Open Issue: The Constitutionality Of Permitting Testimony By A Disguised Witness

Ninth Circuit considers issue of "first impression" concerning whether a confidential informant wearing a disguise (including “a wig, sunglasses, and mustache") during his testimony violated the defendant's Confrontation Clause and Due Process rights; few cases have considered the issue; circuit concludes that there "was no violation of the Confrontation Clause" based on witness safety concerns "and any due process violation was harmless," in United States v. Jesus-Casteneda, 705 F.3d 1117 (9th Cir. Jan. 30, 2013) (No. 11-10397)

The opportunity for the jury to view and evaluate the demeanor of a witness is often essential to determine credibility. Under what circumstances may a witness wear a disguise while testifying for safety reasons? The Ninth Circuit recently considered “an issue of first impression … whether a witness’s testimony in disguise at trial violates the Confrontation Clause.”

In the case, defendant Jesus-Casteneda was charged with possession with intent to distribute methamphetamine delivering a methamphetamine to undercover agents at a warehouse. At trial, the government requested that a confidential informant (CI) be permitted to “wear a wig, sunglasses, and mustache during his testimony to ‘help disguise some of his features’ due to the “inherent dangers involved in this particular case.’” In particular,

The government said the CI was involved in investigations with the “dangerous” Sinaloa Cartel, and that a disguise would “accommodate the public nature of this courtroom and yet hopefully protect [his] identity.” Defense counsel objected, contending the CI’s sunglasses might conceal facial expressions going towards his credibility, and suggesting the court instead “mak[e] sure he comes in through a secure location, secure door, and seal the courtroom.” The court ruled this was “not even a close question,” the reason for the disguise was “obvious,” and that when weighed against the “risks that have been presented,” the disguise was a “very small impingement . . . on the ability of the [jury] to judge [the CI’s] credibility.” The CI was ultimately permitted to testify while wearing a fake mustache and wig but no sunglasses; his eyes remained visible. On direct examination, the CI stated he was testifying in a fake mustache and wig. Defense counsel did not ask for a curative instruction which would inform the jury that they should not draw any negative inferences against the defendant from the disguise.

Jesus-Casteneda, 705 F.3d at 1119.

Following his conviction, the defendant appealed contending his Confrontation Clause and Due Process rights were violated.

The Ninth circuit held that “there was no violation of the Confrontation Clause and any due process violation was harmless.” Jesus-Casteneda, 705 F.3d at 1119. There was no Supreme Court or Ninth Circuit case addressing the issue. However, the circuit found the legal standards applied in two state court and a Second Circuit decision persuasive:

  • Romero v. State, 173 S.W.3d 502, 505 (Tex. Crim. App. 2005) (“An encroachment upon face-to-face confrontation is permitted only when necessary to further an important public interest and when the reliability of the testimony is otherwise assured.”; concluding “a very close issue” that the Confrontation Clause was violated by the testimony of a witness wearing a disguise) (footnote omitted)
  • State v. Hernandez, 986 A.2d 480, 487–88 (N.H. 2009) (“we hold that the State has met its burden of proving that any error in allowing the detective to testify while wearing a ski mask was harmless beyond a reasonable doubt”; “we hold that, in the future, when a trial court is considering whether to allow a prosecution witness to testify while wearing a disguise, such as a mask, the court must make specific findings that the disguise is necessary to further an important State interest and that the reliability of the evidence is otherwise assured”)
  • Morales v. Artuz, 281 F.3d 55, 60–62 (2d Cir. 2002) (“we doubt that permitting Sanchez to testify behind dark sunglasses was contrary to constitutional law established by the Supreme Court, but even if the law of the Confrontation Clause, as established by the Supreme Court, is, as the Appellant contends, a generalized right to face-to-face confrontation, the state courts did not make an unreasonable application of such law”).

Ironically, these rulings were divided on whether constitutional error resulted from the disguise.

As the Ninth Circuit explained:

Applying that rule here, the CI’s disguise in the form of a wig and mustache was necessary to further an important state interest, namely a witness’s safety. The government offered reasons for protecting the CI’s identity, given his continuing involvement in Sinaloa Cartel drug investigations as an undercover agent. Second, the reliability of the CI’s testimony was otherwise assured, because (1) he was physically present in the courtroom, (2) he testified under oath, thus impressing him with the seriousness of the matter and the possibility of penalty for perjury, (3) he was subject to cross-examination while Appellant could see him, (4) despite his disguise, the jury was able to hear his voice, see his entire face including his eyes and facial reactions to questions, and observe his body language. These are all key elements of one’s demeanor that shed light on credibility. Thus, we hold that in this case, the disguise in the form of a wig and mustache did not violate the Confrontation Clause.

Jesus-Casteneda, 705 F.3d at 1121 (citations omitted).

The Ninth Circuit also considered whether the disguise could violate due process:

[W]e recognize that a witness’s testimony in disguise might give rise to a due process violation in certain circumstances by prejudicing the jury against the defendant. For example, it could give a jury the impression that the defendant must be dangerous if witnesses need to protect their identities from him. Or, it might suggest that the witness in disguise is particularly valuable to law enforcement, and hence is particularly credible. Here, given that Appellant had undisputedly seen the CI in person before trial at the undercover warehouse, an alternative solution might have been to seal the courtroom, thereby protecting the CI’s identity from the public.

Jesus-Casteneda, 705 F.3d at 1121.

However, the circuit found it unnecessary to determine whether due process was violated because any error was harmless beyond a reasonable doubt based on a video of the delivery, agent testimony and other evidence.

Few cases have considered the issue presented in Jesus-Casteneda. The courts that have done so have noted a close issue is presented or in the alternative found that any error was harmless. Whether the Supreme Court ultimately takes up the question likely will depend on further lower court decisions.

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Photo Description: Ninth Circuit Court of Appeals Courthouse in San Francisco, CA.

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