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Costumed Turncoat's Testimony Doesn't Cross Confrontation Clause

By William Peacock, Esq. | Last updated on

The Confrontation Clause guarantees a defendant the right to face his accuser face-to-face. A witness's appearance, eye contact, and voice all affect her credibility in front of the jury or finder of fact. A clear view of the witness, therefore, is essential to a fair trial.

On the other hand, no right is absolute, even in this pantheon of liberty that is America. In Maryland v. Craig, the need to protect child victims justified the use of a one-way closed circuit television to present testimony to the court. The judge, jury, and parties could see the testifying child victim, but the victim did not have to face their alleged tormentor.

What about a witness in disguise? The witness here was a confidential informant who was still working inside the Sinaloa Cartel. Revealing his identity would have endangered his life. The defendant requested that the courtroom be sealed. Instead, the court allowed him to wear a wig and a fake moustache. He probably looked something like this:

Entourage - Vince in a Fat Suit
Entourage's Vincent Chase in a poorly-done fat suit

While this was a case of first impression for the Ninth Circuit, and no Supreme Court precedent exists on costumed crusaders (or confidential informants), other courts have addressed the issue with mixed results.

In Texas, a witness was allowed to testify with a baseball cap pulled down, sunglasses stuntin', and his mouth covered. The only greater disguise would have been a burka. That was held to violate the Confrontation Clause by the Texas Court of Criminal Appeals.

Both the Texas court in Romero and the Ninth Circuit here adopted a test from Craig to determine whether a disguise violates the Confrontation Clause. "Namely, courts should consider whether the disguise furthers an important state interest and whether the reliability of the evidence could be otherwise assured."

Reliability can be assured in a number of ways, but a disguise such as the one used in Texas prevents the parties and the jurors from making eye contact with the witness and from reading his facial expressions. Unlike the Texan's disguise, the eyes and mouth of the witness here were unobstructed. Jurors could make the requisite credibility determinations, so long as they weren't too distracted by the fake mustache.

The disguise does present another issue, however. Since there was no limiting instruction, the use of a disguise might give rise to prejudice against the defendant. Jurors could infer that the disguise is needed to protect the witness from the defendant. They could also ascribe undue importance and credibility to the witness, as that person is so important to the police that they are keeping him disguised.

Nonetheless, the defendant here was so absolutely guilty that the Ninth Circuit held that the possible prejudice, if any, was harmless error. There was videotape of the drug deal (ten pounds of meth), testimony from a witness, and the defendant's own contradictory testimony that all supported the conviction beyond a reasonable doubt.

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