EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, March 24, 2011

Article Of Interest: Marc McAllister's The Disguised Witness and Crawford's Uneasy Tension with Craig: Bringing Uniformity to the Supreme Court's Confrontation Jurisprudence

A defendant is on trial. A prospective eyewitness does not want to testify against the defendant for fear of reprisal. But the witness might be willing to testify under one condition: He be allowed to testify while wearing a disguise. Should this witness be able to wear sunglasses, a hat, a wig, and/or some other disguise while on the witness stand, or would such a disguise violate the defendant's rights under the Confrontation Clause? Until 2004, this question was answered pursuant to the Supreme Court's opinion in Maryland v. Craig, 497 U.S. 836 (1990), which set forth a two-part test to govern potential exceptions to the Clause's face-to-face requirement. According to Craig, "a physical, face-to-face confrontation [may be dispensed with] at trial [1] only where denial of such confrontation is necessary to further an important public policy and [2] only where the reliability of the testimony is otherwise assured."

In Crawford v. Washington, 541 U.S. 36 (2004), however, the Supreme Court condemned judicial reliability assessments, concluding that "[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." So, did Crawford kill Craig? And, if it did, does that mean that courts can no longer allow witnesses to testify in disguise based upon judicial reliability assessments?

According to the recent article, The Disguised Witness and Crawford's Uneasy Tension with Craig: Bringing Uniformity to the Supreme Court's Confrontation Jurisprudence, 58 Drake L. Rev. 481 (2010), by Marc C. McAllister, an Assistant Professor at the Florida Coastal School of Law, the answer is "not necessarily." You see, in Crawford, the court overruled the "adequate indicia of reliability" test from Ohio v. Roberts, 448 U.S. 56 (1980), noting in the process that

The Roberts test allows a jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability. It thus replaces the constitutionally prescribed method of assessing reliability with a wholly foreign one. In this respect, it is very different from exceptions to the Confrontation Clause that make no claim to be a surrogate means of assessing reliability. For example, the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability.

Professor McAllister's proposal is that the prosecution should be able to present the testimony of disguised witnesses if the defendant caused the prospective witness' fear of testifying without one. According to Professor McAllister,

Consistent with recent Confrontation Clause jurisprudence, the defendant should forfeit his confrontation right in...cases...in which the prosecution presents sufficient evidence to establish a legitimate fear of the defendant. Under this proposal, the defendant's right would be forfeited not because of some asserted governmental necessity, but rather because the defendant's intentional misconduct created the claimed fear. This proposal would not require a Craig-based judicial exception, but would instead be premised upon the common law forfeiture-by-wrongdoing doctrine. By abandoning Craig and operating entirely within the Crawford framework, this proposal would be fully consistent with Crawford and its progeny.

And, according to Professor McAllister,

In many cases, my proposal would be advantageous to both prosecution and defense. From the prosecution's view, permitting the witness to testify in disguise is a better alternative than losing the evidence entirely. From the defense perspective, permitting the witness to testify in minimal disguise is a better alternative than a complete forfeiture of the confrontation right via admission of the witness's out-of-court testimonial statements in the absence of any confrontation, as authorized by Giles. Under this proposal, rather than the defendant completely forfeiting his confrontation right, the witness would remain subject to contemporaneous cross-examination, albeit in partial disguise.

I think that Professor McAllister's proposal makes a great deal of sense and highly recommend the article to readers (I also think that the proposal supports the argument in my recent article, Avoiding a Confrontation?, that the Bruton doctrine was not restricted by Crawford because Bruton is not based upon a judicial reliability assessment). I asked Professor McAllister what led him to write the article, and he responded:

