Ghislaine Maxwell’s Defense Can’t Call Anonymous Witnesses, Though Three Prosecution Witnesses Were Anonymous

In Judge Alison Nathan’s Friday opinion U.S. against Maxwell (S.D.N.Y.:

The Defense … moved to permit three anticipated witnesses to testify under a pseudonym or their first names only…. Defense’s main contention is that an anonymity system for its witnesses would be justified because the Court granted three of its alleged victims, and two other witnesses related to the case, permission to speak under pseudonyms. This is a fundamental premise that the Court rejects and denies.

The majority of witness examinations include a witness introduction to the factfinder. It includes information about the witness, such as their education and work history. The fact finder can gain insight about who the witness really is and help calm their nerves. That presumption of identification is based, in part, on the “firmly established” principle that “the press and general public have a constitutional right of access to criminal trials … embodied in the First Amendment.” “There are rare instances, however, when it may be appropriate … to preclude … inquiring into the witness’s identity and background.”

On November 1, 2021 the Court granted the Government’s motion of limine to permit the alleged victims under pseudonyms to testify and to remove their identities from the exhibits. The Court granted the motion in limine for two reasons.

First, the Court must uphold an accused crime victim’s right to fair treatment and respect for her dignity and privacy. 18 U.S.C. § 3771. Due to the nature of the conduct being alleged, the Court decided that pseudonyms were needed in order protect this right.

The second is that if victims of abuse are subjected to harassment and publicity, other victims may not be able to come forward to report the abuse. It was cited six cases in which the Court said that the proposal by Government is common among circuit courts. The Court also allowed pseudonyms to several witnesses who were not victims but wanted to protect them. “The disclosure of their identities would require the revelation of the identities of the victims,” the Court stated.

The Defense’s request is not subject to these reasons. The current proffer indicates that none of the Defense witnesses are going to testify about sensitive subjects or sexual conduct. Rather, they all are anticipated to deny misconduct by Epstein and Ms. Maxwell, and therefore do not qualify as victims under § 3771. Other than for sexual abuse victims, the concern is not that using pseudonyms would deter misconduct reports.

Notably, the Defense has not provided any supporting evidence in support of the motion for a case in which the court permitted the use of pseudonyms by defense witnesses. The Government does not agree. After extensive research, neither could the Court. It seems, therefore, that the Defense’s request for relief is unheard of.

The Defense argues in support of the unprecedented request with several arguments.

Second, because this case is so well-publicized, the Defense claims anonymity protects witnesses and prevents them from harassment. However, these concerns can be found in any high-profile case involving a criminal. These cases do not have the unique circumstances which courts in the past found justifiable for pseudonyms. The Government has a statute that protects the privacy and dignity of the victims who were given pseudonyms in this case. Similar rights are not available to witnesses for Defense.

Perhaps, the most comparable to the request by the Defendant would be United States v. Rainiere (E.D.N.Y. (E.D.N.Y.) Oct. 4, 2021, another case of alleged sexual misconduct. After a defendant had pled guilty to the charges, the defense requested anonymity for letters supporting the defendant’s sentencing. They argued that “the authors” of these letters could face retribution “given the public attention to the case.” Failure to comply with this request “will chill individuals who want to support defendants in high-profile cases.” While acknowledging the “genuine interests” of these individuals in helping sentencing, the court concluded that they did not “involve traditionally private issues and the public was more interested in having access to them. This Court agrees with the Court.

A second, related point is that the Defense claims its witnesses could refuse to testify without pseudonyms. This would negate Ms. Maxwell’s right to present her defense. The Court points out that the Defense’s request was not made pre-trial as the Government requested for pseudonyms. It was instead made two days after the Government had rested. Potential witnesses’ fears could have been anticipated by the Defense. Defense might have anticipated calling witnesses who refused to testify. If so, it would have all the tools available to the Government for compel their attendance at trial. A witness could be subpoenaed by the Defense under Rule 17. If the witness resides abroad, the Defense could have sought a letter rogatory …, which is a mechanism that the Second Circuit has repeatedly emphasized.  These mechanisms make it clear that pseudonyms don’t have to be necessary in order to obtain a reluctant witness’s testimony. Therefore, the Court disapproves of this justification.

A third argument is made by the Defense that anonymity can be used to identify a witness working as a plain-clothes law enforcement officer. This support comes from a substantial body of caselaw in which anonymous testimony was permitted for officers in law enforcement. As the Government points out, these cases all involve undercover officers so that they could be subject to violent retaliation from defendants and other people or hinder their ability remain undercover. The Defense also cites as supporting evidence a case in the which a covert CIA official testified in a false name. The Court has not applied these cases to the current request.

Fourth, defense argues that the Defense can use a pseudonym for one witness, because she, according to the Government’s case theory, is an Epstein victim. This explanation has at most two flaws. First, according to the Defense’s present explanation, this witness will testify she was Not The victim of Epstein and Ms. Maxwell sexual misconduct. This would mean that she is not covered by the Crime Victims’ Rights Act. It defines victim as “a person who has been directly or proximately injured as a consequence of an offense of Federal government.” The Defense’s definitions of victims are “expanding,” but they have not provided any evidence that the witness was physically, financially or psychologically harmed by the offenses allegedly committed in her name. The Court also understands that the witness will be testifying that Ms. Maxwell committed sexual misconduct. Not occur. The testimony doesn’t pose the same harassment or embarrassment as the testimony of other witnesses, and it does not risk deterring future victims from coming forward. The Court disapproves of this excuse for allowing testimony to be given under a pseudonym.

Fifth, the Defense argues that Court allowed two victims who were not alleged to be victims to testify using pseudonyms. This is a valid argument and justifies allowing its witnesses to use the same. As the Court stated, the Court allowed the pseudonym testifying under the pseudonym of two victims “because disclosure of their identities would require them to reveal the identities the alleged victim.” There is no similar dynamic identified by the Defense.

Last, the Court emphasizes that while it currently denies the Defense’s motion, the Defense may of course raise, and the Court will consider, objections that particular lines of questioning into witnesses’ backgrounds or lives are irrelevant, cumulative, intended to harass, or otherwise inappropriate…. [E]ven when anonymity is not warranted, the court has a duty to protect a witness “from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate him” ….