SHOULD UNDERCOVER POLICE OFFICERS BE ALLOWED TO TESTIFY ANONYMOUSLY? A New York Judge Says No, But A Case-By-Case Approach May Work Best

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 defendant the right to a "public trial" at which he will be "confronted with the witnesses against him." A "public trial" means one conducted in a courtroom that anyone can enter. And confrontation means, among other things, that the defendant has a right to cross-examine the government's witnesses - which is difficult to do if you don't know their names. These rights are not absolute, but Judge Cropper ruled that the government hadn't justified either closing the courtroom or limiting cross.

The response to Judge Cropper's ruling was outrage. New York Police Commissioner Raymond Kelly excoriated the judge, and encouraged his officers to continue to refuse to give their names. The Manhattan D.A.'s office has decided to appeal Judge Cropper's ruling. Meanwhile, the usual suspects, lead by the New York Post, have called for Judge Cropper's head.

The law suggests that the NYPD's position will be hard to maintain. The facts, fortunately, suggest that it isn't necessary to close courtrooms or allow anonymous testimony to protect an officer. Moreover, when an officer is at risk, the law provides sufficient protection.

Not All Undercover Officers are in Equally Perilous Situations

To understand the risks for an undercover officer, we need to understand what, exactly, he is doing. 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 officer is at risk. That means the courtroom will probably stay open even if the prosecution seeks closure.

There's less at stake for the defendant when it comes to the officer's name - so that requesting anonymity may be more successful. But there's also, in truth, less at stake for the officer.

Only a fraction of a police force - about 10% - is actively involved in making cases, so prosecutors, defense lawyers, and judges get to know the officers who actually have to testify in court pretty quickly. Any courthouse regular can easily find out an officer's name.

In addition, the police have no absolute right to hide the identity of an officer. And the defense bar has a vested interest in finding out the names of officers who are routinely testifying. In short, testifying under a badge number is of limited value in protecting the identity of an undercover officer who intends to operate for any length of time.

All of this would be highly problematic if an undercover officer's identifying himself in an open courtroom really put him or her safety at risk. And it does, sometimes.

When it does, there are a number of ways to protect the officer. Most obviously, the government can simply wait until his undercover assignment is over, so that he's not on the street after he has testified.

Sometimes we also go further - closing courtrooms, erecting screens, providing masks, scrambling voices, withholding information. News coverage of the big Mafia trials of the '80s and early '90s provided citizens a glimpse of all these tools.

But there is very little evidence that undercover officers in the ordinary buy-bust operation are in this type of danger. First, there is the experience in other jurisdictions. In many major cities - such as Los Angeles, Chicago, Denver, and Washington, D.C. - there is no tradition of allowing undercover officers to testify anonymously in closed courtrooms. And there is no evidence in these cities that undercover officers are exposed to greater dangers or are less effective.

No doubt, anonymity would prolong the shelf-life of an undercover buyer. But no undercover officer operates forever, at least not in any one place. And moving officers is highly effective, especially in big cities.

After all, drug bazaars are highly localized operations. From the perspective of a dealer in, say, south central Los Angeles (not far from downtown), a buyer in, say, Van Nuys (in L.A.'s San Fernando Valley) might as well be in Riga (that's in Latvia). Officers can move around a city and work effectively in an undercover capacity for years at a stretch.

A Case-by-Case Approach to Courtroom Closure and Witness Anonymity

Because organized criminal enterprises are so much more dangerous than disorganized ones, the fact that an officer is working in protected territory could well be sufficient to justify concealing his or her identity. Similarly, in such cases, a judge should be open to the possibility of closing the courtroom so that the defendant's confederates cannot sit and watch.

But most drug trials in this country take place in courtrooms both open and empty, and involve defendants unconnected from anything larger that their personal supplier and their need for a quick buck. In these cases, closure of the courtroom and anonymity of the testifying officers will rarely be necessary.

There is, finally, a broader implication if we do allow officer anonymity. Many of the battles against drugs on our streets are fought by individual officers involved in individual buy-bust operations again and again. Whatever one's view of the "war on drugs," such operations will remain a significant part of law enforcement. We should be careful before turning the men and women on the front lines of those battles into an anonymous - and therefore, necessarily, less accountable - force.