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- B. Disadvantages
In the first place, we do not know if the deciphered messages would be admitted into evidence and if they were not, that would abruptly end any hope for prosecution. It is believed that the defense attorney would immediately move that the messages be excluded, base on the hearsay evidence rule. He would probably claim that neither the person who sent the message (⟨Soviet⟩ official) nor the person who received it (Soviet official) was available to testify and thus the contents of the message were purely hearsay as it related to the defendants. Consequently, in order to overcome such a motion it would be necessary to rely upon their admission through the use of expert testimony of those who intercepted the messages and those cryptographers who deciphered the messages. A question of law is involved herein. It is believed that the messages probably could be introduced in ⟨evidence⟩ on the basis of an exception to the hearsay evidence rule to the effect that the expert testimony was sufficient to establish the authenticity of the documents and they were the best evidence available.
Assuming that the messages could be introduced in evidence, we then have a question of identity. The fragmentary nature of the messages themselves, the assumptions made by the cryptographers in breaking the messages, and the questionable interpretations and translations involved, plus the extensive use of cover names for persons and places, make the problem of positive identification extremely difficult. Here, again, reliance would have to be placed on the expert testimony of the cryptographers and it appears that the case would be entirely circumstantial.
Assuming further that the testimony of the Government cryptographers were accepted as part of the government's case, the defense probably would be granted authority by the court to have private cryptographers hired by the defense examine the messages as well as the work sheets of the Government cryptographers. Also, in view of the fragmentary nature of the majority of these messages, the defense would make a request to have its cryptographers examine those messages which has been unsuccessful in breaking and which are not in evidence on the premise that such messages, if decoded, could exonerate their clients. This would lead to the exposure of Government techniques and practices in the cryptography field to unauthorized persons and thus compromise the Government's efforts in the communications intelligence field. Also, this course of action would act to the Bureau's disadvantage since the additional messages would spotlight individuals on whom the Bureau has pending investigations.
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