Thursday, December 04, 2008

Eye contact between defendant and witness

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.


Steven Yermish said...

Professor Friedman:
I agree with your analysis except with respect to the "harmless error" comment. It seems that the Court in Kaufman was simply applying the plain error prejudice standard and burden, instead of the harmless error standard and burden that would have applied had trial counsel made a timely objection.
It also seems that the court was saying that if it had to apply the harmless error standard and burden, the outcome may have been different. [See the court's comments under headnote 10, at *14].

Richard D. Friedman said...

Belatedly -- sorry. Steven is certainly right in part, but it doesn’t change at least part of my bottom line the Kaufman court distinguished Coy on spurious grounds – and perhaps none at all.

Yes, the court says that in Coy the prosecution had the burden of showing that error was harmless beyond a reasonable doubt, whereas in this case the defendants, not having raised the objection at trial, had the burden of showing prejudice as part of the plain error inquiry. But the question remains how a court should go about determining whether error in denial of the confrontation right was prejudicial.

In Coy, the Supreme Court said that in determining whether error in denial of the confrontation right was harmless, it is not proper to speculate that providing the confrontation right would not have had any effect; instead, the reviewing court must examine the situation as if the witness had not testified. Perhaps the same principle should not apply when plain error is the governing standard, on the basis that the defendant’s failure to object has created the need for speculation, but this is not clearly so. Under the plain error standard as articulated by the Kaufman court, the question of whether error was prejudicial becomes important only if the error was “egregious.” And if it is, then arguably the court should go about determining prejudice in the same way as if the defendant had objected – that is, without speculating that adhering to the confrontation right would not have made a difference.

In any event, before it distinguished the harmless and plain error standards, the Kaufman court distinguished the situation in Coy, and I continue to think the distinction was spurious. It said that in Coy the defendant and jury could not see the witness, and the witness could not see the defendant, and that in Kaufman’s case that was not so. True enough, but I don’t think this affects the question at hand: Assuming there is a confrontation violation, can a reviewing court speculate that without the violation nothing would have changed? I think Coy should be read as making a general pronouncement that the answer to this question is negative. Significantly, the two cases relied on by the Kaufman court on this point are not harmless (or plain) error cases they are habeas cases determining that there was no clear violation of the confrontation right in the first place.