The U.S. justice system’s increasing lack of transparency raises serious constitutional concerns, according to a forthcoming American Criminal Law Review paper.
Many of the most critical elements of the system, ranging from grand jury proceedings and pretrial deliberations to jury deliberations are “cloaked in secrecy” that, while justified in many cases, may interfere with Fourth Amendment rights, argues Meghan J. Ryan, a Professor of Law at the Southern Methodist University Dedman School of Law.
The secrecy makes it difficult, if not impossible, to judge whether the U.S. justice system is living up to the values of American democracy, added Ryan, who is also the Dedman School’s Associate Dean for Research.
“Although there are some justifications for this secrecy, the ubiquitous nature of it is contrary to this nation’s Founders’ steadfast belief in the transparency of criminal justice proceedings,” she wrote.
“Further, the pervasiveness of secrecy within today’s criminal justice system raises serious constitutional concerns.”
“From beginning to end, covert operators and legal rules hide the inner workings of the system” in what is effectively a “black box” impenetrable to outsiders—and the system has become even more opaque thanks to the sophisticated technologies now used by police and government agencies in their investigations, Ryan details.
“Despite [the] asserted justifications for shrouding the workings of our criminal justice system, this extensive secrecy is contrary to the system’s transparency roots,” Ryan argues.
The paper outlines how over the last two decades post-September 11, 2001, governments have used secret surveillance, requiring internet and telecommunication companies to surrender civilian’s personal data, browsing history and detailed conversations.
Law enforcement agencies have also used “Stringray devices” which “mimic cell phone towers and send out signals to trick cell phones in the area into transmitting their locations and identifying information,” just to name a few instances.
This, Ryan details, is the tip of the secret surveillance iceberg, for every piece of technology we know about, investigators have more.
“Evidence exculpating defendants is often hidden from defendants, judges, juries, and the public more broadly,” Ryan writes. “Beyond hiding exculpatory evidence, prosecutors are also using secret evidence to actually convict criminal defendants.
“Breathalyzer and some DNA evidence, for example, is based on source codes and algorithms to which defendants are generally denied access because they are categorized as trade secrets.
“This means that defendants lack the opportunity to truly challenge this evidence in court.”
Grand jury proceedings and jury deliberations are also examples of the secrecy “black box.”
Ordinarily, grand jurors are prohibited from disclosing information to the public, and the context for jury deliberations can only be given to the public after their decision is made public.
“Even if there is evidence of juror misconduct infecting the discussions, this information ordinarily cannot be used to legally undercut the verdict that was reached,” Ryan writes.
“Instead, jury deliberations ordinarily remain a black box.”
Plea bargaining and decisions about sentencing also are “shrouded in secrecy.” Plea bargaining discussions do not need to be on record, and final plea agreements “are often not reduced to writing,” Ryan explains.
For many of these unique situations, if you’re not permitted in the room in the moment when something is happening, you may never know how the resulting decision was made, Ryan explains.
Justifications for Secrecy
“Secrecy is pervasive within the criminal justice system, and its extent may very well be shocking, but there are some justifications for secrecy in at least some circumstances,” Ryan acknowledged.
The most significant reason is the government’s interest in protecting the integrity of its prosecution of cases, according to Ryan.
For example, the secrecy of juries is designed to protect jurors from outside influence and witness tampering, and ensure a “fair and speedy trial.”
Secrecy in plea bargaining prevents defendants from gaining useful information that prosecutors have offered other defendants, and putting others at a disadvantage.
Overall, Ryan writes, secrecy is meant to protect individual citizens, protect the government, protect witnesses, and the system as a whole.
However, too much secrecy leads to “concrete constitutional concerns,” she warns.
“The intense secrecy surrounding much of today’s government surveillance raises Fourth Amendment questions,” Ryan begins, noting that everyone has the right to be free from unreasonable searches and seizures, and historically, the Supreme Court interprets this right to include privacy.
Some technologies, like the Stingray device, raise Fourth Amendment concerns on their own, Ryan explains.
Moreover, because of the secrecy regarding plea-bargaining and the inability to get evidence of what was said or agreed to behind closed doors, advocates argue that it’s nearly impossible to see if someone was discriminated against based on race, religion, or any other arbitrary classification, Ryan details.
“Certainly, secrecy may sometimes be justified, and, in beginning to tear down the immense wall of secrecy within the system, we must be careful not to create unintended consequences that may be damaging to effective law enforcement and defendants’ constitutional rights.”
But, Ryan concluded, “It is now time to revisit the constitutional rules surrounding the secrecy that has become ubiquitous within our criminal justice system despite our Founding Fathers’ sincere belief in the transparency of the American criminal justice system.”
Meghan J. Ryan is an Associate Dean for Research, Altshuler Distinguished Teaching Professor, and Professor of Law at the Southern Methodist University Dedman School of Law. She writes at the intersection of criminal law and procedures, torts, and law and science.
The full paper can be accessed here.
Additional Reading: Is It a ‘State Secret’ If Everyone Knows It?
Andrea Cipriano is a TCR staff writer.