Metropolitan News-Enterprise


Thursday, April 17, 2003


Page 1


Court of Appeal Overturns Conviction Because Witness Was Allowed to Testify Behind Glass Shield


By a MetNews Staff Writer


The Sixth District Court of Appeal has overturned a sex-crimes conviction because the alleged victim of the crime was allowed to testify with a one-way glass separating her from the defendant.

The use of such devices has been upheld in cases where the witness was a child, Justice Franklin Elia acknowledged Tuesday. But the Confrontation Clause of the U.S. Constitution prohibits its use to shield adult witnesses, at least absent a compelling showing of need, the jurist concluded.

The court threw out James Marcellos Murphy’s conviction of oral copulation by force or fear and felony false imprisonment. Santa Clara Superior Court Judge Edward F. Lee had sentenced Murphy to six years in prison.

Murphy was charged with attacking the woman in San Jose in 1997 and was convicted in 2000. The 31-year-old woman, identified as Sydney Doe, began her trial testimony with a full view of the defendant—she had the assistance of a support person, pursuant to statute—but had such obvious difficulty that the prosecutor asked the judge to take protective measures the next day.

Lee authorized the glass, noting that the witness had been hyperventilating and sobbing, making “keening” noises that made it difficult to hear the testimony. “To say that the victim in this case while testifying is severely emotionally distraught is like saying the ocean is rather damp,” the trial judge said.

The use of the glass shield, leaving the witness visible to the courtroom but blocking her view of the defendant, was a “slight change in what has been a traditional concept of the defendant’s right to confront her accuser” and preferable to a mistrial or having to excuse the witness, Lee said.

But Elia, who said the woman still had trouble breathing and apparently passed out during cross-examination, said the trial judge should have showed more deference to U.S. Supreme Court rulings protecting a defendant’s right to face the accuser.

While the primary component of the confrontation right is cross-examination, the justice explained, the high court has also cited the traditional view that a witness is less likely to prevaricate or embellish if required to face the defendant. Elia cited a 1988 case in which the Supreme Court pointed to the old adage “Look me in the eye and say that.”

The high court, as Elia noted, later said the right of face-to-face confrontation may be subjugated to the state’s “transcendent interest in protecting the welfare of children.” But the justices have never extended that reasoning to adults, Elia pointed out.

“Moreover, the trial court in this case was not relying upon the state’s interest in protecting adult victims but, instead, predicated its ruling on the state’s interest in ascertaining the truth,” the justice wrote. “...[T]he governmental interest in discovering the truth historically and traditionally cuts the other way.”

If the face-to-face confrontation requirement can be dispensed with, Elia went on to say, it would certainly require factual findings, rather than merely a prosecutor’s statement that the witness needed such protection.

Lee, the justice said, should not have proceeded as he did “without holding an evidentiary hearing to determine whether, and to what degree, the testifying victim’s apparent anxiety was due to the defendant’s presence rather than, for instance, the witness’s general emotional fragility or the trauma of testifying in court or revisiting a past experience the witness would rather not recall.”

Deputy Attorney General John Deist told the San Francisco Chronicle he didn’t know whether the state would seek further review, but he defended the trial judge’s actions. “Even though the witness was not a child, there’s a very important interest in protecting all victims of sex crimes,” Deist told the newspaper.

The case is People v. Murphy, 03 S.O.S. 1902.


Copyright 2003, Metropolitan News Company