The defendant’s right to confront a mustache


So you’re reading the Constitution. And the Constitution says many things implicitly and a few things explicitly. And one of those things is that the accused shall have the right to confront witnesses against him face-to-face (Pennsylvania v. Ritchie). What the Supreme Court has never explained is just whose face that has to be.

Yes, that’s an odd statement, so let me explain: the Ninth Circuit ruled today [PDF] that it was okay for a confidential informant to testify in a trial wearing a ridiculous wig and mustache (I’m only assuming the wig was ridiculous; all wigs are ridiculous unless worn for medical purposes) to protect his identity because he was involved undercover with the dangerous Sinaloa Cartel.

Why, exactly, is it important for someone to be able to look at the person testifying against them square in the eye? Why is it even more important for the jury to be able to do that? Justice Scalia, writing in Coy v. Iowa, explains:

The Sixth Amendment’s guarantee of face-to-face encounter between witness and accused serves ends related both to appearances and to reality […] The phrase still persists, “Look me in the eye and say that.” Given these human feelings of what is necessary for fairness, the right of confrontation “contributes to the establishment of a system of criminal justice in which the perception as well as the reality of fairness prevails.” Lee v. Illinois, 476 U. S. 530, 540 (1986).

The perception that confrontation is essential to fairness has persisted over the centuries because there is much truth to it. A witness “may feel quite differently when he has to repeat his story looking at the man whom he will harm greatly by distorting or mistaking the facts. He can now understand what sort of human being that man is.” Z. Chafee, The Blessings of Liberty 35 (1956), quoted in Jay v. Boyd, 351 U. S. 345, 375-376 (1956), (Douglas, J., dissenting). It is always more difficult to tell a lie about a person “to his face” than “behind his back.” In the former context, even if the lie is told, it will often be told less convincingly.

The Confrontation Clause does not, of course, compel the witness to fix his eyes upon the defendant; he may studiously look elsewhere, but the trier of fact will draw its own conclusions. Thus the right to face-to-face confrontation serves much the same purpose as a less explicit component of the Confrontation Clause that we have had more frequent occasion to discuss  — the right to cross-examine the accuser; both “ensur[e] the integrity of the factfinding process.” Kentucky v. Stincer, 482 U. S., at 736. The State can hardly gainsay the profound effect upon a witness of standing in the presence of the person the witness accuses, since that is the very phenomenon it relies upon to establish the potential “trauma” that allegedly justified the extraordinary procedure in the present case. That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs.

I wonder how a jury is to assess a witness’ demeanor when that witness is presented in a distracting disguise. The witness is either essential to the trial or essential to the investigation. Making a mockery out of the system by parading the witness in a fancy dress seems to only ridicule the severity of the consequences at stake.

There’s another problem with permitting witnesses to testify in disguise: it could signal to the jury that the defendant is such a dangerous person that these witnesses must be kept safe from him, thus subconsciously exhorting them to convict him to keep society safe – or that the witness is so trusted and reliable that they need to have him undercover and are willing to go to these lengths.

Pictured here: that one guy from the Cartel who called in sick to work that day that some undercover guy testified at a - waiiiiit a minute!

Pictured here: that one guy from the Cartel who called in sick to work that day that some undercover guy testified at a – waiiiiit a minute!

In either event, due process is being violated. What does the Ninth Circuit panel have to say about that?

it is clear beyond a reasonable doubt that the jury would have delivered a guilty verdict. Chapman v. California, 386 U.S. 18, 23-24  (1967) (holding constitutional error harmless if error did not  contribute to the verdict beyond a reasonable doubt). The evidence included a video showing Appellant delivering the methamphetamine to the warehouse from the car and staying in the warehouse during discussions about a drug-weapons deal, Appellant’s own contradictory testimony regarding whether he knew he possessed the drugs, and Agent Johnny Estrada’s testimony that he saw Appellant deliver the drugs to the warehouse. Thus, any due process violation was harmless.

Oh, okay then. Nevermind. I will admit that this disguise isn’t as bad as what New Hampshire permitted a few years ago when it allowed a witness to testify wearing a ski-mask. When I wrote about it back then, I took a more intellectual approach, so read that post and whatever I said there applies here too.

Top image via this link; bottom image via here – license details there. H/T: Wall Street Journal Law Blog but it’s behind a paywall so I won’t link to them. Fuck ’em.

One thought on “The defendant’s right to confront a mustache

  1. Max Kennerly

    In addition to the ‘testing’ function of live witness testimony, in which we assure that a witness is willing to come to court and, in the presence of the defendant, the judge, and the jury, testify under oath as to their accusations, live witness testimony also gives the judge and the jury the ability to observe verbal and non-verbal cues that don’t come through a transcript or an interview report.

    Off-the-cuff, I can think of several cues, including the speed and tenor of the witness’ voice, the time it takes them to respond to questions and to recall facts, the movement and focus of their eyes, and the many physical movements of which the face, shoulders, arms, hands, and torso are capable, any one of which might indicate to a judge or juror that the witness is either being deceitful or is simply mistaken.

    Even taking all of that for granted, though, I still don’t see how a wig or a mustache really does much to alter the judge and jury’s ability to discern and evaluate those cues. All the verbal cues are the same, the jury can still see their eyes, the jury can still see their body movements, and as far as I can tell, depending on the mustache, the jury can see all the same things with perhaps the exception of a handful of fleeting facial expressions.

    In terms of conveying the wrong impression to the jury, I would hope that the judge would at some point explain that the wig and mustache had nothing to do with the defendant, but rather had to relate to some other irrelevant matter that required the witness maintain anonymity while testifying. Indeed, it might work more as baggage for the testimony than as an implicit indictment of the defendant: the jury could just as well perceive the witness to be a former criminal who has gone into witness protection in exchange for snitching on their former co-conspirators, and the jury might end up weighing that against their testimony.

    Yes, I’m aware that most of my above analysis (minus the facial expressions) applies to the ski mask, too. I sure hope that’s not routine, but I can see making exceptions for it. Bear in mind, right now as I type this I’m in the middle of a city with severe “STOP SNITCHING!” witness intimidation problems, so perhaps that makes me more partial to efforts to protect witness identities.


Leave a Reply