SDNY Judge Denies Courtroom Closure Motion, But Permits Undercover Officer to Testify in Disguise

Courtroom closure should be reserved for rare circumstances, according to Second Circuit precedent, but it is nonetheless routinely requested and granted in criminal trials involving an active undercover officer. Besides denying the defendant his/her fundamental right to a public trial, emptying the courtroom has symbolic implications: for example, conferring on the witness for whom the courtroom is closed an aura of gravity and mystery that may bolster their testimony. In a recent case, United States v. Martinez, 2007 WL 2710430 (S.D.N.Y., September 14, 2007), a judge denied the government’s mid-trial courtroom closure motion, finding that there was no evidence that the officer would likely come in contact with the members of the audience or that any audience member was likely to expose the officer or present a danger to him or his family. Rejecting the alternative that the officer be screened away from the audience (but not the jury or the defendant) as contrary to Second Circuit precedent, the court instead permitted the witness to testify in disguise – the first reported district court decision in the Second Circuit I found where this occurred. Although the nature of the disguise was not disclosed in the opinion, it did not include dark glasses “so that the defendant and jury [could] observe his eyes, his facial reactions to questions, and his body language.”

The judge’s reasoning is painstaking and admirable in its effort to balance the defendant’s Sixth Amendment rights with the government’s concern for the officer’s safety. His desire to adopt an alternative to the more draconian measure of courtroom closure is to be welcomed, but allowing a witness testify in disguise is not without its risks. It can, for example, defeat one of the purposes behind a public trial, which is to deter perjury. Someone testifying behind the mask of a disguise, and thus de-individuated, may experience less compunction about telling the truth or discomfort about telling lies. Defense lawyers should therefore not necessarily view Martinez as the right fallback position in courtroom closure disputes, and should weigh the risks and benefits of courtroom closure and the alternatives in each individual case.