Federal Appeals Court Approves Testimony From Disguised Witness

The Ninth Circuit Court of Appeals in California ruled yesterday that a confidential informant’s testimony at trial in a wig-and-mustache disguise did not violate the Confrontation Clause of the Sixth Amendment.

Jorge Jesus-Casteneda was indicted for his alleged involvement in a weapons-for-drugs conspiracy. Prosecutors alleged that Jesus-Castenada, along with other Mexican nationals with ties to the infamous Sinaloa drug cartel, attempted to trade massive quantities of drugs for various military firepower, including Stinger missiles and anti-tank rockets. Unbeknownst to them, their trading partners were actually undercover agents.

During the trial, the court allowed a key witness for the government – a confidential informant involved in the transactions – to testify wearing a wig and mustache to protect his identity. The defendant’s attorneys objected, arguing that the disguise violated the Confrontation Clause of the Sixth Amendment.

The Sixth Amendment grants a criminal defendant the right “to be confronted with the witnesses against him.” The Supreme Court has previously ruled that a criminal defendant’s right to cross-examination includes the right to face physically those who testify against him and to ensure that the witness gives his statement before the jury so the jury may observe the witness’s demeanor.

The Ninth Circuit agreed with the trial court, finding that the disguise was “necessary to further an important state interest, namely a witness’s safety.” Because he was present in the courtroom, subject to cross-examination, with this eyes and facial expressions visible, the appeals court ruled that the jury was able to observe key elements of his demeanor and make the necessary judgment about his credibility. The appeals court therefore found no constitutional violation.

Mr. Jesus-Casteneda is sure to appeal the Supreme Court. The Ninth Circuit opinion can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2013/01/30/11-10397.pdf