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Report No. 198

(B) Several circuit Courts preferred to rely on the observations of White J in his concurring judgment, to hold that witness identity could be protected.

The exception referred to by White J in Smith, where the witness's safety is likely to be endangered if his identity is disclose.- has been applied by the circuit and trial courts in US in several cases. See US v. Saletko: (1971) 452. F.2d. 193 (7th Circuit) (contained in (1972) 405 US 1040: and State v. Hassberger: (1977) 350 S. 2d 1 (Flo) US v. Cosby (1974) 500 F. 2d 405 (9th circuit)

In United States v. Palermo: (1969) 410 F 2d 468 (7th circuit), the circuit Court, relying upon Justice White's observations in Alford, held that the defendant had no absolute right to discover the names and addresses of witnesses if a threat to their personal safety existed. However, where the witness has shifted from his location and is not likely to go back, the Court would disclose the place of his original residence, so that cross examination is effective.

Other Courts have affirmed non-disclosure orders independent of whether the threat to the witness's safety emanated from the defendant or from unknown third party. In Clark v. Rickets (1991) 958. F 2d. 851 (9 th circuit) (cert denied (1993) 506 US 838) the witness was a Drug Enforcement Agency informant. Threats against his life were made in the city where he lived.

Even earlier, in United States v. Rich (1958) F.2d. 415 the 2nd Circuit held that withholding the address of a witness because of personal danger to him/her was acceptable. In United States v. Crovedi (1972) 467. F.2d 1032 (7th Circuit), the Court of Appeal upheld a ruling that the new identities and location of two witnesses be kept from the defence and the public at large.

The witnesses were given immunity in exchange for their testimony against a co-conspirator. In order to guarantee their safety, the government placed them and their families in witness protection. The Court ruled that there was no abuse of discretion in a determination that these witnesses had reason to fear that disclosure of their present identities would endanger themselves and their families.

In United States v. Rangel 534 F.2d 147 decided by the 9th Circuit, a similar protection was granted to witnesses who feared their safety. The Court did not establish a rigid rule of disclosure (of the true name, home address and phone number of informants), but rather discussed disclosure against a background of factors weighing conversely, such as personal safety of the witness.

The 9th Circuit, in United States v. Ellis (1972) 468. F.2d 638, upheld the right to suppress the real name, residence and occupation of under cover police officers.



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