The Fourth Circuit recently decided United States v. Ramos-Cruz, a case involving an MS-13 member who was convicted of assorted federal crimes, all generally tied to his gang membership and activity. The defendant appealed, inter alia, “the district court’s decision to permit two witnesses to testify against him without revealing their names or other identifying information.” I thought it was an interesting issue, so I looked into it a bit.
The two witnesses in question were police officers from El Salvador. The Government sought permission for them “to testify under pseudonyms and without revealing their dates and places of birth and home and work addresses,” arguing that the officers and their families would be endangered if it were known that they had testified. The Government submitted affidavits from the witnesses regarding the danger, and it “disclosed . . . in advance the substance of their proposed testimony,” which concerned MS-13 generally, not the defendant’s conduct specifically. The district court held an ex parte hearing and granted the Government’s motion. It also ruled that there was no Giglio impeachment information for the Government to disclose.
On appeal, the defendant argued that the trial court’s “ruling violated his Sixth Amendment right to confrontation, arguing that without the withheld information, he was not able to conduct independent research about the witnesses’ veracity.” The Fourth Circuit agreed that normally, “the Confrontation Clause guarantees a defendant the right to question an adverse witness about identifying information, including his full name and address,” citing Smith v. Illinois, 390 U.S. 129 (1968). However, it stated that identifying information may be withheld if the Government establishes an “actual threat” to the witness. The Fourth Circuit, after reviewing the affidavits filed by the witnesses, found no abuse of discretion in the district court’s determination that an actual threat existed. It further noted that the witnesses’ testimony did not concern the defendant directly, and that the Government revealed the witnesses’ testimony to the defense in advance in order to facilitate meaningful cross examination.
I couldn’t find any North Carolina cases on point. If you know of one, please let me know. Gang cases, including MS-13 cases, are regularly tried in North Carolina’s state courts, so it seems as though the issue could come up here as well. It’s somewhat similar in principle to the idea of granting protective orders limiting discovery based on danger to a witness under G.S. 15A-908, though it seems like a more extreme measure that should be taken only in quite unusual circumstances.
Those interested in further reading might look at the law review literature. A couple of articles that caught my eye were Mirjan Damas̆ka, The Competing Visions of Fairness: The Basic Choice for International Criminal Tribunals, 36 N.C. J. Int’l L. & Com. Reg. 365 (2011) (“[F]ew [nations] reject anonymous witness testimony out of hand. Most of them allow the use of anonymous testimony as a means of last resort in some circumstances, provided that anonymity is the only available measure to protect the witness.”), and Joan Comparet-Cassani, Balancing the Anonymity of Threatened Witnesses Versus a Defendant’s Right of Confrontation, 39 San Diego L. Rev. 1165 (2002) (principally discussing California law).