San Diego Law Review
Balancing the Anonymity of Threatened Witnesses Versus a Defendant’s Right of Confrontation: The Waiver Doctrine After Alvarado
As this Article will show, the Alvarado holding is very narrow, requiring disclosure only when a witness is crucial to the prosecution and when the witness’s credibility is at issue.
The interesting issue left unresolved by Alvarado is whether the identity of a crucial witness whose credibility is not at issue must be disclosed to the defense at trial when the witness has been threatened and attacked by the defendant or at the defendant’s behest. Or, whether because of that intimidation, the defendant has waived his right of confrontation as to the witness’s identity. This question is ripe for exploration for several reasons. First, as this Article shows, witness intimidation is a national problem. Second, waiver by intimidation
was raised on appeal in Alvarado, but was not fully addressed, and thus not resolved. Third, the doctrine of waiver by misconduct has a long and interesting history, which dates back to the 1600s and continues in use to this date. Last, but not least, this issue is certain to arise in the not so distant future. For all of these reasons, this Article addresses the merits of the waiver doctrine as it relates to this issue. However, before that can be done, it will first be necessary to clarify the limitations of the holding in Alvarado, the nature and scope of the Sixth Amendment right of confrontation, and the nature of witness intimidation and witness rights, and to explore witness protection programs and what alternatives to identity disclosure, if any, exist.
Balancing the Anonymity of Threatened Witnesses Versus a Defendant’s Right of Confrontation: The Waiver Doctrine After Alvarado,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol39/iss4/3