10th Circuit Court Finds that Anonymous Witnesses Do Not Violate Confrontation Clause

The Sixth Amendment of the United States Constitution guarantees a number of rights of utmost importance to defendants in criminal cases:

  • the right to a speedy and public trial
  • the right to an impartial jury in the district in which the alleged offense occurred
  • the right to be informed of the nature and cause of the charge or charges against him or her
  • the right to be confronted with witnesses against him or her
  • the right to a compulsory process for obtaining defense witnesses
  • the right to assistance of counsel

This fourth item, the right to confront one's accusers, is known as the Confrontation Clause of the Sixth Amendment. It is this clause which was a key issue in a recent criminal appeal before the Tenth Circuit Court of Appeals in Denver, the same federal appeals court which has jurisdiction over Oklahoma cases.

In United States v. Gutierrez de Lopez, Maria Leticia Gutierrez de Lopez was convicted of conspiring to transport undocumented aliens after being caught trying to transport an illegal immigrant from El Paso, Texas, to Denver, Colorado. She was sentenced to three years' probation, but she appealed the conviction.

A key issue in her appeal--one that could have had a significant impact on how state and federal agents use confidential informants--was the assertion that the use of anonymous witnesses in her trial violated the Confrontation Clause by denying her Sixth Amendment right to be confronted by witnesses against her.

Precedent holds that witnesses may testify anonymously if their testimony will place them in significant danger. In her appeal, Gutierrez de Lopez argued that the lower court failed to prove that there was any need for secrecy in allowing the witnesses to testify under aliases, and that if the witnesses' safety was truly a concern, the court would have used a curtain and disguised their voices to shield their identity. While the government did not provide the true identities of the confidential informants, it did give information about the criminal histories of the informants and the compensation they received for assisting law enforcement.

The appeal argued that, although the defense was able to cross-examine the witnesses based on the information provided at trial, it did not receive enough information to conduct thorough pre-trial investigation of the witnesses.

The Tenth Circuit found that the lower court "failed to justify secrecy" and did not adequately demonstrate a need for anonymity for the protection of the witnesses, but called that a "harmless error." The court ruled that the Confrontation Clause "requires the literal right to confront witnesses" and said that the defendant was given that opportunity through cross-examination. The court affirmed the conviction of Gutierrez de Lopez, despite the government's use of anonymous testimony without establishing safety concerns.

It seems a critical point that in order to allow anonymous testimony, the government would have to clearly demonstrate that revealing the true identity of the witness would place him or her in danger. However, calling a failure to do so a "harmless error" seems to open the door for presenting anonymous testimony without any real need to do so, which would indeed be a violation of the Confrontation Clause.

This is the second recent court case in which an anonymous accuser seems to trump the defendant's Constitutional rights. In late April, the United States Supreme Court ruled in Navarette v. Califonia that an anonymous tip was enough to merit reasonable suspicion and probable cause for a traffic stop, even if the responding law enforcement officer witnessed nothing himself or herself to verify the tip. The Court found that an anonymous tip, in and of itself, was not necessarily credible cause for suspicion, but with "adequate indicia of reliability," the officer could rely on an anonymous caller alone without his or her own visual verification of the alleged behavior.

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