A witness (former gov&#39;t agent) knows top secret USA information. Can a court compel them to reveal the informaton? A former US federal government employee knows information that was classified as top secret by the federal government. This information is relevant to a case. They were called to testify before the court. This person is not a defendant. I believe the 5th amendment would be a valid defense since the witness would be violating the Espionage Act, but claiming the 5th on the witness bench would probably ruin the witness' credibility before the jury. Therefore, we may safely exclude &quot;pleading the 5th&quot; on the answers. Can a court compel the witness to disclose the information? Is there any lawful recourse for the witness (to keep confidentiality) other than the 5th amendment?
The court should not compel the witness to disclose the information because there is a state secrets privilege which bars disclosure of governmental secrets in litigation. An interlocutory appeal of some sort would generally be permitted in cases where the privilege is not honored, and typically, the federal government would become an intervenor in the litigation with respect to that issue. Not infrequently, the state secrets privilege will prevent a matter from being litigated at all, rather than merely preventing the admission of evidence, or requiring that the matter be resolved in a sealed secret bench trial. For example, spies cannot sue the government for not being paid for spying as a result of the state secrets privilege. Similarly, someone who suffers a personal injury arising from a covert operation can not sue the government for that injury.
united-states Generally, a witness cannot object to a question on the grounds that it fails to conform to a rule of evidence (e.g. hearsay). A witness can refuse to testify on a matter either due to the 5th Amendment privilege against self-incrimination, or on the grounds that some other privilege (e.g. attorney-client, clergy confession, spousal) applies. A witness can also say that they don't understand the question as phrased (either because it is complicated or because it contains terminology or concepts that the witness doesn't understand), or that the witness didn't hear the question, or that the witness forgot what the question was while the lawyers and judges were discussing whether it could be asked. This often results in the question being restated or rephrased. A witness may also answer a question by stating that there is no answer to the question as it is based upon a false premise (e.g. &quot;on which day of the week did you beat your wife?&quot;). And, if true, a witness can properly answer that they don't know the answer, either because they never knew or because they don't currently recall the answer.
The Sixth Amendment to the US Constitution guarantees assistance of counsel for the accused in all criminal prosecutions. The Fifth Amendment protects a person from being forced to self-incriminate. Taken together, in Miranda v. Arizona, the Supreme Court interpreted this to mean that police cannot continue interrogation after you have requested an attorney. Laughter is actually not a violation of your rights, the violation would come from continuing to interrogate you, or in prohibiting you from contacting your attorney or not providing an attorney if you cannot afford one (via the public defender's office).
The Miranda warning only has to be given to a person being interrogated in custody, and on the premise that the wife is not in custody, the police do not need to read her the warning. Therefore, anything she says can be used against her, or somebody else, unless there is a separate reason why the statement could not be used. The wife may invoke the spousal testimony privilege, in which case she cannot be compelled to testify against the husband. The officer could theoretically testify that the wife said "I washed blood out of his clothing", but this is an assertion made by an out-of-court declarant to prove the truth of the question at hand, i.e. hearsay. There are numerous exceptions to the definition so that in some cases, the statement would not be hearsay. If the wife refuses to testify, that cuts out half of the exceptions, but maybe the wife is a co-conspirator.
This sort of thing is very common. Particularly in the tax context, the IRS seeks to compel lawyers to reveal their clients all the time, and the courts are pretty much all in agreement that attorney-client privilege generally does not protect the identity of a client. For example: United States v. Goldberger &amp; Dubin, P.C., 935 F.2d 501, 505 (2d Cir. 1991) United States v. Servin, No. 17-1371 (3d Cir. Feb. 1, 2018) Matter of Grand Jury Empanelled Feb. 14, 1978, 603 F.2d 469 (3d Cir. 1979) In re Grand Jury Proceedings, 680 F.2d 1026 (5th Cir. 1982) In re Grand Jury Investigation No. 83-2-35, 723 F.2d 447 (6th Cir. 1983) In re Grand Jury Witness (Salas), 695 F.2d 359, 361 (9th Cir.1982) More typically, the disclosure happens in front of the grand jury or in response to a subpoena, but it also can happen in open court like it did with Cohen. That happened in the second Third Circuit case above, where federal officials were investigating the source of 42,000 pounds of pot they'd found on a boat off the coast of New Jersey. There were disputes as to who owned the ship -- and might therefore be liable for the drugs -- so the DOJ needed to nail that down. There was some reason to believe that Attorney Markowitz was involved in transactions that would shed light on the ownership, so they subpoenaed Markowitz to appear before the grand jury. He showed up and refused to answer basically anything or produce any records, so the prosecutors asked a judge for a ruling on whether he was permitted to withhold his clients' identities based on attorney-client privilege. This is where the case starts to look sort of like the Cohen situation. The attorney was asserting privilege, and the judge said he would need to review the records in camera to see if the privilege applied. But he couldn't say if attorney-client privilege applies if he didn't know who the clients were, so he ordered him to identify his clients. He refused, so the judge told him to take a moment and think about it before he held him in contempt. Unlike Cohen's attorneys, the guy still refused, so the judge held him in contempt and ordered him to jail. On appeal, the Third Circuit agreed that attorney-client privilege generally does not protect the identity of a client. There are exceptions when there's already enough information known about the client that revealing the identity would expose them to criminal prosecution, but that was not the case here. The court still reversed the contempt finding, holding that Markowitz had a Fifth Amendment right not to identify the clients because doing so might expose him to criminal prosecution, but that element doesn't seem to exist in the Cohen situation. (Interesting side-note: The government was represented in this case by a 29-year-old Samuel Alito.) The weird thing about this, to me, is that the courts have a procedure to avoid making the disclosure public: "A well recognized means for an attorney to demonstrate the existence of an exception to the general rule, while simultaneously preserving confidentiality of the identity of his client, is to move the court for an in camera ex parte hearing." In re Grand Jury Investigation No. 83-2-35, 723 F.2d 447, 454 (6th Cir. 1983). Why Cohen's guys didn't go that route is beyond me.
