Face-to-ski mask: a defendant’s right to confront his cat burglar

Do you feel lucky?

Do you feel lucky?

I’m not quite sure how to introduce this story (and the case that it covers) in a pithy manner, so I’m just going to get to it: New Hampshire’s Supreme Court recently ruled that it’s okay for a police officer to testify at a criminal trial while wearing a ski-mask to protect his identity because he was working in an undercover unit at the time of the trial.

Yes, you read that right. In State of New Hampshire v. Jose Hernandez, a police officer who had conducted an interview with the complaining witness was permitted to sit there like a cat burglar, with a ski mask on his face. The State’s reasoning – bought by the trial court – was that the officer’s identity needed to be protected. Nevermind the fact that the jury viewed the interview with the complainant in which his face was uncovered and that everyone knew his name. Oh and that pesky Confrontation Clause thing.

Let’s look at that. The Confrontation Clause provides that:

In all criminal prosecutions, the accused shall enjoy the right to [...] be confronted with the witnesses against him.

Federal court decisions have interpreted this to mean eyeball-to-eyeball confrontation. The confrontation clause affords the criminal defendant two types of protections: “the right physically to face those who testify against him, and the right to conduct cross-examination.” Pennsylvania v. Ritchie, 480 U.S. 39 (1987). And there’s a reason for this. The accuser, or any other witnesses on the accusers behalf, should have to face not only the defendant, but the jury that is deciding the defendant’s fate. The jury should have the opportunity to observe the witness and the witnesses reactions and demeanor.

The Connecticut Supreme Court has not yet considered (that I could find) whether a witness testifying in disguise violates the Confrontation Clause. It has, however, considered whether an accuser can testify outside the presence of the defendant and not in court. In State v. Jarzbek, the Court permitted the videotaping of a minor who had accused the defendant of sexual abuse. While the court in Jarzbek ultimately permitted the introduction of videotaped testimony instead of live testimony at the trial, the jury had the opportunity to observe the demeanor of the complainant. Jarzbek, however, emphasized the importance of having the ability to look the accuser (or by extrapolation a witness) in the eye and having that witness face the jury:

As the United States Supreme Court has asserted, a defendant’s “literal right to `confront’ the witness at the time of trial … forms the core of the values furthered by the Confrontation Clause.” California v. Green, 399 U.S. 149, 157 (1970); Delaware v. Fensterer, supra; Davis v. Alaska, supra, 315; Dowdell v. United States, 221 U.S. 325, 330 (1911). The clause was originally conceived as a safeguard “to prevent depositions or ex parte affidavits … being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox v. United States, 156 U.S. 237, 242-43 (1895); see also 5 J. Wigmore, Evidence (3d Ed. 1940) §§ 1365, 1367.

The court, in a subsequent case analyzing Jarzbek, engages in a thoughtful analysis of the Confrontation Clause and the need for the jury to be able to observe a witness:

Our law is well settled that it is a jury’s duty to determine the credibility of witnesses and to do so by observing firsthand their conduct, demeanor and attitude. See, e.g., State v. Morgan, 274 Conn. 790, 800 (2005). Some of our older cases indicate that fact finders properly may consider not only a witness’ demeanor during his testimony but also his spontaneous reactions in the courtroom, as a whole, provided these considerations are limited to assessing credibility. See Kovacs v. Szentes, 130 Conn. 229, 233 (1943); State v. McLaughlin, 126 Conn. 257, 264-65 (1939). A jury’s assessment of a witness’ credibility also naturally and rightly may include observations of his reaction to having to confront the defendant physically and to testify in an open and public forum. See State v. Jarzbek, supra, 204 Conn. 683, 692-93 (1987) (confrontation clause “finds its modern justification in the perceived role that physical confrontation plays in the truth-seeking process”), cert. denied, 484 U.S. 1061 (1988).  We have observed that the confrontation clause was conceived as a means of providing the accused with “an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” (Emphasis added; internal quotation marks omitted.) Id., 692. Therefore, we conclude that, to the extent that the jurors formed opinions as to Ford’s credibility by observing his demeanor on the stand and his spontaneous reactions in the courtroom, they acted properly. Such observations and the rational inferences drawn therefrom are not prejudicial. See State v. Porter, 241 Conn. 57, 120 (1997) (“forming impressions and intuitions regarding witnesses is the quintessential jury function”), cert. denied, 523 U.S. 1058, (1998).

The court, however, has applied the rationale of permitting unmasked out-of-court testimony to cases of sexual abuse of minors and only on the rationale that the State has a compelling interest in protecting child victims and encouraging their participation in the criminal justice system. Even then, it is a determination to be made on a case-by-case basis. The New Hampshire Supreme Court in Hernandez seems to buy into a similar compelling need to protect the identity of undercover officers, but in my opinion, at the grave expense of the Confrontation Right. That court relies on Coy v. Iowa and Maryland v. Craig and crafts another case-by-case test for permitting witnesses to testify in disguise. But Coy dealt specifically with the defendant’s absence from the presence of the accuser and again in a child-sex case. The Supreme Court in Craig did hold that the right to face-to-face confrontation was not indispensable and that the requirements of the Confrontation Clause:

may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.

