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... supports Professor William Snyder's sections of National Security Law, Counterterrorism Law, and Prosecuting Terrorists at the Syracuse University College of Law.

Why we don’t use the report “Trying Terrorists in Article III Courts.”

Sep 5th, 2009 Uncategorized

Just two months ago, three groups including the distinguished ABA Standing Committee on Law and National Security published Trying Terrorists in Article III Courts: Challenges and Lessons Learned.  At first sight, that may seem like a perfect text for our course.  Unfortunately, it is so riddled with errors that I can not recommend it for use by persons not already familiar with the subject area.

The report is meant to be a record of discussions at a workshop.  The discussants are distinguished, knowledgeable and in some cases acquaintances or friends of mine.  According to the "Reporters' Note," "the reporters added background and introductory information"(p.6).  Perhaps that is the root of the problem.  In any event, the report is not to be trusted.

For example, Section V.D. on Chain of custody states:

The Federal Rules also prescribe specific requirements to ensure the authenticity of evidence for use in prosecutions, known as “chain of custody” requirements. In terrorism cases, it often proves difficult, if not impossible, to observe the mandated level of protection of evidence. … Moreover, information that the government seeks to use against accused terrorists may have been obtained by the intelligence community without any sense that the information might later be used in a criminal prosecution. This evidence, therefore, has not been subjected to the chain of custody requirements that are imposed on evidence collected for use in court. Discussants were unable to reach a conclusion on whether such information could lawfully be used in terrorism trials. One discussant noted that in at least one international criminal tribunal, the court removed all chain of custody requirements. It was suggested, without consensus, that Article III courts should similarly permit the parties to a terrorism trial to admit all plausible and relevant evidence without regard for chain of custody.

The problem here is just simple ignorance of the law.  Anyone who has ever litigated in federal court (or prepared for the Multi-State Bar Exam) should be able to tell you that a break in the chain of custody of evidence goes to its weightnot its admissibility.  There is no reason to change anything to remove chain of custody requirements in Article III courts, because proof of chain of custody is not required in Article III courts.  Authentication is required, but that is hardly the same thing as proving chain of custody.  In their famous treatise, Mueller and Kirkpatrick write, "Although serious gaps may raise enough doubt to require exclusion, a break in the chain is not necessarily fatal to admissibility…" MUELLER & KIRKPATRICK, EVIDENCE § 9.5, at 1004 (3d ed. 2003).  Put even more clearly and authoritatively, the United States Supreme Court noted just a month before this report was released: “gaps in the chain [of custody] normally go to the weight of the evidence rather than its admissibility.”  Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 2532 (2009).  [The term "chain of custody" never appears in the Federal Rules of Evidence.]

Although I do not recommend that you use this report for our class, there are two white papers that I do recommend — In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts and In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts, 2009 Update and Recent Developments — available as free downloads. The first is here. The second is here.  The primary authors of these papers were Richard B. Zabel and James J. Benjamin, Jr., both former Assistant United States Attorneys.  Judge Brinkema highly recommended the first of these two papers (the only one in existence at the time) to us when she spoke to our class last year.   I do not necessarily endorse their conclusions (I'd prefer you to make up your own mind), but these two papers are accurate, authoritative, and highly useful in our course.  A brief video about the papers is available at this link.

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