Confrontation Right Violated if Victim Turns Away?

The Confrontation Clause of the Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . .”  It “provides two types of protection for a criminal defendant: The right physically to face those who testify against him, and the right to conduct cross-examination.” Coy v. Iowa (1988) 487 U.S. at 1017.

The right to a face-to-face meeting between the accused and the accuser follows from the Confrontation Clause’s “primary object:” to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of personal examination and cross-examination in which the accused has an opportunity to test the "recollection and the conscience of the witness, but also of compelling him to stand face to face with the jury in order that they may look at him and judge by his demeanor upon the stand to judge whether he is worthy of belief.”  Maryland v. Craig (1990) 497 U.S. 836, at 845.

In Coy, supra, in the trial court, the state had successfully moved for a screen to be placed between the witness stand and the defendant pursuant to a state statute that permitted children to testify behind a screen.  The U.S. Supreme Court held that placing a screen between the defendant and the child violated defendant’s right to a face-to-face confrontation.  Id., at 1020.  However, it held that the confrontation right does not require eye-to-eye contact.  However, the face-to-face confrontation is essential to “confound and undo the false accuser or reveal the child was coached by a malevolent adult.”

Two years later in Craig, the U.S. Supreme Court recognized an exception to face-to-face confrontation in child abuse cases, upholding a Maryland statute that permitted a child victim to testify via a one-way closed circuit television, so long as the trial court makes a case-specific finding that the child would be traumatized by testifying in the defendant’s presence, and the child’s testimony is subject to rigorous adversarial testing through cross-examination.  Craig, supra, at 855-857.

This legal background is helpful toward understanding a recent California case arising out of Sacramento and the Third Appellate District wherein it was held that there was no confrontational right violation when the judge allowed a victim suffering from trauma to turn her chair away from defendant to complete her testimony. 

In late January 2017, the victim was 24 years old and staying at a friend’s house in Sacramento.  One evening, she approached a man, later identified as defendant Amit Bharth, in a parking lot and asked to use his cell phone.  He forced her into his sport utility vehicle and drove away.

Over the next seven days, they slept in motels or his SUV.  Mr. Bharth twice raped the victim in a motel room and forced her to orally copulate her.  During the week he was with her, he would not let her leave, and beat her, including slapping her in the back of her head hard and punching her in the face, shoulders, legs and arms.  He pulled out chunks of her hair and attempted to burn her with a blowtorch.

She eventually escaped from the SUV and ran into a nearby business and an employee called 911.  When officers arrived, the victim was crying and scared.  She had serious injuries to her face and back and was taken to the hospital by ambulance.  Her clothes were ripped.

Defendant testified on his own behalf at trial, explaining that the victim and he had consensual sex several times over a week and went to numerous places such as casinos, movies, restaurants, parks and a fitness center.  He denied raping the victim, threatening her or hitting her.

At trial, the victim was 26 years old.  She was dyslexic and had a bipolar disorder.  When the prosecutor asked her about the initial encounter, she said she was experiencing a “flashback.”  She said she would recognize the man she encountered if she saw him, but indicated he was not in the courtroom (he was in the courtroom).  She was afraid to identify the man because “something might happen” if she did.  She said she felt disgusted to describe the trauma and that it disgusted her to think about what had happened.

Following this, the prosecutor asked the judge if the victim could turn her chair to testify more comfortably, so she did not have to face defendant.  The judge allowed this and she testified fully. 

The jury convicted Mr. Bharth of two counts of forcible rape (Penal Code § 261(a)(2)), assault by means of force likely to produce great bodily injury (Penal Code § 245(a)(4)) and false imprisonment (Penal Code § 236).  The jury also found true the allegation that he personally inflicted great bodily injury (Penal Code § 12022.7(a)."  The judge sentenced him to 23 years and eight months in state prison.

On appeal to the Third Appellate District, Mr. Barth argued that his Sixth Amendment confrontation right was violated by the judge’s order allowing the victim to turn her chair away to testify.

The Third Appellate District found no violation because the jury was able to observe her demeanor and her physical presence. She was also subject to full cross-examination and asked to repeat inaudible answers.  His constitutional rights were not violated.

We present this summary because, as we have seen in cases of our own, a woman may have an affair with a man and then, with great emotion, reports him to police for rape to defend against infidelity allegations from her spouse.  She may even have some injuries that she self-inflicts to corroborate her claims.  The man is innocent, but the woman fabricates a tall tale to preserve her marriage.  The right to cross-examination is how the truth is supposed to be ferreted out in such situations.

The citation for the Third Appellate District Court ruling discussed above is People v. Amit Bharth (3rd App. Dist., 2021) 68 Cal. App. 5th 801, 283 Cal. Rptr. 3d 763.

For more information about the Sixth Amendment right to confront one’s accuser, please click on the following articles: