Mazzone, Jason; Fischer, Tobias --- "The normalization of anonymous testimony" [2013] ELECD 681; in Cole, David; Fabbrini, Federico; Vedaschi, Arianna (eds), "Secrecy, National Security and the Vindication of Constitutional Law" (Edward Elgar Publishing, 2013) 195

Book Title: Secrecy, National Security and the Vindication of Constitutional Law

Editor(s): Cole, David; Fabbrini, Federico; Vedaschi, Arianna

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781781953853

Section: Chapter 12

Section Title: The normalization of anonymous testimony

Author(s): Mazzone, Jason; Fischer, Tobias

Number of pages: 14

Abstract/Description:

In recent years a remarkable development has occurred in criminal justice systems around the world: an increase in the use of testimony from witnesses whose identities are kept secret. Most strikingly, use of anonymous testimony has expanded vastly in adversarial systems despite the long-recognized right of an accused to confront his or her accusers. Once confined to trials of war criminals before international tribunals, terrorists and other extraordinary defendants, anonymous testimony has become a normal part of criminal justice throughout much of the world. In the United States, by contrast, shielding a witness’s identity in criminal cases is almost unheard of. In fact, during the period in which other adversarial systems have embraced anonymous testimony, the US Supreme Court has issued a series of rulings strengthening the right of criminal defendants to confront their accusers in open court. Anonymous witnesses have been permitted to testify in US courts in cases involving terrorism and gang-related murders, for example, but they truly remain the exception. At first blush, it might appear that if there is to be anonymous testimony it should be – as it is in the United States – a rare occurrence because of both the resulting limitations on the rights of defendants and the increased risk of erroneous convictions. However there is a viable argument that normalizing anonymous testimony, as has occurred in the three countries surveyed here – the United Kingdom, Australia and New Zealand – better protects the interests of defendants. Normalization is arguably preferable because judges and lawyers may develop better safeguards for routine,