Secrecy, National Security and the Vindication of Constitutional Law
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Secrecy, National Security and the Vindication of Constitutional Law

Edited by David Cole, Federico Fabbrini and Arianna Vedaschi

Virtually every nation has had to confront tensions between the rule-of-law demands for transparency and accountability and the need for confidentiality with respect to terrorism and national security. This book provides a global and comparative overview of the implications of governmental secrecy in a variety of contexts. Expert contributors from around the world discuss the dilemmas posed by the necessity for – and evils of – secrecy, and assess constitutional mechanisms for checking the abuse of secrecy by national and international institutions in the field of counter-terrorism.
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Chapter 12: The normalization of anonymous testimony

Jason Mazzone and Tobias Fischer


In recent years a remarkable development has occurred in criminal justice systems around the world: an increase in the use of testimony from witnesses whose identities are kept secret. Most strikingly, use of anonymous testimony has expanded vastly in adversarial systems despite the long-recognized right of an accused to confront his or her accusers. Once confined to trials of war criminals before international tribunals, terrorists and other extraordinary defendants, anonymous testimony has become a normal part of criminal justice throughout much of the world. In the United States, by contrast, shielding a witness’s identity in criminal cases is almost unheard of. In fact, during the period in which other adversarial systems have embraced anonymous testimony, the US Supreme Court has issued a series of rulings strengthening the right of criminal defendants to confront their accusers in open court. Anonymous witnesses have been permitted to testify in US courts in cases involving terrorism and gang-related murders, for example, but they truly remain the exception. At first blush, it might appear that if there is to be anonymous testimony it should be – as it is in the United States – a rare occurrence because of both the resulting limitations on the rights of defendants and the increased risk of erroneous convictions. However there is a viable argument that normalizing anonymous testimony, as has occurred in the three countries surveyed here – the United Kingdom, Australia and New Zealand – better protects the interests of defendants. Normalization is arguably preferable because judges and lawyers may develop better safeguards for routine,

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