united-states privacy court trial witnesses
Are witnesses allowed to give private testimonies?
<p>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?</p>
<p>If you want a bunch of example reasons for Alice to want to do so:</p>
<ol>
<li>She loves her grandpa and doesn't want to badmouth him to his face.</li>
<li>She feels threatened by her grandpa and wants to remain anonymous to him while still giving testimony.</li>
<li>She was raped by grandpa Greg and can't mentally bear to even look at him.</li>
</ol>
<p>As a follow-up question, does Alice electing for some sort of &quot;private&quot; testimony weaken the case against Greg in any way?</p>

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<p>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 <em>anonymous</em> 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.</p>

<p><strong>Is Alice allowed to give private testimony to the jury/judge without Greg finding out about it?</strong></p>
<p><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" aria-label="show questions tagged &#39;england-and-wales&#39;" rel="tag" aria-labelledby="england-and-wales-container">england-and-wales</a></p>
<p><strong>NO</strong>, but there are mechanisms to safeguard Alice and her evidence from, for example, intimidation from Greg or people in the court's public gallery.</p>
<p>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 <a href="https://www.legislation.gov.uk/ukpga/1998/42/schedule/1/part/I/chapter/5?timeline=false" rel="noreferrer">Art6 (1)(3)(d)</a> Greg being able...</p>
<blockquote>
<p>...to examine or have examined witnesses against him ...</p>
</blockquote>
<p>Note, it says &quot;examine&quot; not &quot;directly question face-to-face across a busy courtroom&quot;.</p>
<p>Alice, more than likely, will be eligible for the assistance of <strong>Special Measures</strong> under the Youth Justice and Criminal Evidence Act 1999 due to...</p>
<ul>
<li><p>...her age or incapacity <a href="https://www.legislation.gov.uk/ukpga/1999/23/section/16?timeline=false" rel="noreferrer">section16</a> (colloquially referred to as a &quot;vulnerable witness&quot;)</p>
</li>
<li><p>...her fear or distress about testifying <a href="https://www.legislation.gov.uk/ukpga/1999/23/section/17?timeline=false" rel="noreferrer">section 17</a>colloquially referred to as an &quot;intimidated witness&quot;)</p>
</li>
<li><p>...she is a victim of a sexual offence <a href="https://www.legislation.gov.uk/ukpga/1999/23/section/22A?timeline=false" rel="noreferrer">section 22A</a></p>
</li>
</ul>
<p>These Special Measures are:</p>
<ul>
<li><p>Screening witness from accused. (available for vulnerable and intimidated witnesses): screens may be made available to shield the witness from the defendant, <a href="https://www.legislation.gov.uk/ukpga/1999/23/section/23?timeline=false" rel="noreferrer">section 23</a></p>
</li>
<li><p>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, <a href="https://www.legislation.gov.uk/ukpga/1999/23/section/24?timeline=false" rel="noreferrer">section 24</a></p>
</li>
<li><p>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. <a href="https://www.legislation.gov.uk/ukpga/1999/23/section/25?timeline=false" rel="noreferrer">section 25</a> <strong>NB s.25(2) states that Greg and his legal team cannot be excluded.</strong></p>
</li>
<li><p>removal of wigs and gowns by judges and barristers (available for vulnerable and intimidated witnesses at the Crown Court), <a href="https://www.legislation.gov.uk/ukpga/1999/23/section/26?timeline=false" rel="noreferrer">ssection 26</a></p>
</li>
<li><p>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 <a href="https://www.legislation.gov.uk/ukpga/1999/23/section/27?timeline=false" rel="noreferrer">section 27</a></p>
</li>
<li><p>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, <a href="https://www.legislation.gov.uk/ukpga/1999/23/section/28?timeline=false" rel="noreferrer">section 28</a></p>
</li>
<li><p>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  <a href="https://www.legislation.gov.uk/ukpga/1999/23/section/29?timeline=false" rel="noreferrer">section 29</a></p>
</li>
<li><p>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, <a href="https://www.legislation.gov.uk/ukpga/1999/23/section/30?timeline=false" rel="noreferrer">section 30</a></p>
</li>
</ul>
<p>(Sourced from the <a href="https://www.cps.gov.uk/legal-guidance/special-measures" rel="noreferrer">CPS</a>, with some slight edits)</p>
<p><strong>As a follow-up question, does Alice electing for some sort of &quot;private&quot; testimony weaken the case against Greg in any way?</strong></p>
<p><strong>NO</strong> - well it shouldn't but juries can be fickle and unpredictable at times - as the judge is required under <a href="https://www.legislation.gov.uk/ukpga/1999/23/section/32?timeline=false" rel="noreferrer">section 32</a> of the 1999 Act to give a <em>Warning</em> the jury:</p>
<blockquote>
<p>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 <strong>does not prejudice the accused</strong>.</p>
</blockquote>

<p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="canada-container">canada</a></p>
<p>The complainant will <strong>not</strong> 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.</p>
<h3>Protective mechanisms</h3>
<p>Parliament has said it &quot;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.&quot; <em>An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act</em>, Bill C-2, 2005.</p>
<p>Judges may allow a &quot;video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of&quot; to be admitted as evidence, when the complainant or other witness was under eighteen years of age at the time of the alleged offence. <em>Criminal Code</em>, s. 715.1.</p>
<p>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. <em>Criminal Code</em>, s. 486.</p>
<p>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.</p>
<h3>No adverse inference</h3>
<p>The <em>Criminal Code</em> states that no adverse inference may be drawn from the fact that testimony is given from behind a screen or closed-circuit television.</p>
<h3>Examples</h3>
<p>Many examples are listed <a href="https://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/rr10_vic3/p2_22.html" rel="noreferrer">here</a>.</p>

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<p>Anonymity is not possible, but there are various protection mechanisms for children:</p>
<ul>
<li><p>Only the judge may question the child. Generally, neither defense nor prosecution are allowed to directly question the child.</p>
</li>
<li><p>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).</p>
</li>
<li><p>Legal guardians may always accompany the children (but may not speak in their place)</p>
</li>
</ul>
<p>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.</p>
<p>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.</p>
<p>So your questions 1, 2, and 3 are all covered by &quot;excluding the defendant&quot;, but the headline tag &quot;anonymity&quot; is not.</p>
<p>Source (in German): <a href="https://www.service-bw.de/zufi/lebenslagen/5001004" rel="noreferrer">https://www.service-bw.de/zufi/lebenslagen/5001004</a></p>
<p>Edit: responding to the comment about the defendant defending themselves:</p>
<p>This is possible, but only under certain circumstances, see <a href="https://www.gesetze-im-internet.de/stpo/__140.html" rel="noreferrer">https://www.gesetze-im-internet.de/stpo/__140.html</a> (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 &quot;jail less than one year&quot; condition.</p>