I began researching this particular issue back in 2006, and the culmination of that research was an initial article dealing with the use of two-way videoconference testimony in criminal trials.  As I began thinking and writing about that particular issue, I realized that the right of confrontation, as reflected in the Sixth Amendment's Confrontation Clause, is actually a multi-layered and complex issue that requires more careful analysis of each particular, underlying layer of analysis.  When I returned to this issue in 2009, my goal was to write an article that began with a particular legal issue as the springboard to a discussion of the confrontation right's deeper layers, and to show how that particular issue is necessarily impacted by the multiple layers of analysis.  I chose the disguised witness issue as my springboard to these deeper layers.  In my view, we cannot fully understand the confrontation implications of a particular form of testimony until we first settle upon the true meaning of "confrontation" itself.  Thus, my goal in writing the disguised witness article was to uncover each layer of confrontation analysis, then show how the analysis at each layer impacts the layers above.  In the case of the disguised witness, there is the initial layer of whether wearing a disguise in court sacrifices the underlying confrontation values of testimony under oath, observation of demeanor, cross-examination, and physical face-to-face confrontation between the accuser and the accused (i.e., the essence of the Craig test).  However, at a deeper layer, there is the notion of whether the confrontation right is only concerned with ensuring cross-examination, or whether it necessarily requires a literal "face-to-face" meeting between accuser and accused.  Further, if the confrontation right is only concerned with ensuring cross-examination, does that requirement embody the idea of "effective" cross-examination?  If so,  what exactly makes cross-examination "effective?"  In my article, I argued that cross-examination alone is not enough, and that some critical aspect of confrontation is lost when we remove the element of a literal "face-to-face" meeting between accuser and accused.  In this portion of the article, I sought to demonstrate that the Framers' understanding of confrontation was more complex than the understanding of confrontation espoused by such influential writers as Wigmore.  At another level, there is the idea, expressed in Crawford, that confrontation is a procedural rather than a substantive right -- i.e., that the right is more about ensuring the procedure of confrontation, rather than ensuring the reliability of the resulting evidence.  Even if we assume the procedural view is correct, we still must determine the essence of the confrontation right (i.e., what exactly makes the procedure of confrontation "effective"), which I believe requires both an opportunity for cross-examination and a physical, "face-to-face" meeting.  Once these principles of confrontation are established, we can then return to the initial question of whether a witness who testifies in disguise runs afoul of a defendant's right to confront that witness.  Again, I believe the matter is far more complex than it first appears.  Moreover, much like the ongoing debate in Fourth Amendment analysis between the "reasonableness" view and the "warrant requirement" view, I believe we cannot arrive at the "correct" answer to any confrontation issue until we first resolve the very essence of "confrontation" itself.  I believe I was able to capture these principles in my disguised witness article.

He also provided me with the following abstract of the article:

In 2004, the United States Supreme Court established a new Confrontation Clause jurisprudence in Crawford v. Washington, a ruling which foreclosed the use of much previously admissible out-of-court statements and which generated a vast response from courts and commentators.  While much has been written regarding Crawford's effect upon out-of-court testimonial statements, few commentators have addressed Crawford's impact upon in-court testimony.  This article is among the first to address this issue.

This article considers Crawford's impact upon Maryland v. Craig, the case which generally governs in-court testimony confrontation challenges, by specifically examining the constitutionality of testifying in disguise.  Surprisingly, this issue has never been addressed by the Supreme Court.  The few lower court opinions considering this issue have routinely applied the Craig test; that test, however, employs a reliability-based framework reminiscent of the test overruled by Crawford, and this article contends that the Craig test would similarly offend the current Court. 

With Craig's constitutionality in doubt, this article considers what test might replace Craig.  The ultimate resolution of this issue would depend upon the importance a court attaches to the two guarantees underlying the confrontation right: the right to confront adverse witnesses face-to-face, and the right to cross-examine such witnesses.  Over time, judges and historians have equated the right of "confrontation" with the literal right to meet one's accusers "face-to-face," while others have deemed the right synonymous with the opportunity for cross-examination.  In 1988, for example, the Supreme Court described "the irreducible literal meaning of the Clause" as "[the] right to meet [trial witnesses] face to face."  Just two years later, however, the Court retreated from this view and declared that "face-to-face confrontation . . . is not the sine qua non of the confrontation right."  More recently, the Crawford ruling appeared to solidify cross-examination as the Clause's primary guarantee. 

After examining the Confrontation Clause's text, the right's common law roots and underlying purposes, and the Supreme Court's many pronouncements on this issue, this article concludes that the Clause's face-to-face requirement is an indispensable aspect of confrontation.  Following the principles of Crawford, today's Court would thus replace Craig's reliability-based analysis with a more literal confrontation right: one that ensures both cross-examination and face-to-face confrontation. 

With these principles in mind, this article revisits the disguised witness issue.  While I argue that Crawford's interpretative principles would prohibit the wearing of nearly any disguise, I conclude by advocating an exception to this general rule.  Under my proposed exception, the common law's forfeiture-by-wrongdoing doctrine, which the Court recently applied to out-of-court statements, should be extended to courtroom manner-of-testimony issues as well, and should authorize the wearing of limited disguises where the witness' genuine safety concerns arise from the defendant's deliberate acts of intimidation.




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