This was originally posted on the SGR blog.
Would Witnesses Be Allowed to Testify Anonymously At Trial?
A multi-family residential building is terrorized by members of an armed and violent street gang that congregates in one of the apartments. The landlord seeks to evict the tenants of that unit in a so-called “nuisance” summary proceeding—in which many of the witnesses would be neighbors of the gang-member/tenants. But those witnesses fear for their safety and want to testify anonymously. And the Court is asked for permission for them to do so. Are the tenants charged with misconduct entitled to know the identities of the witnesses against them?
Y.A. Mullings Inc. filed a holdover proceeding against Veronica Hall, Oriceida Yearwood, Marcus Yearwood, and Malcolm Yearwood seeking possession of 394 Montgomery Street, Apt. 4B in Brooklyn and alleged that they have committed a nuisance. Mullings asked the Court to permit its witnesses to testify at a closed hearing at which the tenants would not be able to observe the faces or ascertain the identities of the witnesses.
The predicate notice, incorporated into the petition by reference, alleged that the tenants and their invitees congregated in the common areas of the building in which the premises is located and have made noise, left garbage, harassed tenants in the building, assaulted Mullings’ principal, sold marijuana, broke the lock to the common entrance, and trespassed onto the roof at the same time that gunshots were fired.
Mullings’ attorney affirmed in support of the motion, on information and belief, that one of the tenants and his friends are members of a violent street gang that was “notorious” for being armed, “prone to engaging in violent behavior including murder,” and “quick to wreak retribution upon anyone that they feel has wronged them.” Mullings’ attorney affirmed that ten witnesses had agreed to testify against the tenants, but that “many” of them “indicate[d] that they [were] terrified of revealing their identifies[.]” And that several non-party tenants in the building had been threatened for calling police about the tenants and an employee of Mullings had been threatened for providing information to Mullings. The attorney affirmed that “[v]irtually every” nonparty witness would prefer to testify without revealing their names or addresses and without exposing their faces.”
In support of its motion, Mullings annexed press reports and press releases concerning various crimes committed in Brooklyn. One of the articles, dated June 21, 2019, referenced a shooting at the building. Another one, dated July 14, 2021, referenced someone being murdered elsewhere in Brooklyn. Mullings’ attorney affirmed that her witnesses told her that they had seen the victim in the building. But did not connect the remaining articles to anything having to do with the tenants or the building.
In a criminal trial, the Court may limit cross-examination about a witness’ identity, address, and occupation upon a showing that a cognizably valid interest of the witness is involved, i.e., a showing that the question will harass, annoy, humiliate, or endanger the witness. Upon making such a showing, the burden then shifts to the examining party to demonstrate the materiality of the requested information. The Court must then, in the exercise of discretion, weigh the various interests involved and determine whether the testimony was sufficiently material to overcome the interest of the opposing party. Although not exhaustive, the following factors show materiality: (1) the extent to which the right to cross-examine is infringed; (2) the relevance of the testimony; (3) the nature of the crime charged and the quantum of proof established aside from the testimony of the witness; (4) the nature and significance of the interest or the right asserted by the witness; and (5) the nature of and the extent to which the proposed cross-examination would produce evidence favorable to that party and whether such evidence would be merely cumulative.
Factors supporting anonymous testimony include the risk of premature termination of an especially significant ongoing police investigation; a witness who is a confidential informant working with police; where a criminal defendant already knew the original names of the witnesses before the witnesses received new identities and relocation for their protection; where the District Attorney provided the defense with the arrest record of the witnesses up to the month before trial; where the People showed convictions of members of the defendant’s family; where another eyewitness had been murdered; where a defendant had recently been indicted for slashing five inmates with whom he had been jailed, as well as a criminal history which included other violent crimes; and when knowledge of a police officer’s shield number already opened an avenue of investigation. Mullins did not identify any of those factors in this case.
A witness may also remain anonymous upon proof of the danger to the life of the witness and a defendant’s family’s attempts to discourage potential witnesses from testifying. Mullings alleged that the witnesses feared repercussions from testifying and that witnesses had been threatened for calling the police, albeit only by the affirmation of an attorney, which had no probative value.
The Court was required to balance Mullings’ arguments against the tenants’ right to cross-examine witnesses. In any trial the party accused must be confronted with the witnesses against them. And cross-examination of an adverse witness is a matter of right in every trial of a disputed issue of fact. Cross-examination confers upon litigants, including civil litigants, an opportunity to challenge their adversary’s evidence where the evidence consists of the testimony of witnesses whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy.
The very starting point in exposing falsehood and bringing out the truth through cross-examination must necessarily be to ask for the witness’ name and address. The witness’ name and address open countless avenues of in-Court examination and out-of-Court investigation. A litigant can then ascertain, for example, if the witness is the same person who may have cause to be biased against the litigant, a witness’ criminal record, or any social media postings of a witness. A restriction of a witness’ identity therefore necessarily impairs a litigant’s right to cross-examine.
Accordingly, the Court normally must permit a party to cross-examine witnesses about their identity, address, and occupation.
The Court does reserve discretion to limit the scope and manner of cross-examination, but the extent to which Mullings’ wished to restrict the tenants’ ability to cross-examine factors into this determination as well. For example, a witness should not testify anonymously when that witness is “central” to the People’s case against a criminal defendant. Conversely, witnesses may testify anonymously where only a small number of the witnesses against a defendant concealed their identities—or in the face of similarly predominant evidence against a defendant aside from the concealed witness’ testimony. Mullings did not provide information about the extent of their case aside from the witness testimony. Instead, Mullings’ counsel affirmed in support of the motion that “virtually every” witness wished to conceal their identity.
The lack of a record about the extent of Mullings’ case, other than anonymous witness testimony, underscored the limited utility of authority from criminal matters to the pending civil proceeding. Criminal defendants get discovery, including discovery about witnesses, as a matter of law. The tenants here only get discovery by leave of Court. The discovery criminal defendants receive places them in a far more favorable place to weather infringements of their right to cross-examine than civil respondents in summary proceedings who do not obtain discovery.
Mullings suggested that it could apprise the tenants’ counsel of the names of the witnesses as long as counsel would not disclose the names to his clients. That proposed course of action, while creative, deprived the tenants’ counsel of the ability to check with her clients to see if any witness had a personal bias against them and interfered with the attorney-client relationship in ways that would unfairly put their counsel in an ethically problematic posture.
The Court concluded that, while not absolute, the right to meaningful cross-examination mattered enough to require a greater showing of a need to conceal the witnesses’ identities than a statement by an affiant, with no personal knowledge, that “virtually every” non-party witness feared the tenants and should testify anonymously, particularly with no discovery or other showing of the quantum of evidence in Mullings’ case so that the Court could evaluate the extent of the restriction of the tenants’ ability to cross-examine the witnesses against them. The Court denied Mullings’ motion.