TRIALS BY FIRE - Belfer Center for Science and International Affairs

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TRIALS BY FIRE - Belfer Center for Science and International Affairs

tigations and the fact that information in terrorism cases is often classified,prosecutors are confronted with significant evidence-related challenges duringthe proceedings. As such, Congress and the courts have codified into lawone special measure to make the process easier.The Classified Information Procedures Act (CIPA) 342 attempts to “protect nationalsecurity information from improper or unnecessary disclosure…whileat the same time balancing the defendant’s fundamental right to a fair trial.” 343CIPA permits prosecutors to redact sensitive information from discovery documentsunder the supervision of a trial judge. Prosecutors must then eithersubmit a summary of the deleted information or substitute a statement admittingrelevant facts that the information would tend to prove. In addition, CIPAprovides specific safeguards for handling classified documents.Difficulties with Going to TrialEvidentiary problems still exist during trial. Indeed, the challenge of handlingevidence in terrorism cases is one of the main drivers behind the argumentthat the US needs a national security court or specialized military commissions.These problems include:Miranda Difficulties: There are significant unresolved questions over the Mirandaprotections for suspected terrorists captured overseas. In United Statesv. Bin Laden, 344 a federal judge in the Southern District of New York held thatterrorism suspects interrogated abroad by US law enforcement officials were entitledto Miranda warnings. If such warnings were not issued, according to thejudge, incriminating statements made by defendants could be excluded at trial.Chain of Custody Issues: The prosecution of terrorist suspects has the potentialto raise chain of custody problems, particularly if the evidence is broughtfrom overseas. As the American Bar Association recently pointed out, “[i]nterrorism cases, it often proves difficult, if not impossible, to observe the mandatedlevel of protection of evidence.” 345 In other words, the careful proceduresused by domestic law enforcement agents to preserve the chain of custody aresometimes impossible to adhere to when operating in foreign countries, especiallyin conflict zones. However, “gaps in the chain [of custody] normally goto the weight of the evidence rather than its admissibility.” 346 Thus, problems inthe chain of custody may lead to an assessment that the evidence is potentiallyunreliable, but does not normally result in its being thrown out.Belfer Center for Science and International Affairs | Harvard Kennedy School123

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