Metropolitan News-Enterprise


Tuesday, September 14, 2021


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Right of Confrontation Does Not Require Eye Contact—C.A.

Rights of Rapist Were Not Violated by Judge Who Allowed Victim to Turn Chair, Facing Away Toward Jury; Opinion Says Testimony As to Necessity for Accommodation, Detailed Findings Were Not Required


By a MetNews Staff Writer


The Third District Court of Appeal has affirmed the conviction of a man on two counts of forcible rape, along with assault by means of force likely to produce great bodily injury and false imprisonment, spurning his contention that he was denied his right to confrontation of witnesses because his victim was seated in a chair that was turned to face the jury, she focused on the wall behind the jury, and was barely audible, at times inaudible.

 Justice Elana Duarte authored the opinion, which was filed Aug. 19 and certified for publication on Friday.

 Duarte rejected the argument of appellant Amit Bharth that reversal is mandated by the U.S. Supreme Court’s 1990 opinion Maryland v. Craig because Sacramento Superior Court Judge Curtis M. Fiorini made accommodations for the witness without hearing testimony as to the need for that and did not make detailed findings.

In Craig, which involved testimony a child who had been molested over closed-circuit television, then-Justice Sandra Day O’Connor, writing for the majority, said:

“The requisite necessity finding must be case-specific. The trial court must hear evidence and determine whether the procedure’s use is necessary to protect the particular child witness’ welfare; find that the child would be traumatized, not by the courtroom generally, but by the defendant’s presence; and find that the emotional distress suffered by the child in the defendant’s presence is more than de minimis.”

Craig Differentiated

Duarte wrote:

“Unlike in Craig, this case does not involve the denial of face-to-face confrontation. Situations that do not deny such confrontation do not implicate the type of showing required in Craig….There is no right to eye contact with the witness as long as the witness is in defendant’s physical presence; thus, it was not necessary for the trial court in this case to make the findings (which the defense did not request) required by Craig.

She said that Fiorini did make a finding that the witness would have been traumatized if she had been forced to make eye contact with the defendant and observed that the record shows a reasoned basis for that finding.

Trial Judge’s Findings

The justice quoted Fiorini as saying, in denying the defendant’s motion for a mistrial:

 “So it’s clear to the court that this witness could barely get through these proceedings. She could not look up. She could not look at the defendant. She did not even want to look up and around the courtroom. She’s nervous; frantic; scared; afraid. According to her, she has to relive this trauma because of the defendant.

“So in order to get her testimony out, the court did allow her to turn the chair and did allow her to stay in that position over [defense counsel’s] objection that he couldn’t see her in order to just be able to get her testimony out, and get her in a position where she would at least talk and answer questions.

“I do find, for the record, that she would have been traumatized even more if she were made to face the defendant.”

Duarte said that although the record shows that the victim did not speak into the microphone and spoke softly, she was generally audible and when that was not so, Fiorini asked her to repeat her answers.

“On this record, we are unpersuaded by defendant’s assertion that the victim’s conduct while testifying on direct examination interfered with the jury’s ability to assess her demeanor and draw its own conclusions about her credibility,” she wrote. “The jury could see the victim’s general demeanor and reactions to questioning, including her reaction to the questions about the alleged rapes and physical abuse.”

The victim was 24 at the time of the attacks in January 2017. Bharth forced her into his SUV and, over a period of one week, kept her confined to the SUV or to motel rooms and raped and battered her, at one point attempting to burn her with a blowtorch.

He was sentenced to 23 years eight months in prison.

The case is People v. Bharth, 2021 S.O.S. 5090.


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