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What is Secret Evidence?

By G. Wiesen
Updated May 16, 2024
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Secret evidence is a type of evidence that can be used in court hearings, principally in immigration hearings in the United States (US), which is considered classified and not presented in open court. This type of evidence is typically shown only to the judge by the prosecutors, who are all sworn to secrecy and must have proper security clearance to see the evidence. The judge in such a case can then use the secret evidence to weigh in his or her decision, but the defendant and any legal representation he or she may have are not allowed to review or challenge the information contained within such evidence.

In the US, a person’s legal right to confront his or her accuser and be aware of any evidence used against him or her is guaranteed by the US Constitution, specifically the Sixth Amendment. Immigration hearings, however, do not have this protection, and the use of secret evidence in these types of hearings was greatly expanded following the 1996 Anti-Terrorism and Effective Death Penalty Act. According to this law, secret evidence can be used in an immigration hearing in which the evidence being used against the defendant is classified and cannot be safely revealed in a public hearing.

During the years that immediately followed the passage of this law, secret evidence was used in a number of cases and led to numerous individuals being denied legal admittance or citizenship into the US and often caused those individuals to be detained by the US government. The problem with the use of this type of evidence, however, is that there is no one who ensures the evidence is accurate or applicable to the hearing. For example, the evidence in a number of situations was found to have been provided by a jilted ex-lover of the defendant, or was hearsay or even double hearsay, with no corroboration.

After a number of detained immigrants were released following deeper investigations into the nature of the secret evidence used against them, a bipartisan effort began in 1999 to end the use of such evidence with the drafting of the Secret Evidence Repeal Act. This act was reintroduced in 2000, but ultimately disappeared following the terrorist attacks against the US on 11 September 2001 and the passage of the Patriot Act, which further allowed government officials to continue using secret evidence in immigration cases. There are still efforts to end the use of such evidence, however, or to at least allow defendants in these cases to have an advocate with security clearance to represent their interests and review the evidence.

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