Can You Testify Under Disguise?

A federal appeals court recently addressed an unusual issue: Can a witness testify under disguise?

In that case, a confidential informant was testifying against an alleged drug dealer and asked to testify while wearing a disguise -- the reason being that the informant was still an active member of a drug cartel and feared that revealing his identity would endanger his life.

So the judge allowed the witness to testify while wearing a wig and a fake moustache. But was this disguise fair for the defendant?

Constitutional Issues

There are two potential constitutional issues with allowing a witness to testify in disguise. They deal with two clauses in the Constitution: (1) the Confrontation Clause and (2) the Due Process Clause.

First, the Confrontation Clause, found in the Sixth Amendment, generally allows a criminal defendant to "confront" his accusers. This doesn't mean that the defendant can intimidate them, but it does mean that the defendant must genreally know who his accusers are, and be able to cross-examine them. If a defendant doesn't know who a witness is, he may be able to argue that his right to confront his accusers is being denied.

Second, the Due Process Clause of the Fourteenth Amendment generally guarantees a criminal defendant a fair and unbiased trial. However, if even witnesses are afraid of the defendant, the jury may be swayed into believing that the defendant is so dangerous a man and surely guilty of whatever crime he is charged with.

When Is Testifying Under Disguise OK?

There are not a lot of court opinions about this subject. But at least when it comes to child victims or witnesses, the U.S. Supreme Court has held they can be blocked from the defendant's sight if testifying in the open would cause "severe emotional distress" for the child.

As for adults testifying incognito, the few courts that have ruled on it have found that such a tactic may be OK if it is supported by a strong interest, such as a legitimate fear of the witness being in danger, coupled with assurance that the disguise will not unfairly bias the jury.

Given the constitutional concerns, the Supreme Court may eventually have to make a definitive answer on this issue.

Related Resources:

• Open Issue: The Constitutionality Of Permitting Testimony By A Disguised Witness (Federal Evidence Review)
• Hearsay Exception: Supreme Court Narrows Confrontation Clause (FindLaw's Decided)
• Criminal Trial Overview (FindLaw)
• Browse Criminal Defense Lawyers by Location (FindLaw)