Anonymous Witnesses in Criminal Cases

Do you have the right to confront anonymous witnesses used by the prosecution in a criminal trial? A recent federal court case posed this question when anonymous witnesses testified in court.

At the trial, several witnesses testified against the accused, who allegedly smuggled an illegal immigrant across state lines. The prosecution claimed that these witnesses faced a safety risk by testifying, so their true names and identities were concealed from the accused and her attorney. While her attorney was able to cross-examine the witnesses and received information about their criminal histories and the benefits they received from assisting law enforcement, the defense was not able to conduct a detailed pre-trial investigation of them. United States v. Gutierrez De Lopez, No. 13-2141 (10th Cir. 2014).

The accused was convicted based in part on the testimony of the anonymous witnesses. On appeal to the Tenth Circuit Court of Appeals, the federal appeals court that hears cases from Oklahoma, she argued that use of these anonymous witnesses violated her rights under the Confrontation Clause of the Sixth Amendment to the Constitution. United States v. Gutierrez De Lopez, No. 13-2141 (10th Cir. 2014). The Confrontation Clause gives defendants in criminal cases the right to confront witnesses against them.

When using anonymous witnesses, the prosecution must show that the witnesses’ testimony will place them in actual danger. See, e.g., United States v. Ramos-Cruz, 667 F.3d 487, 500 (4th Cir. 2012). If the prosecution can show actual danger, then the court determines whether anonymity deprived the defendant of an opportunity for effective cross-examination. See Ramos-Cruz, 667 F.3d at 500. Generally the defendant must be able to question the witness in detail on cross-examination, especially regarding background and credentials.

In its opinion, the Tenth Circuit noted that the prosecution did not establish any actual danger to the witnesses, failing to show a need for secrecy. Despite the lack of actual danger, the accused did have an opportunity to effectively cross-examine them. In particular, the prosecution provided the defense with extensive background information and impeachment evidence on the witnesses prior to their testimony, and the defense attorney then conducted a detailed cross-examination using the evidence. As a result, the Tenth Circuit decided that the error in allowing anonymous testimony despite a lack of actual danger was harmless and denied the defendant’s appeal. United States v. Gutierrez De Lopez, No. 13-2141 (10th Cir. 2014).

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