There is, of course, no way to tell how the Court would deal with such a case today. This is not a frequently litigated issue, with lots of case law. I note that in the case you link to, the court limited the statute to false claims made "with a fraudulent purpose". This normally means that the claimant is attempting to secure an improper financial or materiel advantage. In the United States v. Tandaric case, the person convicted had falsely claimed to be a US Citizen on an employment application for a company which did not hire non-citizens, and so gained a job through this false statement. He could have been convicted of ordinary Fraud. The court has not been as protective of Fraud under the First Amendment as it has been of speech generally, or even of false but non-fraudulent speech. I am not at all sure if the court would overturn this law in a similar case today. Edit: In the United States v. Achtner case, the court wrote: But we agree with the District Court that the representation of citizenship must still be made to a person having some right to inquire or adequate reason for ascertaining a defendant's citizenship; it is not to be assumed that so severe a penalty is intended for words spoken as a mere boast or jest or to stop the prying of some busybody, ... This seems to dispose of the example in the question of a neighbor who is merly inquiring as to the character of the area, or perhaps from simple curiosity, and a false speaker who seems to get no direct benefit or advantage from the falsehood. Both linked cases involved false statements made to employers or potential employees, during wartime at that, with the false speaker's employment apparently at stake.
It is like an affidavit of sort, sworn out without the jurat and not before a notary. The swearing out of a complaint or rebutting evidence in all Federal civil matters (some states allow for the same) must contain an affidavit or an "unsworn declaration" that swears out the facts to be true and accurate, even though not notarized, and is based on fact and not supposition. It is subject to the same penalties of perjury if one lies as if you swear on a bible and testify in court or on a "sworn" affidavit. Affidavits need not be sworn before God, or on a bible. You have a right to just "affirm" that you will tell the truth, the whole truth, and nothing but the truth....and not "so help me God". Many courts don't use a bible at all anymore. 28 U.S.C. 1746 relates to these "Unsworn Declarations Under Penalty Of Perjury" It is not b/c you don't believe in God that you'd use this...you always have the option of swearing out even a declared affidavit or testifying without swearing on a bible if you're an atheist. They just leave out the "before God" part. Affidavits are the norm, however, in Federal Courts that have an expedited docket this is typically used when it could take a while to get a notary and the evidence is due. (In some states lawyers are automatically notaries but in others they aren't). The ability to swear out a complaint or contest a deposition without having to wait on a notary can be the difference between making your deadline or not. It's commonly used when records custodians are called to certify the authenticity of documents produced pursuant to subpoena or other formal request. Under F.R.Civ.P 56 declarations usually are not within the type of evidentiary categories that can be used at the summary judgment phase. If it's a small misstatement you would probably be faced with a fine. If it's a total lie, outright, you'd be looking at jail time (say a records custodian removed evidence and swore out it was the complete business record in a fraud case). 18 U.S. Code § 1621 discusses perjury generally (in federal actions).
In U.S. practice, double jeopardy protections attach once the jury is seated and this scenario contemplates the change in position arising at trial. A mistrial could be called, or a continuance obtained, if the defendant suddenly claimed an alibi defense, since that amounts of a defendant waiver of double jeopardy protections. But without proof that the witness was tampered with, obtained at the last moment, it can be difficult or impossible to get proof of tampering or to contradict the story with other evidence to undermine the credibility of the witness. The prosecution would probably request a recess in the trial to regroup and try to admit evidence that the testimony changing witness made a prior inconsistent statement to impeach the testimony of that witness, from whomever that witness told the first time (probably a law enforcement officer). But this is still far less convincing to a jury than an affirmative statement from a witnesses about a key fact. If the prosecution could find evidence of defense side tampering and present it to the judge in the hours or small number of days before the trial ends, it might be able to get a mistrial declared. But it is much harder to get a mistrial for witness tampering when the witness shows up and testifies contrary to prosecution expectations than it is when the witness is, for example, killed or kidnapped and doesn't appear to testify at trial at all. But if evidence of neither type could be obtained before the jury was sent to deliberate and evidence was closed, and the jury then acquitted the defendant, it would be very hard for the prosecution to change this result. Perhaps not completely impossible, but very nearly so. The witness could be (and in this circumstance, despite the extreme rarity of perjury prosecutions, probably would be) prosecuted for perjury, but that wouldn't change the acquittal. If a link to the defendant could be found, the defendant could also be prosecuted for witness tampering or obstruction of justice or something similar. But that is hard to prove (and the witness would probably have to be convicted or provided with use immunity for his testimony) to do so. In English criminal law practice, in contrast, the likelihood of having the verdict of acquittal set aside and getting a new trial would be much greater (and the likelihood of getting a recess mid-trial would be greater in far more common bench trials in lower level criminal cases), but it would still be a serious burden for the prosecution that it might not be able to overcome. Lawyers aren't entitled to expect that witnesses will testify exactly the way that they discussed things with the lawyers before trial, and this can be explained away with a variety of excuses that are usually true (&quot;after thinking it over after meeting with you, I realized that I was confused and getting it wrong&quot;), but are sometimes a cover for a change of story that is not sincere. I've had similar things happen a few times in civil litigation and there is only so much you can do about it.