<< The Ethics of SVP Evaluations | Main | No Circuit Split on Felon Voting >>

Fruit of the Wartime Tree

The Fifth Amendment provides that "no person shall be compelled to be a witness against himself in any criminal case."  Does that preclude the government from using the voluntary testimony of a witness whom it would not know about but for an involuntary statement from the defendant himself?  That gets us into arguments about "fruit of the poisonous tree" and so forth.

But what if the identity of the witness is obtained in a wartime interrogation of an enemy that is legal, even though involuntary?  The tree is not poisonous in the sense of any violation of the law occurring at the time of the interrogation.  And the defendant has not been compelled to be a "witness" in the sense that "witness" is now used in the new view of the Sixth Amendment's Confrontation Clause under the Crawford v. Washington line. That is not the sense in which the Supreme Court used the word "witness" while developing its Self-Incrimination Clause jurisprudence, of course.  Does "witness" mean two different things in amendments adopted simultaneously?

Well, Judge Lewis Kaplan has excluded the evidence in the civilian trial of alleged embassy bomber Ahmed Khalfan Ghailani.   James Taranto features the decision in this post at the WSJ.  If evidence such as this is truly inadmissible in a civilian trial for terrorism, that is one more reason to try such cases before military commissions.

I will have more to say on this decision after I have studied it some more.

Leave a comment

Monthly Archives