New Bill to Protect Witness Information from Public Disclosure: Does it Run Afoul of the First Amendment?

In the criminal justice system, there is generally a balance that must be struck between the rights of the people and the right for the state or government to interfere with these rights. Many times there must be give and take, especially when a law may or may not align with the rights of the Constitution, in particular, where the system must decide if the benefit that comes from enforcing a law outweighs the possibly abuse that may be present from abandoning the Constitution. The First Amendment, known generally as the freedom of speech, is one of the amendments that continually must balance the interest of this right with other public considerations whose benefit may or may not outweigh the necessity of this right.

The Exemption to Public Disclosure of Witness Information Bill

The Florida legislature has recently introduced a bill that confronts the rights guaranteed to citizens in the First Amendment. The bill proposes an exemption to the First Amendment and dictates that the names of potential witnesses who may have observed the commission of a felony must be withheld from the public record until the statute of limitations has been reached or the trial has been concluded. The law would prevent public disclosure of any identifying personal information about possible witnesses who may be brought in to testify in the case against a criminal defendant. If a statute of limitations is not applicable to the case, then public disclosure is prevented until the prosecution of the felony or 10 years after the offense (which was observed by the witness) has been committed, whichever happens first.

Purpose Behind the Exemption

The purpose behind the bill is not only to first and foremost protect witnesses involved in the case, but also to protect the criminal proceedings from being tampered with by ensuring that witnesses are able to participate in the proceedings without threats, intimidation, or the fear of public condemnation. Past practices that release the names of witnesses to the public have led to significant issues of cyberbullying (not only by the criminal defendant but by the public) and the withholding by the witness of full cooperation and truthful testimony as a result of intimidation and possible threats to livelihood, reputation, and personal safety.

Also, there may be a greater number of witnesses who come forward or report the incident in the first place, if there is a guarantee that their identities will not be publicly disclosed. This could lead to an increased number of arrests and convictions. Currently, the law only protects vulnerable populations, such as minors involved with an offense, from public disclosure, and in certain areas, witness names are generally shielded during an active investigation, but are then later released during discovery.

The Conflict with the First Amendment and Confrontation Clause

Not only does this bill create controversy with the First Amendment, it also flies in the face of the criminal defendant’s right to confront his/her accuser, known as the Confrontation Clause in criminal proceedings. Opponents, however, argue that this issue is null as the criminal defendants and their advocates will already have a list of potential witnesses at the beginning of the criminal proceedings, therefore negating the effect that exempting the names from the public record in the first place. Advocates of the bill still believe that disclosing personal information about potential witnesses to the public has a number of its own related issues that may keep witnesses from coming forward in the first place, and a measure like this outweighs the threat to the First Amendment.

Experienced Criminal Defense Attorney in Fort Lauderdale

Witnesses have an important role in a criminal defendant’s criminal proceeding, either to prove innocence or guilt of the criminal defendant. An experienced defense attorney like Kevin J. Kulik can help you and your case by finding witnesses that are beneficial to proving your innocence, as well as, advocating on your behalf throughout your trial. Contact Kevin J. Kulik today for a free and confidential consultation in the Fort Lauderdale area.