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I know treason charges, in and of themselves, seems rarely pursued, in part because of its strict definition. However, I was interested in this restriction:

No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

Obviously, this was written in the late 1700s, with concerns of something like a "Star Chamber" being formed. However, we now have cameras and electronic records; non-witness means of verifying behavior. I was wondering if treason charges would be able to be brought in the following scenarios:

  1. A physical act of treason, captured on video recording
  2. An electronic act of treason, captured in an electronic record
  • Interesting question. I would wonder also about written evidence, whether by pen and ink or electronic communication. – phoog Mar 28 at 18:26
  • Probably a court would have to decide. It doesn't appear that anybody has been tried for treason in the US since the 1950s, so it's unlikely that there are previous rulings on questions of electronic evidence. – Nate Eldredge Mar 28 at 19:06
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    What would constitute an "electronic act of treason"? There are no mind-controlled computers yet, so if the accused is alleged to have, say, emailed secret documents to an enemy agent, the "overt act" would presumably be him sitting at his computer, typing/clicking the commands that caused the message to be sent. Thus I would assume you'd need a witness who saw him typing/clicking those commands. – Nate Eldredge Mar 28 at 19:16
  • @NateEldredge: I was thinking more of hacking into systems to cause physical harm; e.g. messing with a power grid; disabling radar stations or missile launchers or aircraft, that sort of thing. Your idea of needing a witness to see "typing commands" is interesting though...especially as those commands need not be inherently dangerous or illegal. "Write to table" is an every minute occurrence, but could be configured to be catastrophic in the right system with the right permissions. – sharur Mar 28 at 19:57
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    Cramer v. US might be relevant. The government had two witnesses who saw Cramer meeting with a pair of enemy agents, but those witnesses did not overhear what they discussed. This was held to not constitute an "overt act", and Cramer's conviction was reversed. – Nate Eldredge Mar 28 at 20:12
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Thus being a fundamental question of constitutional law, this translates into asking how SCOTUS would likely rule given a certain situation where e.g. there was no confession and the two-witness requirement is not satisfied. In the case of Cramer v. US, 325 U.S. 1, the direct testimony of two or more witnesses established that "Cramer met Thiel and Kerling on the occasions and at the places charged; that they drank together, and that they engaged long and earnestly in conversation", but "There was no proof by two witnesses of what they said, or in what language they conversed; no showing that Cramer gave them any information whatever of value to their mission, or that he had any to give; no showing of any effort at secrecy, they having met in public places, and no evidence that Cramer furnished them shelter, sustenance, or supplies, or that he gave them encouragement or counsel, or even paid for their drinks". The ruling (in favor of the defendant) focused on the fact that what was suffiently witnessed was not treasonous (drinks and conversation are not overt acts of treason). The court assigns some significance to the testimony of a single witness Kopp, stating that

To the extent that his conviction rests upon such evidence, and it does to an unknown but considerable extent, it rests upon the uncorroborated testimony of one witness not without strong emotional interest in the drama of which Cramer's trial was a part.

The fact that the evidence was uncorroborated is dispositive in this case.

There has not been a case where a conviction was supported only by circumstantial evidence, and the language of the Constitution plus the meaning of "testimony of a witness" is clear enough that it would be a major break with legal tradition to say that circumstantial evidence can substitute for direct evidence (testimony).

A video recording cannot testify, only a person can testify. A person can testify that they watched a video, but they cannot testify that they directly witnessed defendant making a certain statement. Rather they can testify that they inferred from watching the video that defendant made a statement. This is not to say that some SCOTUS could not find a path for conviction based on circumstantial evidence, but that would be a significant break from existing tradition.

  • So recordings are considered circumstantial evidence, not direct evidence? Weird, but makes sense from when the law was written. – sharur Apr 29 at 19:15

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