In doing so, according to the NH Supreme Court, the Craig court focused on four factors:

(1) physical presence; (2) oath; (3) cross-examination; and (4) observation of demeanor by the court, defendant and trier of fact.

In holding that permitting the police officer to testify in disguise constituted harmless error in this case, but may be permitted in other cases, the NH court seems to explicitly ignore (4) above. Who knows if the detective is smirking under that ski-mask, knowing that he’s lying through his teeth and the jury is unable to observe that. Again, it is important to note that Craig again dealt with the physical presence of a defendant and the impact and trauma that might have on a child victim. None of these cases speak to permitting a witness to testify, in court, with his or her face hidden.

Given my reading of Jarzbek, Coy and Craig, I think the Connecticut Supreme Court would be hard pressed to agree with New Hampshire’s august tribunal, but I’m usually wrong when it comes to things like this.

Two side notes: The newspaper story covering the NH decision includes the usual quotes from law enforcement about how the primary focus should be the safety of the officers, not the Constitutional rights of an accused. So make sure you read it if you want to get all indignant.

Second, the dissent by Scalia in Craig is certainly worth the time it would take to read it. Here’s a sampling:

According to the Court, “we cannot say that [face-to-face] confrontation [with witnesses appearing at trial] is an indispensable element of the Sixth Amendment’s guarantee of the right to confront one’s accusers.” Ante, at 849-850. That is rather like saying “we cannot say that being tried before a jury is an indispensable element of the Sixth Amendment’s guarantee of the right to jury trial.” The Court makes the impossible plausible by recharacterizing the Confrontation Clause, so that confrontation (redesignated “face-to-face confrontation”) becomes only one of many “elements of confrontation.” Ante, at 846. The reasoning is as follows: The Confrontation Clause guarantees not only what it explicitly provides for — “face-to-face” confrontation—but also implied and collateral rights such as cross-examination, oath, and observation of demeanor (TRUE); the purpose of this entire cluster of rights is to ensure the reliability of evidence (TRUE); the Maryland procedure preserves the implied and collateral rights (TRUE), which adequately ensure the reliability of evidence (perhaps TRUE); therefore the Confrontation Clause is not violated by denying what it explicitly provides for — “face-to-face” confrontation (unquestionably FALSE). This reasoning abstracts from the right to its purposes, and then eliminates the right. It is wrong because the Confrontation Clause does not guarantee reliable evidence; it guarantees specific trial procedures that were thought to assure reliable evidence, undeniably among which was “face-to-face” confrontation. Whatever else it may mean in addition, the defendant’s constitutional right “to be confronted with the witnesses against him” means, always and everywhere, at least what it explicitly says: the “`right to meet face to face all those who appear and give evidence at trial.’”

Sometimes, he’s so good that it hurts.

According to the Court, “we cannot say that [face-to-face] confrontation [with witnesses appearing at trial] is an indispensable element of the Sixth Amendment’s guarantee of the right to confront one’s accusers.” Ante, at 849-850. That is rather like saying “we cannot say that being tried before a jury is an indispensable element of the Sixth Amendment’s guarantee of the right to jury trial.” The Court makes the impossible plausible by recharacterizing the Confrontation Clause, so that confrontation (redesignated “face-to-face confrontation”) becomes only one of many “elements of confrontation.” Ante, at 846. The reasoning is as follows: The Confrontation Clause guarantees not only what it explicitly provides for — “face-to-face” confrontation—but also implied and collateral rights such as cross-examination, oath, and observation of demeanor (TRUE); the purpose of this entire cluster of rights is to ensure the reliability of evidence (TRUE); the Maryland procedure preserves the implied and collateral rights (TRUE), which adequately ensure the reliability of evidence (perhaps TRUE); therefore the Confrontation Clause is not violated by denying what it explicitly provides for — “face-to-face” confrontation (unquestionably FALSE). This reasoning abstracts from the right to its purposes, and then eliminates the right. It is wrong because the Confrontation Clause does not guarantee reliable evidence; it guarantees specific trial procedures that were thought to assure reliable evidence, undeniably among which was “face-to-face” confrontation. Whatever else it may mean in addition, the defendant’s constitutional right “to be confronted with the witnesses against him” means, always and everywhere, at least what it explicitly says: the “`right to meet face to face all those who appear and give evidence at trial.’”

3 thoughts on “Face-to-ski mask: a defendant’s right to confront his cat burglar

  1. Mark Bennett

    Thanks for the pointer to the Scalia dissent.

    To say that a defendant loses his right to confront a witness when that would cause the witness not to testify is rather like saying that the defendant loses his right to counsel when counsel would save him, or his right to subpoena witnesses when they would exculpate him, or his right not to give testimony against himself when that would prove him guilty.

    Reply
  2. Pingback: The defendant’s right to confront a mustache | a public defender

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