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Alice's grandpa Greg is on trial. Alice's testimony is crucial to get Greg convicted. But, for some reason or another, Alice doesn't want to appear in court as a witness in front of Greg to badmouth him. Is Alice allowed to give private testimony to the jury/judge without Greg finding out about it?

If you want a bunch of example reasons for Alice to want to do so:

  1. She loves her grandpa and doesn't want to badmouth him to his face.
  2. She feels threatened by her grandpa and wants to remain anonymous to him while still giving testimony.
  3. She was raped by grandpa Greg and can't mentally bear to even look at him.

As a follow-up question, does Alice electing for some sort of "private" testimony weaken the case against Greg in any way?

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    Even if such testimony were allowed, it would be almost useless. Greg might have a completely innocent explanation for Alice's testimony or evidence that conclusively shows that it's mistaken, so such testimony could never be convincing. What makes testimony convincing is that it's been tested by an adversarial process. How can Greg's defense introduce evidence that would show that this is false or misleading if they don't know it exists? Commented Nov 6, 2022 at 22:02
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    @MichaelHardy I think what the OP is saying is that Alice tells the police something that creates a situation that rises to the level of probable cause, which is a far lower standard. For an arrest warrant, hearsay is allowed, so a situation may be Alice told a parent something happened, who then told the police.
    – user71659
    Commented Nov 7, 2022 at 0:42
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    @user71659 The question uses the terms "on trial", "testimony", "convicted." "in court", "as a witness in front of Greg", and "the jury/judge". If the OP actually meant a report to the police to enable an arrest, this is a lot of mistaken terminology, while if the OP actually meant a court trial i is all correct. I think we must assume that the OP meant what s/he siud until we are told differently by the OP. Commented Nov 7, 2022 at 12:50
  • I have a question both for the asker and for those answering - would an Affidavit work? It may not preserve her anonymity, but it would mean not having to appear in-person in court.
    – Zibbobz
    Commented Nov 8, 2022 at 14:41
  • @Zibbobz no, an affidavit can’t be used to circumvent the Bill of Rights.
    – Sneftel
    Commented Nov 8, 2022 at 18:49

4 Answers 4

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The Sixth Amendment gives a defendant in a criminal case the right to “confront one’s accuser”, and the Supreme Court has taken a notably originalist view of this right, holding that this means face-to-face cross examination under virtually all circumstances. While there are some small exceptions related to minors and to witnesses who became unavoidably absent after giving a sworn statement (none of which could apply to Alice), and while the Supreme Court hasn’t explicitly ruled out cross examination over videoconference, the idea of anonymous testimony in a criminal case is unthinkable. Part of an effective cross examination is arguing why the witness’s testimony might be unreliable, and a defendant who didn’t know whose testimony it was would be hamstrung at that.

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    The question I have is that if it's sufficient for the defence counsel to be aware, and not the defendant themselves? Commented Nov 7, 2022 at 0:13
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    @Gregory Currie: Given that the defendant can self-represent in nearly all cases that doesn't seem like a reasonable mechanism. Even the rare cases where confrontation has been denied (mostly very young sex abuse victims, as I understand it) the defendant is still going to know who the witness actually is. Commented Nov 7, 2022 at 0:22
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    @GregoryCurrie I don't know of any situation in which one's attorney is aware of some information pertaining to their clients case, that the client isn't legally and ethically allowed to know. If a client asks their attorney a question they have a duty and responsibility to be open and honest with the client.
    – BruceWayne
    Commented Nov 7, 2022 at 18:35
  • @BruceWayne: Considering McCoy v. Louisiana, I find it hard to believe that the defense attorney can be given such a level of autonomy (and so I agree with you, such a scenario is probably impossible). Sure, the attorney can make moment-to-moment decisions about what arguments to make during the trial, but they cannot take total responsibility for their client's overall defense strategy. There are decisions that are reserved for the client alone, and the client cannot make such decisions without complete knowledge of the evidence against them.
    – Kevin
    Commented Nov 7, 2022 at 19:25
  • To expand further: part of the prosecution's job is to explain to the jury why this particular witness is credible and should be believed, and their identity is a huge part of that. An anonymous witness means the jury just has to blindly trust the prosecutor. That opens the door for all sorts of abuse and is the last thing you want in a fair trial.
    – bta
    Commented Nov 7, 2022 at 20:10
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Is Alice allowed to give private testimony to the jury/judge without Greg finding out about it?

NO, but there are mechanisms to safeguard Alice and her evidence from, for example, intimidation from Greg or people in the court's public gallery.

Article 6 of The European Convention on Human Rights (ECHR), which is incorporated in to law under the Human Rights Act 1998, requires everyone to be entitled to a fair trial, including, at Art6 (1)(3)(d) Greg being able...

...to examine or have examined witnesses against him ...

Note, it says "examine" not "directly question face-to-face across a busy courtroom".

Alice, more than likely, will be eligible for the assistance of Special Measures under the Youth Justice and Criminal Evidence Act 1999 due to...

  • ...her age or incapacity section16 (colloquially referred to as a "vulnerable witness")

  • ...her fear or distress about testifying section 17colloquially referred to as an "intimidated witness")

  • ...she is a victim of a sexual offence section 22A

These Special Measures are:

  • Screening witness from accused. (available for vulnerable and intimidated witnesses): screens may be made available to shield the witness from the defendant, section 23

  • Evidence by live link (available for vulnerable and intimidated witnesses): a live link enables the witness to give evidence during the trial from outside the court through a visual link to the courtroom. The witness may be accommodated either within the court building or in a suitable location outside the court, section 24

  • Evidence given in private (available for some vulnerable and intimidated witnesses): exclusion from the court of members of the public and the press (except for one named person to represent the press) in cases involving sexual offences or intimidation by someone other than the accused. section 25 NB s.25(2) states that Greg and his legal team cannot be excluded.

