Silent witness rule

The silent witness rule is the use of "substitutions" when referring to sensitive information in the United States open courtroom jury trial system. The phrase was first used in US v. Zettl, in 1987. An example of a substitution method is the use of code-words on a "key card", to which witnesses and the jury would refer during the trial, but which the public would not have access to. The rule is an evidentiary doctrine that tries to balance the state secrets privilege with the bill of rights (especially the right of the accused to a public trial, and the right to due process). In practice the rule has been rarely used and often challenged by judges and civil rights advocates. Its use remains controversial.

The conflict between the open court and state secrets privilege goes back to at least 1802 and Marbury v. Madison. Under the privilege, the government can dismiss any charges against it by claiming that important state secrets would be revealed at trial. In 1980 the Classified Information Procedures Act (CIPA) was passed as an attempt to deal with the conflict, especially the problem of graymail. The Silent Witness Rule (SWR) is a further attempt.

By 2011 the government had only attempted to use the rule a handful of times, often unsuccessfully:

In United States v. Rosen, in 2007 (the AIPAC Espionage Act case), the rule was used for the first real time. The government tried to use the rule extensively at first; the court rejected the idea.

Rosen argued that the rule was invalid because he felt it did not match CIPA requirements, and that the government had said CIPA was the only way to deal with classified information at a trial. The judge for the trial, T. S. Ellis III, disagreed that CIPA was the only acceptable way to deal with classified information. He also felt the SWR was not really part of CIPA either.

Ellis created a four-part "fairness test" to decide whether the SWR was fair. His test was a combination of the CIPA fairness test and the Press-Enterprise Co. v. Superior Court fairness test. Ellis' theory was based on the idea that the SWR effectively "closes a trial" from the public by disclosing different sets of evidence to the court and to the public. The four parts of his test were as follows:

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