such interrogations, would reduce some of the perceived process advantages that the options of military commission trials and a national security court, as proposed, have over the federal civilian court alternative. It could thus significantly influence the terms of the debate over what is the best way to proceed in prosecuting terrorists.