On July 19, an undercover police officer took the stand in a New York courtroom to testify against an alleged drug dealer named Fabian Joseph. Consistent with longstanding practice in New York City, the officer refused to identify himself by anything but his badge number. Inconsistent with longstanding practice in New York City, trial judge Dorothy Cropper barred the officer's testimony. Judge Cropper ruled that because the undercover officer had failed to show he was in particular danger of retaliation from the defendant for his testimony, he had to give his name. When he refused, she showed him the door.
The basis for Judge Cropper's ruling was the Sixth Amendment, which guarantees the ...view middle of the document...
The officer in the Fabian Joseph case was not part of a years-long infiltration into the Mafia. Nor was he apparently involved in a major investigation into a drug market controlled by an organized gang watching its territory, and willing to protect that territory with violence.
In fact, most drug markets are not tightly controlled by drug gangs. Gangs are hard to maintain, and the economic rewards of controlling territory are not always easy to reap. Thus, many drug markets are open - anyone can deal, anyone can buy. These are the easiest markets in which undercover officers can operate, because there is no one keeping a watchful eye on dealers and customers, as a gang enforcer might.
Apparently, the officer in Joseph's case was involved in a standard "buy-bust" operation in an open market. Here's how it works: the officer buys drugs from a dealer, leaves the scene, and then directs a waiting team of officers to the dealer. The officers then arrest the dealer. Next, the undercover officer - from one of those famous "undisclosed locations" - identifies the arrestee as the dealer, and a drug distribution case is born.
The Sixth Amendment Rights to Public Trials and Cross-Examination
The officers in Fabian Joseph's case wanted to testify anonymously. But many NYPD undercover officers also ask judges to close courtrooms. And in fact, the combination seems necessary if an officer is really serious about protecting his identity.
If the courtroom is open and the defendant's confederates can watch the officer's testimony, then the officer's cover is blown. And if the courtroom is closed, but the defendant finds out the officer's name, that's not much better. It's not that hard to put a face to the name.
But for a judge to both close the courtroom and allow a witness for the prosecution to remain anonymous is hard to defend.
To close a courtroom, the judge needs to find an "overriding" state interest that cannot be protected by any other means. Limiting cross-examination is easier. The judge can do that to ensure that a witness is not embarrassed or endangered. Still, asking for basic personal information (such as your name) is standard during cross-examination. And the U.S. Supreme Court has repeatedly said that when a question is "normally permissible," the witness needs to provide a good reason why it shouldn't be asked in a particular case.
Protecting an undercover officer's identity in your basic buy-bust is unlikely to pass either test. "Overriding" state interests usually involve rather particularized threats connected to a given defendant and a given witness. Even whether there isn't a direct threat, this test can be passed in cases involving organized crime - such as crime families, drug dealing organizations, and biker gangs. But in your typical buy-busts, which are really a tool for attacking street level dealers or disorganized open-air drug markets, it is much harder (absent a specific threat) to make the case that an individual...