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Say a company is being sued for distributing confidential information, like carelessly releasing the medical records of their employees. In court, could a plaintiff show examples of these medical records as evidence? Wouldn't they then be committing the same crime as the company was as they are not showing confidential information?

Another example, say there is a court case about illegal pornography (people in it weren't over 18). Since viewing it and distributing it is illegal, aren't the people who are viewing it as evidence in court breaking the law?

  • If the defendants have distributed confidential information, is it confidential anymore? – DJohnM Feb 29 '16 at 6:50
  • @DJohnM Possibly. There were reports of government employees that weren't allowed to use their government computers to look at the media reports of Snowden leaks, because their computers would then contain "classified information". – D M Mar 8 '18 at 16:40
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It depends what statute is protecting the records. Under Florida law, for example, there are exceptions allowing medical records to be shared as part of legal proceedings.

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In England and Wales, it would be legal to show confidential or even classified documents in evidence. The court may decide to go in camera (literally "in a room", in practice: "in secret"), and issue injunctions prohibiting the reproduction of the evidence.

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In US v. Cunningham, the prosecution played child porn for the jury. However, the relevant statute (18 USC 2252(a)(2)) criminalizes receiving, transporting, shipping, distributing, or accesses with intent to view, not simple seeing. Even if visual perception were illegal, the trial court held that it was legal to introduce the material in evidence, which implies that jurors do not have the option of leaving when the film starts. If the court orders (forces, requires) you to do something, you can't be prosecuted for complying with the law.

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Consider reading My Country Versus Me by former Los Alamos nuclear physicist Wen Ho Lee. Long story short, he was an American nuclear scientist, born in Taiwan, who was accused of giving the schematics of the W-88 warhead to the People's Republic of China. He had done no such thing; but he nevertheless was forced to plead guilty to one felony count of mishandling classified information (as he has once worked from home while under a tight deadline) and released for time served. The federal judge presiding over the case actually apologized to him during sentencing due to the cruel conditions of his solitary confinement in custody, and the stress it imposed on his family.

The way this pertains to your question is that, believe it or not, a suspected terrorist or nuclear spy does, in fact, have a right to have access to classified information in mounting a legal defense. Not him, personally, of course, but his legal counsel has the authority to request any documentation that might be pertinent. Because of the sensitivity of the information, the counsel has the legal responsibility to withhold the classified information they receive from their own client. How that could possibly be enforced, I have no idea, as attorney-client conversations are privileged; but a scrupulous attorney is bound by his/her professional ethics to use classified data to defend the client, while at the same time withholding that data from the client.

Not for nothing, the government had to construct a sound-proofed conference room in the courthouse, for Lee and his lawyers. Not so that Lee's lawyers could divulge classified data to suspected nuclear terrorist Lee, but so that Lee could safely and lawfully discuss nuclear weapons with his lawyers. He was lucky enough to have pro bono representation from a very elite legal team; the same team that had represented Oliver North, if memory serves.

Given the strange and delicate balancing act of protecting the suspect's due process, and protecting sensitive state secrets from that very same suspect... that is why security hawks in the U.S. oppose trying terrorist suspects in civilian criminal court proceedings (see Lindsay Graham: "you don't get a lawyer!). That delicate balancing act requires society to place a great deal of trust in the suspect's legal counsel. Not so difficult when the lawyers in question is a respected, prestigious firm with experience in national security issues, but could be a bit more controversial if the court-appointed lawyers were, say, native Arabic speakers with a little bit too much, culturally, in common with the defendant for the folks watching the 6-o-clock news to be comfortable with.

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    Can you explain how your answer has anything to do with the the question which is about actual law, as opposed to a personal opinion about how you'd like the law to be? – user6726 Aug 10 '16 at 4:35
  • @user6726: I don't understand your comment. The answer appears to be about the actual law (or are you saying the answer is incorrect? If so, where.) – Martin Bonner supports Monica Aug 10 '16 at 7:16

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