7/27/2016 10:54:00 AM,
FT. MEADE, Md. (CN) — A constitutional question of whether sealed death certificates of the 9/11 victims can be admitted as evidence took center stage Tuesday in pretrial hearings for the five men accused of plotting the hijackings.
The prosecution team wants a military judge to pre-admit the 2,976 death certificates as evidence and to consider them public records — which are exempt from hearsay evidence prohibitions, prosecutor Ed Ryan said in court.
But the defense team called the move unconstitutional.
The government is cutting corners and doing "an end-around the Sixth Amendment and Confrontation Clause" in trying to submit the death certificates without cross-examination, said Edwin Perry, defense attorney for suspected al-Qaida leader Walid bin Attash.
Hearsay evidence is secondhand testimony that federal courts mostly reject because it deprives one party of the right to cross-examine witnesses and challenge their testimony, a right the Confrontation Clause guarantees.
However, the use of hearsay evidence in terrorism cases happens more frequently, sometimes because little other evidence exists or collecting alternative non-hearsay evidence is too burdensome.
Ryan said the certificates will help prove that the 2,976 people died on Sept. 11, 2001, were victims of the attacks, which is why the prosecution wants them admitted.
However, the death certificates contain other information like cause of death, which the defense team says could actually violate hearsay rules despite hearsay exceptions for public records.
A 2004 Supreme Court ruling in Crawford v. Washington gave criminal defendants the right to challenge out-of-court statements that prosecutors want to use against them as evidence even if the statements are deemed adequately reliable, which was the prior rule.
Ryan argued, however, that the primary purpose of death certificates is not criminal prosecutions or criminal investigations. As such, they constitute non-testimonial hearsay, which exempts them from the Crawford prohibition, he said.
But the defense wants witnesses called. Perry says the author of each document — possibly coroners and judges — would need to be cross-examined to authenticate the documents.
Ryan, however, says the death certificates contain certificates of authenticity that say they were prepared to satisfy evidence rules. He argued that the judge has discretion.
"Evidence shall be admitted as authentic if the judge determines there is sufficient basis to find that the evidence is what it is claimed to be. The jury is then instructed that it can attach whatever weight it sees as fit," Ryan said, reading from the Military Commission's evidence rule.
That is the only requirement under that rule, Ryan added, noting that it is different from federal and court-martial hearsay rules.
But Perry says the Confrontation Clause applies at Guantanamo, and that the D.C. Circuit considers death certificates and autopsy reports testimonial hearsay. That the government wants to use the death certificates to prove a fact triggers the Confrontation Clause, he said.
The 9/11 trial judge, Army Col. James L. Pohl, asked if that means that every piece of evidence submitted by the government becomes testimonial.
Perry responded that the death certificates contain statements about what occurred, when it occurred and how it occurred.
"That requires someone to be subject to cross-examination at that point. It is not enough that there may be a hearsay exception," he said.
Perry argued that the Military Commissions Act says access to witnesses and evidence should be comparable to Article III courts: the Supreme Court, federal appeals courts, district courts and the Court of International Trade.
If Pohl agrees with the prosecution on this issue, he will be ruling that the full effect of the Sixth Amendment and the Confrontation Clause do not apply at Guantanamo the same way they do in Article III courts, Perry said.
Pohl probed further on the issue.
"You said when Congress set up the military commissions, they intended that all of the Sixth Amendment rights apply. Did they really do that or did they make some hearsay exceptions that clearly would not meet Sixth Amendment analysis?" Pohl asked.
According to Pohl's reading of the Military Commissions Act, Congress did not want Sixth Amendment rights under Crawford to apply strictly to Guantanamo proceedings, which he acknowledged later could be an unconstitutional provision.
Perry said that the issue is a matter of first principles.
"Congress cannot enact a statute that provides less than the Sixth Amendment. The Sixth Amendment is primary," he said.
Jim Harrington, defense attorney for suspected terrorist Ramzi bin al-Shibh, posited a middle road: Redact the death certificates to remove all testimonial information from them.
Ryan said the New York City medical examiner prepared 1,627 death certificates for positively identified remains, and prepared 1,122 pursuant to court orders for World Trade Center victims whose remains were never found.
The Commonwealth of Virginia prepared death certificates for 178 identified Pentagon victims, Ryan said. Of the five Pentagon victims whose remains were not found, Arlington County Circuit Court prepared court orders for four of them, while the Army issued a report of casualty for the fifth, Ryan added.
The District of Columbia issued the death certificate for the 184th Pentagon victim, while Pennsylvania's Somerset County coroner issued death certificates for all 40 Flight 93 victims, whose remains were all identified.