The Fourth Circuit’s decision yesterday in United States v. Ramos-Cruz held that the government’s withholding from the defense of the actual names of two prosecution witnesses did not violate the Confrontation Clause in the Sixth Amendment. Judge Duncan wrote the opinion for the court, in which Judge Niemeyer joined. Judge Floyd concurred in the judgment, reasoning that the use of pseudonymous witnesses violated the Sixth Amendment, but that the constitutional violation was harmless error.
For criminal proceduralists, Judge Floyd’s dissent in this case looks like a must-read opinion. Some excerpts:
I do not take lightly the safety concerns accompanying the decisions made by Juan Diaz and Jose Perez—the two witnesses who testified using pseudonyms—to testify against Ramos-Cruz. As the record reflects, MS-13 has demonstrated its willingness to engage in violent reprisal against witnesses who testify against its members. There is no denying that by agreeing to testify against Ramos-Cruz, Diaz and Perez exposed themselves to danger. Most assuredly, requiring them to state their true names in open court would have made it easier for MS-13 to target them and their families. Safety concerns were thus real and valid.
We must recognize, however, that these concerns inhere in many prosecutions of defendants who are members of violent criminal organizations. The sad truth is that, in this respect, the situation presented in today’s case is not rare. Gangs often employ violence as a means of intimidating witnesses. Laura Perry, Note, What’s in a Name?, 46 Am. Crim. L. Rev. 1563, 1580 (2009); Joan Comparet-Cassani, Balancing the Anonymity of Threatened Witnesses Versus a Defendant’s Right of Confrontation: The Waiver Doctrine After Alvarado, 39 San Diego L. Rev. 1165, 1194-96 (2002). Witness intimidation is a serious problem of an alarming magnitude, and it plagues many of our communities. See Alvarado, 5 P.3d at 222 & n.14; Comparet-Cassani, supra, at 1194-204. As a result, the prosecution of members of violent gangs—such as this prosecution of Ramos-Cruz—will often trigger safety concerns for many of the witnesses involved.
Nevertheless, in addressing these concerns, we cannot undermine our constitutional commitment to ensuring that criminal defendants, even those accused of belonging to violent criminal organizations, receive a fair trial. That means they must be allowed to rigorously test the government’s evidence, including all of its witnesses, in an adversarial proceeding before a jury. See Craig, 497 U.S. at 845; See Strickland v. Washington, 466 U.S. 668, 685 (1984). I am unconvinced that they are able to do so if the government can completely withhold the true names of its witnesses throughout the trial.
Access to the true names of the government’s witnesses is critical to ensuring that a criminal defendant is able to rigorously test their testimony in an adversarial manner. As noted, effective cross-examination often entails challenging the witness’s credibility. Hence, the opportunity for effective cross-examination, which the Sixth Amendment guarantees, includes the opportunity to challenge the witness’s credibility. See Van Arsdall, 475 U.S. at 679-80. But without a government witness’s true name, the criminal defendant is unable to perform the type of investigation—whether in court or out of court—necessary to be able to challenge his credibility. See Smith, 390 U.S. at 131. The criminal defendant cannot explore the witness’s background and qualifications to discover any facts that might reflect poorly on his credibility. See Alvarado, 5 P.3d at 221. In effect, denying a criminal defendant knowledge of the true names of the government’s witnesses severely inhibits his ability to perform what is often the most potent aspect of effective cross-examination: impeachment. In my opinion, because completely forbidding a criminal defendant from learning a witness’s true name prevents the opportunity for effective cross-examination, it denies the defendant a fundamental aspect of a fair trial.
My concerns with completely denying criminal defendants access to the true names of the witnesses testifying against them extend beyond practical consequences. Allowing the use of anonymous witnesses also undermines the perception that our criminal trials are open and even contests. Instead, it creates the impression that our criminal trials contain clandestine aspects that operate to provide the government with an upper hand. It does so by suggesting that convictions can be “based on the charges of . . . unknown—and hence unchallengeable—individuals,” Lee, 476 U.S. at 540, even if they can be physically seen. Simply put, obtaining a conviction by using anonymous witnesses appears eerie and covert, and does not inspire confidence in the promise that our criminal trials are open and even endeavors.
Interestingly, the majority opinion does not directly address the bulk of Judge Floyd’s constitutional arguments on their merits, but largely defers to the court’s prior unpublished opinion in United States v. Zelaya addressing the propriety of these witnesses’ testimony in a different case. Although Judge Floyd ultimately concurred in the judgment because he held that the Sixth Amendment error was harmless, I would not be surprised to see the Fourth Circuit decide to consider this issue en banc.
The majority opinion also discusses the standard of review for allegedly erroneous jury instructions (including a detailed discussion of harmless error) and the elements of the federal witness-tampering statute. Read the whole thing.