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Wednesday, April 6, 2011

Protecting Classified Information and the Rights of Criminal Defendants: The Classified Information Procedures Act

Edward C. Liu
Legislative Attorney

Todd Garvey
Legislative Attorney

A criminal prosecution involving classified information may cause tension between the government’s interest in protecting classified information and the criminal defendant’s right to a constitutionally valid trial. In some cases, a defendant may threaten to disclose classified information in an effort to gain leverage. Concerns about this practice, referred to as “graymail,” led the 96th Congress to enact the Classified Information Procedures Act (CIPA) to provide uniform procedures for prosecutions involving classified information.

The Classified Information Procedures Act (CIPA) provides criminal procedures that permit a trial judge to rule on the relevance or admissibility of classified information in a secure setting. It requires a defendant to notify the prosecution and the court of any classified information that the defendant may seek to discover or disclose during trial. During the discovery phase, CIPA authorizes courts to issue protective orders limiting disclosure to members of the defense team that have obtained adequate security clearances, and to permit the government to use unclassified redactions or summaries of classified information that the defendant would normally be entitled to receive.

If classified information is to be introduced at trial, the court may allow substitutes of classified information to be used, so long as they provide the defendant with substantially the same ability to present a defense and do not otherwise violate his constitutional rights. Among the rights that may be implicated by the application of CIPA in a criminal prosecution are the defendant’s right to have a public trial, to be confronted with the witnesses against him, and to have the assistance of counsel. CIPA may also be implicated by the obligation of the prosecution to provide the defendant, under Brady v. Maryland, with exculpatory information in its possession, and to provide the defendant with government witnesses’ prior written statements pursuant to the Jencks Act.

Date of Report: March 31, 2011
Number of Pages: 11
Order Number: R41742
Price: $29.95

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