From Decide Alison Nathan’s opinion Friday in U.S. v. Maxwell (S.D.N.Y.):
The Protection … moved to allow three anticipated witnesses to testify below a pseudonym or their first names solely…. The Protection’s major competition is that some type of anonymity for its witnesses is justified by the identical causes that the Courtroom permitted three alleged victims and two associated authorities witnesses to testify below pseudonyms. The Courtroom disagrees with this fundamental premise and denies the Protection’s movement.
“By conference, most witness examinations start with an introduction of the witness to the very fact finder, together with the witness’s title, schooling, residence, work historical past, household and many others. Such background provides the very fact finder some perception into who the witness is whereas additionally serving to regular the witness’s nerves.” That presumption of identification relies, partly, on the “firmly established” precept that “the press and common public have a constitutional proper of entry to legal trials … embodied within the First Modification.” “There are uncommon situations, nonetheless, when it might be applicable … to preclude … inquiring into the witness’s id and background.”
At a convention on November 1, 2021, the Courtroom granted the Authorities’s movement in limine to allow alleged victims to testify below pseudonyms and, as a consequence, to redact their actual identities from displays. That movement was granted for 2 major causes.
First, the Courtroom has a statutory responsibility to guard an alleged crime sufferer’s “proper to be handled with equity and with respect for the sufferer’s dignity and privateness.” 18 U.S.C. § 3771. Due to the “delicate and inflammatory nature of the conduct alleged” the Courtroom discovered that pseudonyms have been crucial to guard that proper.
Second, if alleged victims of abuse have been topic to publicity, harassment, and embarrassment, “different alleged victims of intercourse crimes could also be deterred from coming ahead” to report abuse. The Courtroom emphasised that the Authorities’s proposal is “fairly widespread” amongst courts on this circuit, citing six such instances. As a consequence of defending alleged victims, the Courtroom additional permitted pseudonyms for a number of witnesses that weren’t alleged victims themselves “as a result of the disclosure of their identities would essentially reveal the identities of the alleged victims.”
These causes for granting the Authorities’s prior movement don’t apply to the Protection’s current request. Primarily based on the present proffer, not one of the Protection’s witnesses intend to testify to delicate private matters or sexual conduct. Somewhat, all of them are anticipated to disclaim misconduct by Epstein and Ms. Maxwell, and subsequently don’t qualify as victims below § 3771. Additional, there isn’t a comparable concern, as there are for alleged victims of sexual abuse, that denying the usage of pseudonyms will deter reviews of misconduct.
It’s notable that the Protection doesn’t cite in assist of its movement a single case by which a court docket granted the usage of pseudonyms to protection witnesses. Neither does the Authorities. And nor may the Courtroom after important impartial analysis. It seems, then, that the Protection’s requested reduction is unprecedented.
The Protection raises a number of particular arguments in favor of its unprecedented request.
First, the Protection argues that anonymity is critical to guard its witnesses from scrutiny and harassment due to the numerous publicity this case has garnered. However these generalized issues are current in each high-profile legal case. They don’t current the uncommon circumstances that prior courts have discovered justify the usage of pseudonyms. Additional, the alleged victims that obtained pseudonyms through the Authorities’s case have a statutory proper to have their “dignity and privateness” protected. The Protection’s witnesses don’t have any comparable proper.
Maybe most analogous to Defendant’s request is United States v. Rainiere (E.D.N.Y. Oct. 4, 2021), one other high-profile case involving alleged sexual misconduct. There, after a defendant pled responsible, the protection sought to maintain letters submitted in assist of the defendant at sentencing nameless, arguing that anonymity was crucial as a result of “the authors of supportive letters might face retribution if their identities are publicly identified, given the general public consideration that has been paid to this case” and that failure to take action “could have a chilling impact on people who want to communicate in assist of defendants in different high-profile prosecutions.” The court docket acknowledged the people’ “real curiosity in helping sentencing whereas remaining out of the general public eye themselves,” however concluded that their letters in regards to the defendant did “not contain historically non-public issues” and that the general public’s curiosity in entry prevailed. The Courtroom concludes that the identical evaluation applies right here.
Second, and relatedly, the Protection argues that with out pseudonyms, its witnesses might refuse to testify, implicating Ms. Maxwell’s proper to current a protection. The Courtroom notes the late-breaking nature of the Protection’s request, which was made not pre-trial, as was the Authorities’s request for the usage of pseudonyms, however as a substitute two days after the Authorities rested its case. The Protection may and will have anticipated potential witnesses’ issues. If the Protection anticipated calling a witness who refuses to testify, the Protection would have the identical instruments at its disposal as does the Authorities to compel that witness’s attendance at trial. The Protection may have, for instance, subpoenaed a witness below Rule 17. If the witness resides overseas, the Protection may have sought a letter rogatory …, which is a mechanism that the Second Circuit has repeatedly emphasised. These mechanisms be sure that pseudonyms will not be essential to safe a reluctant witness’s testimony and the Courtroom subsequently rejects this foundation for allowing pseudonyms.
Third, the Protection argues {that a} pseudonym is justified for a witness that works as a plain garments regulation enforcement officer, citing in assist a big physique of case regulation by which anonymity was granted for testifying regulation enforcement officers. However because the Authorities notes, the instances relied on by the Protection uniformly contain officers that work undercover such that revealing their true title to the general public would topic them to violent retaliation by the defendant or different people, or would frustrate their skill to stay undercover. Even additional afield, the Protection cites in assist a case by which a covert CIA officer testified below a pseudonym. These instances are inapplicable to the current request as proffered to the Courtroom.
Fourth, the Protection argues {that a} pseudonym is justified for one witness as a result of, below the Authorities’s idea of the case, she is a sufferer of sexual abuse by Epstein. There are not less than two issues with this justification. First, based mostly on the Protection’s present clarification of this witness’s anticipated testimony, this witness will testify that she was not the goal of any sexual misconduct by Epstein or Ms. Maxwell. She would subsequently fall exterior the scope of the Crime Victims’ Rights Act, which defines a sufferer as “an individual straight and proximately harmed because of the fee of a Federal offense.” Although the Act’s definition of sufferer is “expansive,” the Protection has not recognized a approach by which this witness was harmed, “whether or not bodily, financially, psychologically, or in any other case” by an offense allegedly dedicated by Ms. Maxwell. Second, and relatedly, the Courtroom understands that this witness will testify that sexual conduct did not happen. Consequently, the testimony doesn’t increase the identical dangers of embarrassment or harassment as did the opposite witnesses’ testimony, nor does it threat deterring alleged victims of sexual abuse from coming ahead in future instances. The Courtroom subsequently rejects this foundation for allowing testimony below a pseudonym.
The Protection’s fifth argument is that the Courtroom permitted two non-alleged victims to testify below pseudonyms, which justifies allowing its witnesses to do the identical. However because the Courtroom defined, it permitted two non-victims to testify below pseudonym solely “as a result of the disclosure of their identities would essentially reveal the identities of the alleged victims.” The Protection has not recognized any comparable dynamic right here.
Final, the Courtroom emphasizes that whereas it at present denies the Protection’s movement, the Protection might after all increase, and the Courtroom will contemplate, objections that individual strains of questioning into witnesses’ backgrounds or lives are irrelevant, cumulative, meant to harass, or in any other case inappropriate…. [E]ven when anonymity will not be warranted, the court docket has an obligation to guard a witness “from questions which transcend the bounds of correct cross-examination merely to harass, annoy or humiliate him” ….