Wednesday, May 14, 2014
Over at Lawyers, Guns & Money, historian Erik Loomis has a post on the arrest of Gerry Adams and its possible effect on the work of oral historians. For those unfamiliar with the recent arrest of Adams for questioning about a decades-old murder of a Belfast woman suspected of being an informant for the UK government (accused of informing against the IRA), see this article by Beth McMurtrie in the Chronicle of Higher Education. In short, reseachers conducted interviews with participants in the "Troubles" and promised them confidentiality, which they were unable to honor in the face of demands for evidence from federal officials complying with requests from UK counterparts.
For now, let's set aside entirely the question of whether the UK government---hardly an unbiased observer of events during the Troubles in Northern Ireland---is wise to pursue Adams at this time for the 1972 murder of Jean McConville. And let's ignore too the question of whether the United States was wise to (or bound by treaty to) obtain evidence on the UK's behalf from an oral history archive at Boston College. And let's further ignore whether various participants in the oral history project (historians and witnesses) were wise in their various doings.
(Having studied in Ireland for a year on a George Mitchell Scholarship during 2001-2002 and recently visited Belfast to deliver some lectures at Queen's University, I can't help observing how much better Belfast appeared this March than it did when I first visited. It was wonderful to see the optimism of Belfast Lord Mayor Máirtín Ó Muilleoir when he hosted me and my wife at the City Hall, I wish supporters of the peace process continuing success.)
Let's briefly consider instead the evidence law question presented: Should a university (or some other entity pursuing academic work) have the power to protect evidence obtained from research subjects from the prying eyes of law enforcement?
Should, say, someone researching murders in Belfast be able to promise witnesses that their interviews with historians will be kept confidential, either until the witnesses' deaths or for some other period of time? What about someone researching drug dealers in Chicago---should police be able to subpoena any notes recording who sold drugs to whom? Should the grand jury be entitled to the researcher's testimony about what she observed? Or should instead some rule prevent the collection of such evidence, to encourage the pursuit of academic work that might otherwise be chilled?
No such privilege exists under federal law, but one could be created by the courts "in the light of reason and experience" (pursuant to FRE 501) or by Congress in the light of pretty much anything.
Since the enactment of the Federal Rules of Evidence in 1975, the Supreme Court has been hesitant to create privileges that did not exist at common law. It has tweaked the spousal testimony privilege and recognized a therapist-patient privilege, but otherwise proponents of amending privilege law have not had much luck.
Personally, I would not support the creation of a privilege that would protect the Boston College oral history project affected by the Adams investigation. I have concerns about administrability (who counts as a researcher protected by the privilege?, must there by a promise of confidentiality in advance for the privilege to apply?, will the privilege be absolute or can it yield to necessity like the attorney work product doctrine, and if so, by what standards?, is the privilege controlled by the researcher herself or instead by her employer?). More important, I share the Court's hesitation to shield new categories of probative evidence from the finders of fact who choose winners and losers in our courts. I would want strong evidence that a new privilege would advance important social goals, and so far I'm not seeing it. How much oral history collection would really be threatened by the possibility of subpoenas? But I remain open to reconsideration in light of reason and experience, should readers have any thoughts to share.