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66 Duke L.J. Online 1 (2016-2017)

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Duke Law Journal Online


VOLUME 66                  NOVEMBER                            2016



    DETERMINING CLASSIFIED EVIDENCE'S
              PRIMARY PURPOSE: THE
 CONFRONTATION CLAUSE AND CLASSIFIED
     INFORMATION AFTER OHIO V. CLARK

                       J. PETER LETTENEYt

                          INTRODUCTION
     Evidence derived from classified national-security information
has long been a part of court proceedings in the United States.' Despite
the longstanding nature of its use, it can pose constitutional issues. The
Sixth Amendment to the Constitution requires that [i]n all criminal
prosecutions, the accused shall enjoy the right.., to be confronted
with the witnesses against him .. .2 The Supreme Court's post-
Crawford v. Washington3 interpretation of the Confrontation Clause,
including its most recent clarification in Ohio v. Clark,4 presents a
theoretical obstacle to introducing such evidence in criminal trials.
Before Crawford, prosecutors were required to show only indicia of
reliability to  support  the  introduction  of  evidence   over  a


Copyright © 2016 J. Peter Letteney.
    t Duke University School of Law, J.D. 2016; University of Pennsylvania, M.S.Ed 2009;
University of Delaware, B.A. 2008. I would like to thank Professor Christopher Schroeder for his
help and advice during the preparation of this Note. Also, thank you to the members of the Duke
Law Journal for their hard work.
   1. See, e.g., S. REP. No. 110-442, pt. 1, at 2 (2008) (stating that the Supreme Court first
addressed the use of the state secrets privilege -which allows the Federal Government to prevent
the disclosure of information which would be harmful to the United States-in United States v.
Reynolds, 345 U.S. 1 (1953)); Note, Secret Evidence in the War on Terror, 118 HARV. L. REV.
1962, 1962 (2005) ([T]he United States has long used [classified] evidence in criminal
prosecutions, military courts-martial and various immigration proceedings.).
   2. U.S. CONST. amend. VI.
   3. Crawford v. Washington, 541 U.S. 36 (2004).
   4. Ohio v. Clark, 135 S. Ct 2173 (2015).

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