2056. Preparation Of Witnesses Whose Testimony May Involve Classified Information

Espionage and other national security-related prosecutions frequently require expert witnesses for the government to testify concerning highly sensitive intelligence gathering projects and sources affecting the national security. Often, such witnesses are essential in establishing one or more elements of the charge and in explaining to the jury the damage suffered by the United States as a consequence of the defendant's actions. Because of the highly sensitive nature of such testimony, prosecutors must rely on extensive pretrial preparation and on the provisions of the Classified Information Procedures Act (CIPA), 18 U.S.C. App. (Supp. V 1981), to avoid unnecessary or inadvertent disclosures of classified information by such witnesses during direct or cross-examination.

In preparing experts to testify concerning sensitive security matters, prosecutors -- working with Internal Security Section attorneys and consulting with representatives of the intelligence agency whose classified information is at issue -- must first identify what particularly sensitive areas may be subject to disclosure during the expert's direct or cross-examination. Using CIPA sections 6(a) and (c), the government may then seek, if necessary, pretrial evidentiary rulings on the relevance, admissibility and use of such classified information, including rulings on the scope of cross-examination of an expert witness.

Moreover, as an additional precautionary measure to prevent unnecessary disclosures of classified information, section 8(c) of CIPA addresses the problem presented during trial when the witness is asked a question that would require him or her to disclose classified information not previously found by the court to be admissible. Under section 8(c), the prosecutor may object to any question or line of inquiry that may require the witness to disclose such classified information. The court must then take suitable action "as will safeguard against the compromise of any classified information."

These CIPA procedures render it unnecessary, and indeed unwise, to burden a witness, even one testifying about highly sensitive matters, with extensive written instructions providing what may or may not be disclosed from the witness stand. The result of such directives could be that the witness may be unduly burdened, as he or she strives to be responsive and forthcoming, yet remain within the parameters of exacting instructions.

Prosecutors and intelligence community representatives should also note that written instructions to a witness could, in some circumstances, become producible under Jencks. In United States v. Goldberg, 425 U.S. 94, 98 (1976), the Supreme Court held that a writing prepared by a government lawyer relating to the subject of the testimony of a government witness becomes producible under Jencks if it is "signed or otherwise adopted or approved" by the witness. The Internal Security is prepared to assist USAOs in analyzing these issues and deciding upon the appropriate pretrial and trial use of CIPA and related procedures.

Please contact Ronald R. Roos, Senior Litigation Counsel, at (202) 514-1211, or Kevin P. Connolly, Senior Trial Attorney, Graymail Unit, Internal Security Section, at (202) 514-1244, if you have any questions or require further information.

[cited in JM 9-90.200]