2056
Preparation of Witnesses Whose Testimony May Involve
Classified Information
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Espionage and other national security-related prosecutions
frequently require expert witnesses for the government to testify concerning
highly sensitive intelligence gathering projects and sources affecting the
national security. Often, such witnesses are essential in establishing one
or more elements of the charge and in explaining to the jury the damage
suffered by the United States as a consequence of the defendant's actions.
Because of the highly sensitive nature of such testimony, prosecutors must
rely on extensive pretrial preparation and on the provisions of the
Classified Information Procedures Act (CIPA), 18 U.S.C. App. (Supp. V 1981),
to avoid unnecessary or inadvertent disclosures of classified information by
such witnesses during direct or cross-examination.
In preparing experts to testify concerning sensitive security
matters, prosecutors -- working with Internal Security Section attorneys and
consulting with representatives of the intelligence agency whose classified
information is at issue -- must first identify what particularly sensitive
areas may be subject to disclosure during the expert's direct or
cross-examination. Using CIPA sections 6(a) and (c), the government may
then seek, if necessary, pretrial evidentiary rulings on the relevance,
admissibility and use of such classified information, including rulings on
the scope of cross-examination of an expert witness.
Moreover, as an additional precautionary measure to prevent
unnecessary disclosures of classified information, section 8(c) of CIPA
addresses the problem presented during trial when the witness is asked a
question that would require him or her to disclose classified information
not previously found by the court to be admissible. Under section 8(c), the
prosecutor may object to any question or line of inquiry that may require
the witness to disclose such classified information. The court must then
take suitable action "as will safeguard against the compromise of any
classified information."
These CIPA procedures render it unnecessary, and indeed unwise, to
burden a witness, even one testifying about highly sensitive matters, with
extensive written instructions providing what may or may not be disclosed
from the witness stand. The result of such directives could be that the
witness may be unduly burdened, as he or she strives to be responsive and
forthcoming, yet remain within the parameters of exacting instructions.
Prosecutors and intelligence community representatives should also
note that written instructions to a witness could, in some circumstances,
become producible under Jencks. In United States v. Goldberg,
425 U.S. 94, 98 (1976), the Supreme Court held that a writing prepared by a
government lawyer relating to the subject of the testimony of a government
witness becomes producible under Jencks if it is "signed or otherwise
adopted or approved" by the witness. The Internal Security is prepared to
assist USAOs in analyzing these issues and deciding upon the appropriate
pretrial and trial use of CIPA and related procedures.
Please contact Ronald R. Roos, Senior Litigation Counsel, at (202)
514-1211, or Kevin P. Connolly, Senior Trial Attorney, Graymail Unit,
Internal Security Section, at (202) 514-1244, if you have any questions or
require further information.
[cited in USAM 9-90.200] | |