United States v. El-Mezain. et al. (Holy Land Foundation for Relief and Development)

Amicus curiae brief of the National Association of Criminal Defense Lawyers.

Brief filed: 10/26/2010


United States v. El-Mezain. et al. (Holy Land Foundation for Relief and Development)

5th Circuit Court of Appeals; Case No. 09-10560


Two witnesses who testified at trial were allowed to keep their identities secret while offering crucial testimony on behalf of the government. One, a purported member of the Israeli Security Agency, was offered as an expert witness with supposed expertise on Palestinian zakat committees and their connections to Hamas. He was not just anonymous to the jury or the public, but unknown to the defendants and their attorneys. The defense was thus deprived of any opportunity to investigate and cross-examine him regarding his background, stated experience, reputation in his field of expertise, reputation for honesty, still unknown biases against defendants, or any other information that might cause the jury to view his testimony in a different light. Anonymous testimony violates the Sixth Amendment’s Confrontation Clause; at a minimum defense counsel must know the identity of testifying witnesses; in particular, research into an expert witness’s background can reveal damning biases and conflicts of interest which powerfully discredit the expert.

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Jean-Jacques Cabou and Joseph N. Roth, Osborn Maledon, PA, Phoenix, AZ and Barbara Bergman, Univ. of New Mexico School of Law/NACDL, Albuquerque, NM.