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Univ. of South Carolina School of Law

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Sunday, June 22, 2008

Masked And Anonymous: U.K. Law Lords Rule That Defendants Have A Right To Know The Identity Of Witnesses Testifying Against Them

On Wednesday, in a ruling which applies to criminal cases in England, Wales, and Northern Ireland, the Law Lords decided that have a defendants have a right to know the identity of witnesses testifying against them when they quashed a double murder conviction against Iain Davis.  According to a senior police officer, this was a "potentially disastrous" ruling which could result in "[a] lot of good work being undone" and up to 40 appeals by inmates convicted in trials in which anonymous testimony was rendered against them.  My response is that I can't believe such a ruling hadn't been rendered previously.

Davis was convicted of the New Year's Day 2002 killing of two men in flat in Hackney, east London, with seven witnesses against him being granted anonymity after claiming to be in fear for their lives if it became known that they had given evidence against Davis.  The terms of this anonymity were that the trial judge directed that:

     -(1) the witnesses would give evidence under pseudonyms;

     -(2) their personal identifying details would be withheld from the defendant and his advisers;

     -(3) Davis' counsel would not be permitted to ask any question from which they might be identified;

     -(4) they would give evidence screened from Davis; and

     -(5) their voices would be distorted to prevent him recognizing them.

In other words, it's sort of like the technique that the United States Supreme Court found violated the Confrontation Clause in Coy v. Iowa, 487 U.S. 1012 (1988), but taken to the nth degree.  The "across the pond" differences can be explained by the son surpassing the father.  In the wake of the abuses of the Star Chamber, an expeditious way for the Tudors and Stuarts to exorcize political and religious dissenters of the monarchy masquerading as a court conducting treason trials, England developed a common law tradition that, subject to certain exceptions and statutory qualifications, the defendant in a criminal trial should be confronted by his accusers in order that he might cross-examine them and challenge their evidence.  While us Yanks took the torch from this tradition and Constitutionally codified the right to confront witnesses under the Sixth Amendment, the English tradition remains just that, a tradition, subject to extreme exceptions such as those applied in Davis' trial.

That is, until the Law Lords ruled that the anonymity of the witnesses against Davis did not comport with his right to confront the witnesses against him and that a new trial was required because his conviction was dependent upon the testimony of three of these witnesses.  According to the Lords, the protective measures imposed hampered the conduct of the defense in a manner and to an extent which was unlawful and rendered the trial unfair.  I couldn't agree more. But what do readers think?  Are there cases where witness fear trumps the right of confrontation and justifies anonymity? 

-CM

http://lawprofessors.typepad.com/evidenceprof/2008/06/anonymous-witne.html

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