A three judge panel of the Ninth Circuit Court of Appeals recently ruled that a confidential law enforcement informant could testify in court against a criminal defendant while in disguise. Defendant Jorge De Jesus-Casteneda appealed his conviction on drug related charges, arguing that the confidential informant’s mustache and wig disguise while testifying on the witness stand violated the Confrontation Clause of the Sixth Amendment to the US Constitution .
The Confrontation Clause grants a criminal defendant the right “to be confronted with the witnesses against him.” U.S. Const. Amend. VI. A criminal defendant also has the right to physically face those who testify against him and to have the witness testify in front of the jury so the jury can observe and evaluate the witness’s demeanor. Maryland v. Craig, 497 U.S. 836, 851 (1990).
The court affirmed the lower court’s conviction, holding that the wig and mustache disguise “did not violate the Confrontation Clause, where the disguise was necessary to further the witness’s safety and the reliability of his testimony was otherwise assured.”
The court reasoned that the disguise was necessary for the informant’s safety, given his continued involvement in drug investigations as an undercover agent. The court also determined that there were other factors assuring the reliability of the informant’s testimony. The court noted that the jury could “hear his voice, see his entire face including his eyes and facial reactions to questions, and observe his body language.”
Mr. Casteneda also argued that the disguise violated his due process rights. The court, however, did not reach this issue and instead determined that any such error was harmless.
The court issued its opinion on January 30, 2013. U.S. v. Casteneda.