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Eye contact between defendant and witness

By Richard D. Friedman

This blog focuses mainly on what might be called the hearsay aspect of the confrontation right ? that is, on the question of when the confrontation right precludes the use of out-of-court statements against the accused; that is the aspect of the right that was transformed by Crawford, and so the aspect in which there has been the most dramatic recent development But of course another critical aspect of the Confrontation Clause is the question of what the right of confrontation means if the witness does actually come to court to testify. The case discussed here, and another one that I hope to discuss soon in another posting, deal with different questions related to that aspect ? one on the physical nature of confrontation and the other on impeachment for bias.

My former student Craig Chosiad has called to my attention the rather bizarre case of United States v. Kaufman, 2008 WL 4868480 involving a therapist who allegedly kept mentally ill patients essentially as prisoners on a farm and compelled them to engage in extensive activities, some of them sexual, in the nude. At the trial of Kaufman and his wife, the court ordered that the defendants not maintain eye contact with the patient-witnesses. Defense counsel did not object, so the question on appeal was whether this was plain error. The Tenth Circuit properly recognized that it might be. Let?s assume that Maryland v. Craig, 497 U.S. 836 (1990), remains good law after Crawford ? an interesting question that will have to be resolved by the Supreme Court. And assume also that Craig applies to unusually vulnerable adults as well as to children ? a pretty good assumption. Then the court can in a proper case take steps to protect a witness from the rigors of being face to face with the accused during cross-examination. But Craig makes clear that such unusual steps are permissible only upon an individualized determination that the witness will likely be traumatized by being brought face to face with the accused. In this case, the trial court made no such individualized finding. It merely issued a blanket ruling that eye contact ? no matter how unthreatening it might be, no matter whether it might awaken the conscience of a witness inclined to perjure herself or be sloppy with the facts ? was not permitted for any of the patient-witnesses.

The reason the appellate court did not go the full distance of holding that the order was plain error was that ultimately it determined that any error was harmless. I think this part of the decision was probably wrong. I?ll suppose that the court was correct as a matter of fact in concluding that it was very unlikely that eye contact would have altered the outcome of the trial. But it appears to me that this was a determination that the court should not have made. As Coy v. Iowa, 487 U.S. 1012 (1988), made clear, when confrontation of a witness is denied, the court may not speculate as to what the impact on the witness would have been, and so on what the witness?s testimony would have been in the end, if confrontation had been permitted. Instead, the court must treat the case as if the witness had not testified. Now of course that involves a certain amount of speculation as well ? what would a jury have done with this lesser body of evidence? ? but in that case at least we don?t have to speculate what the body of evidence before the jury would be. The Tenth Circuit attempted to distinguish Coy, but the grounds struck me spurious.

Full post as published by The Confrontation Blog on December 04, 2008 (boomark / email).