Secret evidence is used in US immigration hearings, shown only to the judge by prosecutors. Defendants and legal representation cannot review or dispute the information. The Sixth Amendment does not protect immigration hearings, and the use of secret evidence was expanded in 1996. The Secret Evidence Repeal Act was introduced in 1999 but disappeared after the 9/11 attacks and the Patriot Act. There are still efforts to end the use of secret evidence or allow defendants to have a security-cleared attorney.
Secret evidence is a type of evidence that can be used in court hearings, primarily in United States (US) immigration hearings, which is considered classified and not presented in court. This type of evidence is typically only shown to the judge by prosecutors, all of whom are 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 decision, but the defendant and any legal representation they may have are not allowed to review or dispute the information contained in that evidence.
In the United States, a person’s legal right to confront his or her accuser and to be aware of any evidence used against him or her is guaranteed by the United States 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 Anti-Terrorism and Effective Death Penalty Act of 1996. Under this law, secret evidence they may be used in an immigration hearing where the evidence used against the defendant is classified and cannot be securely disclosed in a public hearing.
In the years immediately following the passage of this law, secret evidence was used in numerous cases resulting in numerous individuals being denied legal admission or citizenship to the United States and often resulting in government detention of such individuals of the United States. The problem with using this type of evidence, however, is that there is no one to guarantee that the evidence is accurate or applicable at the hearing. For example, it was found that the evidence in a number of situations was given by a former lover of the abandoned defendant, or was hearsay or even double hearsay, without any corroboration.
After a number of detained immigrants were released following more thorough 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 eventually disappeared following the terrorist attacks against the United States on September 11, 2001 and the passage of the Patriot Act, which also allowed government officials to continue using evidence secret in immigration cases. However, there are still efforts to end the use of such evidence, or at least to allow defendants in these cases to have a security-cleared attorney represent their interests and review the evidence.
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