Elashi v. United States

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari.

Brief filed: 06/20/2012


Elashi v. United States

United States Supreme Court; Case No. 11-1390

Prior Decision

Case below sub nom.United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011).


At trial, the court held the Confrontation Clause did not require that the true identities of two government witnesses, a legal advisor for the Israeli Security Agency and an employee of the Israeli Defense Forces be revealed to the defense, and the Fifth Circuit affirmed. Petitioners argue that the writ should be granted because (1) the courts of appeals have split as to whether the Confrontation Clause precludes anonymous testimony; (2) the rule adopted by the Fifth Circuit is inconsistent with the Supreme Court’s prior decisions, particularly Smith v. Illinois (1968); (3) this case presents an excellent set of facts on which to examine the issue; and (4) the issue is likely to recur. The right to know one’s accusers lies at the heart of both the history and practice of the right to confrontation. See Crawford v. Washington (2004). For these reasons, the issue of whether the government may withhold the identity of key witnesses it chooses to present at trial, including experts, should not await another case.

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Jean-Jacques Cabou, Perkins Coie LLP, Phoenix, AZ and Nathan Christensen, Perkins Coie LLP, Portland, OR.