  • removal of wigs and gowns by judges and barristers (available for vulnerable and intimidated witnesses at the Crown Court), ssection 26

  • Video recorded evidence in chief (available for vulnerable and intimidated witnesses): a visual recorded interview with a vulnerable or intimidated witness before the trial may be admitted by the court as the witness's evidence-in-chief, for adult complainants in sexual offence trials in the Crown Court. A visual recorded interview will be automatically admissible, upon application, unless this would not be in the interests of justice or would not maximise the quality of the complainant's evidence. There are also relaxed restrictions on a witness giving additional evidence in chief after the witness's visual recorded interview has been admitted section 27

  • Video recorded cross-examination or re-examination pre-trial. Visual recorded examination of the witness recorded at an earlier point in the process than the trial may be admitted by the court as the witness’s cross-examination and re-examination evidence in the Crown Court. This can only be applied for where there has been a s.27 direction for a visual recorded interview to be admitted as evidence and when a victim or a witness meets the vulnerable criteria. A visual recorded examination will be automatically admissible, upon application, unless this would not be in the interests of justice or would not maximise the quality of the complainant’s evidence, section 28

  • examination of the witness through an intermediary (only available for vulnerable witnesses): an intermediary may be appointed by the court to assist the witness to give their evidence at court. They can also provide communication assistance in the investigation stage - approval for admission of evidence so taken is then sought retrospectively. The intermediary is allowed to explain questions or answers so far as is necessary to enable them to be understood by the witness or the questioner but without changing the substance of the evidence section 29

  • aids to communication (only available for vulnerable witnesses): aids to communication may be permitted to enable a witness to give best evidence whether through a communicator or interpreter, or through a communication aid or technique, provided that the communication can be independently verified and understood by the court, section 30

(Sourced from the CPS, with some slight edits)

As a follow-up question, does Alice electing for some sort of "private" testimony weaken the case against Greg in any way?

NO - well it shouldn't but juries can be fickle and unpredictable at times - as the judge is required under section 32 of the 1999 Act to give a Warning the jury:

Where on a trial on indictment with a jury evidence has been given in accordance with a special measures direction, the judge must give the jury such warning (if any) as the judge considers necessary to ensure that the fact that the direction was given in relation to the witness does not prejudice the accused.

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  • I can't see the edit history here, but at least as of now the question has the United States tag....
    – Alan
    Commented Nov 6, 2022 at 17:26
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    @Alan The question has always been tagged USA, but I began my answer with the E&W tag because "Even if you supply a jurisdiction tag, we expect and encourage answers dealing with other jurisdictions – while it might not answer your question directly, your question will be here for others who may be from those jurisdictions. If you do this, please tag your answer using the tag markdown: [tag: some-tag]" as per the Help centre
    – user35069
    Commented Nov 6, 2022 at 17:30
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    Ahh, check. I really should read the customs of each stackexchange I visit more carefully! Thanks.
    – Alan
    Commented Nov 6, 2022 at 17:49
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The complainant will not be able to be anonymous to the accused. They will be named in the charging document. If they testify at trial, even via one of the protective methods mentioned below, they will also be subject to cross-examination by the defence.

Protective mechanisms

Parliament has said it "wishes to encourage the participation of witnesses in the criminal justice system through the use of protective measures that seek to facilitate the participation of children and other vulnerable witnesses while ensuring that the rights of accused persons are respected." An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, Bill C-2, 2005.

Judges may allow a "video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of" to be admitted as evidence, when the complainant or other witness was under eighteen years of age at the time of the alleged offence. Criminal Code, s. 715.1.

A judge may also allow a complainant or other witness to testify from beind a screen or via closed-circuit television, and with a support person, in order to facilitate their testimony. Criminal Code, s. 486.

These approaches can also be combined, in that a complainant or other witness may testify via closed-circuit television or behind a screen in order to adopt the contents of the previous video-recorded interview.

No adverse inference

The Criminal Code states that no adverse inference may be drawn from the fact that testimony is given from behind a screen or closed-circuit television.

Examples

Many examples are listed here.

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Anonymity is not possible, but there are various protection mechanisms for children:

  • Only the judge may question the child. Generally, neither defense nor prosecution are allowed to directly question the child.

  • It's easier to exclude the defendant, the public, or both, from the trial. (This is also possible in some cases with adult witnesses, but much harder).

  • Legal guardians may always accompany the children (but may not speak in their place)

It should be noted that, in Germany, Juries in the American/British sense do not exist, so excluding the public and the defendant results in a very small amount of people present.

As the defense attorneys will still be present, even if the defendant themselves is excluded, one should reasonably assume the attorney will tell the defendant about the testimony later.

So your questions 1, 2, and 3 are all covered by "excluding the defendant", but the headline tag "anonymity" is not.

Source (in German): https://www.service-bw.de/zufi/lebenslagen/5001004

Edit: responding to the comment about the defendant defending themselves:

This is possible, but only under certain circumstances, see https://www.gesetze-im-internet.de/stpo/__140.html (again, in German). Basically only in cases where the expected penalty is low (monetary or jail for less than one year, which is put on probation in 99% of all cases). Which are probably not cases where the testimony of a child makes that much of a difference; any cases of child abuse will probably fail the "jail less than one year" condition.

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