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Report No. 198

Section 16-3-1550 (E) (SC)(Ann)(Supplement 1999) provides that:

"the circuit or family court must treat sensitively witnesses who are very young, elderly, handicapped or who have special needs, by using closed or taped sessions when appropriate. The prosecuting agency or defence attorney must notify the Court when a victim or witness deserves special consideration."

The trial Court was however directed to go into the matter and give specific findings to support of the closed circuit procedure.

In the case of Iowa v. James Terrance Mosley (15.5.2002) decided by the Court of Appeals, Iowa, the Court confirmed the use of close-circuit TV for receiving the evidence of a eight-year victim of child abuse, on the ground that if the witness had to face the accused, she would have suffered trauma.

6.7.2 A summary of US law by Jurist Nora V. Demleitner: (1998) 46 Amer J of Comp. Law (Suppl) 641

In an article on 'Witness Protection in Criminal Cases: Anonymity, Disguise or other Options' by Nora V. Demleitner (1998)(46 American Journal of Comparative Law, (Suppl.) p. 641) there is a very detailed analysis of the subject. The article refers to some of the cases referred to above and finally divides witnesses into three categories: (a) undercoveragents; (b) informants and (c) witnesses covered by witness protection programmes. We shall try to summarise what the author has stated in this behalf.

(a) In the case of undercover agents, a witness's house address serves to allow the defence to identify her with her environment so as to allow for a meaningful cross examination. Some Courts have held that with respect to undercover agents, this goal can be accomplished differentl.- it might be sufficient to disclose their occupational background and circumstances (United States v. Alston (1972) 460 F.2d 48 (5th Circuit) Certi. Denied 409 US 871 (1972). Police agents, even if working undercover, are subject to supervision and constant monitoring by their superiors. The supervisors can testify as to the agent's general truthfulness. This exception does not necessarily extend to informants since they tend to be subject to less supervision.

(b) Informers have 'privilege' for anonymity if they had started the investigation but did not further it. This encourages witnesses to come forward in exchange for anonymity. A police officer may testify as to the course of investigation which was initiated by the informant, without revealing the informant's identity. However, in Roviaro v. United States: (1957) 353 U.S. 53, it was held by the US Supreme Court that, if the evidence as to the original informant's identity is 'essential' or even 'relevant and helpful', it must be produced.

Any disclosure requires the 'balancing the public interest in protecting the flow of information against the individual's right to prepare his defense'. The Circuit Court of Appeals, in United States v. Ellis (1972) 468 F. 2d. 638, affirmed a trial Judge's decision not to force an informant to reveal his name and address based on his safety claims and the marginal importance of his testimony.

This ruling was relied upon in other cases to say that even in case other than those of undercover agent, the accused had no absolute right of access to the witness's name and address. In State v. Hassberger: (1977) 350 So. 2d 1 (Fla) the Florida Supreme Court, required the real name of the witness to be disclosed at trial. US Courts are more likely to give protection of anonymity without revealing name and place of residence so far as undercover agents and victim-witnesses are concerned while in the case of others, the views appear to be not uniform.

(c) So far as witnesses covered by witness protection programmes are concerned or where an undercover agent adopts a 'work' name, the disclosure of the 'current name' of a witness would either violate the purpose of the 'witness protection programme' or unnecessarily endanger the undercover agents who testify under their actual but not their 'work' name. Therefore numerous courts in the US have permitted non-disclosure as long as sufficient other evidence was available for effective cross-examination.



Witness Identity Protection and Witness Protection Programmes Back




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