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Sixth Amendment Confrontation Clause: Physical Gestures As Testimony


People v. Porco 2011 NY Slip Op 07255

New York Court of Appeals decided on October 18, 2011 

Issue: Whether the Sixth Amendment right to confrontation was violated when the trial court admitted testimony that the defendant’s mother nodded affirmatively when asked by the police if the defendant was the person who assaulted her.

Holding: Trial errors resulting in violation of a criminal defendant’s Sixth Amendment right to confrontation are considered harmless when, in light of the totality of the evidence, there is no reasonable possibility that the error affected the jury’s verdict.

Facts: The evidence at trial included, among many other things, video recordings from traffic cameras. Expert testimony DNA profile matched the profile from a sample extracted from a toll ticket handed out at the thruway.

There was also considerable evidence that defendant repeatedly lied to his parents about his mounting financial and academic problems, and that his parents had caught on.

The evidence of this staged break-in was unique and highly probative of defendant’s identity as the perpetrator of the crimes for which he was being tried, where the family home was likewise staged to make it appear as though his parents had been victimized by a stranger. The alarm had, in fact, been turned off by someone who knew the master code.

Legal Analysis: The Court of Appeals affirmed the conviction because of the overwhelming evidence of the defendant’s guilt.  Interestingly, the Court did not address whether or not the physical gesture (the head nod) by the mother was testimonial.  One is left to assume that the Court of Appeals considered this testimonial evidence because it was given in response to questions by the police.

This case is a perfect example of the Court’s application of Harmless Error Analysis when considering the Sixth Amendment Right to Confrontation.  The ultimate holding was that there was so much evidence of the defendant’s guilt that the admission of the gesture by his mother (no doubt a communication to the police) was harmless error in that it would not have effected the jury’s verdict either way.