As jury trials resume across the state, many criminal courts will soon confront the issue of whether to permit State’s witnesses to wear masks while testifying. CDC guidance suggests that there can be substantial health risks to allowing unmasked testimony in the confines of a courtroom, but as I explore below, the allowance of masked testimony presents its own significant constitutional risks.
Tag Archives: witnesses
This week, the court of appeals decided State v. Forte, a case in which the defendant was convicted of exploitation of an elder adult in violation of G.S. 14-112.2 and its predecessor. The case provides a helpful interpretation of some of the key terms in the statute, and it is worth reading for that alone. This post, however, focuses on a different aspect of the case – the court’s ruling that the victim in the case was competent to testify.
Generally, the state’s evidence suggested that the defendant worked for an elderly man first as a handyman, then as a sort of driver and personal assistant. In the latter capacity, the defendant began “helping” the victim with bill paying and financial matters, and eventually began writing checks to himself on the victim’s account.
The victim was at least 93 years old at the time of the first charged conduct, and was at least 99 years old at the time of trial. As his daughter acknowledged, his faculties were declining. The defendant argued that the decline was such that the victim was not competent to testify. Under Rule 601, every person is presumed competent, but may be declared incompetent if he or she is “(1) incapable of expressing himself concerning the matter as to be understood . . . or (2) incapable of understanding the duty of a witness to tell the truth.” Id. At least on appeal, the defendant’s argument was based on the first prong of the Rule.
Many of the cases on witness competency involve the second prong of the rule, and most of the cases involve very young witnesses, not elderly ones. In fact, a few minutes on Westlaw turned up only one other case that involved a similar fact pattern: in Rodriguez v. State, 772 S.W.2d 167 (Tex. Ct. App. 14 Dist. 1989), the court held that a witness born in 1907 and diagnosed with Alzheimer’s was competent to testify; although she did not know her own age, was confused about the day of the week, and her testimony contained inconsistencies, the court determined that she was lucid overall. Given the scarcity of similar cases, Forte presented an interesting fact pattern.
The trial judge conducted a voir dire on the issue of competency, eventually ruling that the victim would be allowed to testify. The court of appeals affirmed, finding no abuse of discretion. It quoted State v. Davis, 106 N.C. App. 596 (2002), for the proposition that “Rule 601(b) does not ask how bright, how young, or how old a witness is,” but instead focuses on functional competence. And it noted that other cases have held that a witness who is unable to answer certain questions, or who gives only vague or ambiguous answers, is not necessarily incompetent. Noting that the victim in the case at bar “correctly testified to his full name, his birth date, and where he lived,” identified several of his relatives and the defendant, and knew that he was at a courthouse for a trial, the court held that the trial judge had not abused his discretion in allowing the victim to testify.
As far as I know, the entire transcript isn’t available online. However, the defendant’s brief includes several excerpts from it, and in those excerpts, the victim does appear to be confused about some very fundamental facts, like his deceased wife’s name; how many children he had and where they live; whether, how long, and how well he knew the defendant; whether the defendant had ever been to his home; and whether he had a checking account. (The state’s brief points out that the victim was able to answer some questions about his prior employment and other matters.)
If the excerpts cited in the defendant’s brief are representative of the victim’s overall performance – and again, I haven’t read the whole transcript so I don’t have an opinion on that point – the fact that the court ruled as it did highlights two things. First, competency is a low hurdle. Our appellate courts have consistently allowed testimony from very young children, see, e.g., State v. Rael, 321 N.C. 528 (1988) (four year old), and witnesses with serious mental illnesses, see, e.g., Carpenter v. Boyles, 213 N.C. 432 (1938), in some cases despite very limited abilities to recall relevant events and to answer questions. See generally Kenneth S. Broun, Brandis & Broun on North Carolina Evidence § 132 (6th ed. 2004). Forte appears to be in keeping with this tradition, which generally assumes that juries are able to assess the capacities of various witnesses. And second, the abuse of discretion standard of review is quite deferential. The court of appeals emphasized that the trial judge “was present and able to observe [the victim’s] demeanor firsthand,” and was clearly reluctant to reach a contrary conclusion based on a cold record.
I blogged recently about whether the state is obligated to produce its witnesses’ criminal records in discovery. (Recall that the answer is no, in North Carolina, with some exceptions.) Another question that sometimes comes up regarding the state’s witnesses is whether the state must inform the defense if one of its witnesses goes missing, or dies, or otherwise becomes unavailable. For example, if the victim in a sexual assault case is from Mexico, and returns there during the pendency of the case, without leaving any contact information, must the state inform the defense? Or may the state attempt to negotiate a plea and salvage something out of the case?
The short answer is that there is no legal principle that specifically requires the disclosure of information of this kind, although it will often be part of the prosecution “file” for purposes of the statutory discovery requirements in G.S. 15A-901 et seq.
First off, the fact that a witness has gone missing is not subject to constitutional disclosure under Brady v. Maryland, 373 U.S. 83 (1963). Brady requires the state to disclose “evidence . . . which . . . would tend to exculpate” the defendant or to mitigate the offense. The fact that a witness has gone missing is not evidence at all, nor does it tend to exculpate the defendant or to mitigate the offense. The leading case in this area is People v. Jones, 375 N.E.2d 41 (NY 1978), which held that a prosecutor was not required to disclose the fact that one of the state’s witnessed had died, because the witness’s death not “exculpatory evidence.”
