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Ninth Circuit:
Comparing Defendant’s Appearance to That of Robber Depicted in Video Is Permissible
Panel Says Evidence Is Not Extrinsic, No Sixth Amendment Violation
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals declared yesterday that a defendant accused of four robberies was not deprived of his Sixth Amendment right to a fair trial by virtue of his physical appearance in the courtroom being compared to that of the perpetrator depicted on videotapes of the crimes in progress, rejecting the defense contention that this constituted improper reliance on extrinsic evidence.
Senior Circuit Judge Richard R. Clifton authored the opinion which affirms the convictions of Mohamed Ahmed Hassan on four counts of bank robbery. He wrote:
“We conclude that the trier of fact may properly identify a defendant by comparing his observable appearance to photographic representations of the culprit. The visual comparison made by the district court, along with other available information about the robber, was sufficient evidence of Hassan’s guilt.”
The man depicted on the videos had a bandana covering his mouth and a portion of his nose.
Hassan’s lawyer maintained that their client’s appearance was extrinsic evidence which District Court Judge Cathy Ann Bencivengo of the Southern District of California “improperly took into account” at Hassan’s bench trial. The government’s attorney drew attention to it during closing argument.
Oral Argument
Attorney Jessica Janet Oliva of Federal Defenders of San Diego, Inc, told a three-judge panel at oral argument in Pasadena on June 9:
“At the end of the day, the Sixth Amendment guarantee of a fair trial requires that the defendant be judged based on the evidence introduced at trial, and here, the government never bothered to introduce anything about the person sitting in the courtroom. They had no witness identify him.
“They had no information or testimony about that person’s name.”
She added that there was no showing that the person who was arrested “was, in fact, the person sitting at the counsel table.”
O.J. Simpson Case
Clifton alluded to the moment on June 15, 1995, when O.J. Simpson, on trial for murder, was asked to put on the gloves worn by the slayer. He asked Oliva:
“Why is that considered extrinsic, out-of-court, if it all happens in the courtroom?”
The lawyer responded:
“I didn’t say that that was extrinsic.”
There, she noted, the judge (Lance Ito, now retired from the Los Angeles Superior Court) granted leave for the experiment.
“It was demonstrative evidence,” Oliva said.
Clifton queried:
“Why wasn’t your client’s face demonstrative evidence that the district judge looked at for several hours?”
She replied that the government never asked that Hassan’s physical appearance be considered as evidence.
The senior judge commented:
“I’ve never seen a formal introduction into evidence of the face of the defendant sitting in front of you.”
Contention Rejected
Clifton said in yesterday’s opinion:
“We have not squarely addressed whether the factfinder’s consideration of the defendant’s physical appearance in court is extrinsic evidence, but our precedents suggest that it is not.”
He declared that Bencivengo “did not rely on extrinsic evidence by observing Hassan in person and comparing his appearance with the robber in the surveillance video footage.” remarking:
“The very point of evidence like the video footage presumes such a comparison.”
Rejecting Oliva’s contention that the defendant’s appearance must be formally introduced as evidence, Clifton wrote:
“Such an overbroad conception of extrinsic evidence would sweep in even factors like courtroom demeanor, tone of voice, and body language, all of which are routine considerations for the jury….In this case, identity was the key issue from the beginning. Hassan knew that the prosecution would present the surveillance video footage. Represented by counsel, Hassan was able to cross-examine the prosecution’s witnesses and ask them questions about the robber’s looks.”
The totality of the evidence, he said, was sufficient for conviction,
Clifton observed in a footnote:
“Wearing a face mask in public, even in a bank, was not as unusual in January 2022, in light of the COVID-19 pandemic, as it might have been at other times. The evidence in the record shows other people wearing masks, including both customers and employees of Chase Bank.”
The case is U.S. v. Hassan, 24-263.
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