The next question is whether the witness’s unavailability must be disclosed in order to comply with the Rules of Professional Conduct. Rule 3.8(d) requires a prosecutor to disclose “all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.” Although the use of the phrase “evidence or information” makes this a slightly closer call than the Brady question, the fact remains that the disappearance of the witness doesn’t tend to exculpate the defendant or to mitigate the offense.
However, the statutory discovery rules in G.S. 15A-901 et seq. will often effectively require disclosure of the fact that a witness has gone missing. Although nothing in those statutes specifically requires such disclosure, it would be unusual for a prosecutor or investigating officer to learn of a witness’s unavailability without that information making it into the “file” that must be disclosed under G.S. 15A-903. For example, if an officer attempts to reinterview the witness and learns that the witness has returned to Mexico, the officer is likely to make a note or report of that fact — and the note or report is part of the file. If the witness’s friend calls the prosecutor’s office to tell the prosecutor that the witness will not be available for trial, that notification still seems to me to be a “matter . . . obtained during the investigation” of the defendant, and so subject to disclosure.
If, for some reason, a witness’s unavailability is not part of the “file” in a particular case, the prosecutor need not disclose it immediately. However, the prosecutor would need to be careful about what he or she said during plea negotiations, in order to avoid making a false statement or misrepresentation that would be improper under Rules 4.1 or 8.4 of the Rules of Professional Conduct. And of course, the witness’s unavailability would eventually come to light. At a minimum, the prosecutor could not include the witness’s name on the list of witnesses the state “reasonably expects to call,” a list it must provide to the defense at the beginning of jury selection under G.S. 15A-903.
I’ve been asked several times whether the state is required to provide the defense with the criminal record of the state’s witnesses.
There are two possible justifications for such a requirement. First, one could argue that disclosure is mandated by the discovery statutes, G.S. 15A-901 et seq. Second, one could argue that disclosure is required by Brady v. Maryland, 373 U.S. 83 (1963), which generally holds that the state must produce any exculpatory, mitigating, or impeachment evidence to the defense. These arguments have failed to persuade our appellate courts, which have repeatedly held that a defendant is not entitled to this information. See, e.g., State v. Williams, 355 N.C. 501, 543-44 (2002) (citing cases); State v. Bruce, 315 N.C. 273 (1985).
I don’t think the issue is quite as settled as it seems, though, either as a statutory matter or as a constitutional one. Starting with the statutory analysis, Williams and virtually all the other cases in this area were decided before the enactment of open file discovery in 2004. S.L. 2004-154. Under the new version of G.S. 15A-903, the state must produce “the complete files of all law enforcement and prosecutorial agencies” involved in the case. Based on that language, when a witness’s record has been printed out or otherwise made part of the case file, it must be produced in discovery.
Moving to the constitutional issue, the reason why many courts have held that the state is not required to produce its’ witnesses’ criminal records is that those records are equally available to the defense. I should note that courts don’t uniformly accept this argument. Compare, e.g., Wilson v. Beard, 589 F.3d 651 (3rd Cir. 2009) (“We have clearly held that the prosecution bears the burden of disclosing to the defense a prosecution witness’s criminal record, whether or not an explicit request has been made by defense counsel,” notwithstanding the public availability of the record), and United States v. Price, 566 F.3d 900 (9th Cir. 2009) (holding that the prosecution must produce its’ witnesses’ criminal records, prison records, and other information relevant to credibility), with, e.g., Bell v. Bell, 512 F.3d 223 (6th Cir. 2008) (en banc) (because the state’s witness’s “sentencing records were available to” the defendant and the public, the prosecution’s failure to produce them did not violate Brady), and United States v. Jones, 34 F.3d 596 (8th Cir. 1994) (where “information about [a witness’s] criminal record . . . was accessible to [the defendant’s] attorney” as a public record, “the prosecution does not violate Brady by not discovering and disclosing the information”).
In North Carolina, it’s reasonable to interpret the Williams line of cases as resolving this issue in the state’s favor as a general matter. Cf. also State v. Jackson, 309 N.C. 26 (1983) (rejecting Brady claim in part because witnesses’ statements “were incorporated into affidavits used to support the state’s application for search warrants . . . . As these warrants were of public record, defendant could have examined them before trial.”). Even so, however, there may be limited circumstances in which Brady requires the state to disclose information about witnesses’ records. For example, in Crivens v. Roth, 172 F.3d 991 (7th Cir. 1999), the Seventh Circuit held that the state’s failure to disclose the criminal record of one of its witnesses violated Brady. The Crivens court stated that under most circumstances, a witness’s criminal record is available to the defendant — for example, by asking the witness on the stand about his record — but noted that in that case, the witness’s record was under an alias, both rendering the record itself inaccessible to the defendant and suggesting that the witness might have lied about his record if asked. The general point is that when a prosecutor knows that a witness has a criminal record, but has reason to believe that the information cannot easily be located by the defense, the prosecutor should disclose it.
Another situation where this general rule might apply is when a prosecutor learns that a witness has a criminal record in another state. I doubt that a prosecutor can generally be charged with knowledge of witnesses’ out-of-state convictions, since the records of those convictions are in the possession of another sovereign. Queen v. State, 198 P.3d 731 (Idaho App. 2008) (state prosecutor not responsible for information about its witnesses’ criminal records that was available through NCIC, as NCIC is a federal database and “the record does not reflect that the FBI played any role in investigating or prosecuting” the defendant). However, if a prosecutor learns of such a conviction, he or she should probably disclose it given that defendants have limited or no access to out-of-state records.
I’d be interested to hear about how this issue is handled around the state, and of course, chime in if you disagree.