III. THE COURT IMPROPERLY PRECLUDED MR. TULIN’S COUNSEL FROM COMMENTING ON THE COURTROOM DEMEANOR OF MS. MARCELIN, IN VIOLATION OF MR. TULIN’S RIGHTS UNDER THE CONFRONTATION CLAUSE
Ms. Marcelin, while exiting the witness stand, but still in the courtroom and within plain sight of the jury, purposefully waved and smiled at Mr. Tulin. Mr. Tulin, through counsel, brought this fact to the court’s attention; however, the court precluded counsel from making any references to or arguments from this action to the jury. Tr. pp. 190:20 – 192:8; 416:25 – 420:21. Mr. Tulin respectfully submits that this ruling constituted prejudicial error in violation of the Confrontation Clause.
In Barber v. Page, 390 U.S. 719, 725 (1968), the court said:
Many years ago this Court stated that '(t)he primary object of the (Confrontation Clause of the Sixth Amendment) was to prevent depositions or ex parte affidavits being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.' Mattox …show more content…
Secretary of Housing and Urban Development, 54 F.3d 1560, 1566 (10th Cir. 1995); Ettinger v. Johnson, 556 F.2d 692 (3d Cir. 1977) (demeanor evidence is “real evidence”). Mr. Tulin, through his counsel, should have been permitted make use of Ms. Marcelin’s “demeanor evidence” (The government was allowed to comment and draw the jury’s attention to Mr. Tulin’s demeanor at counsel’s table. Tr. p. 549:10 -12). The Court’s ruling to the contrary denied Mr. Tulin his rights under the Confrontation
Ms. Marcelin, while exiting the witness stand, but still in the courtroom and within plain sight of the jury, purposefully waved and smiled at Mr. Tulin. Mr. Tulin, through counsel, brought this fact to the court’s attention; however, the court precluded counsel from making any references to or arguments from this action to the jury. Tr. pp. 190:20 – 192:8; 416:25 – 420:21. Mr. Tulin respectfully submits that this ruling constituted prejudicial error in violation of the Confrontation Clause.
In Barber v. Page, 390 U.S. 719, 725 (1968), the court said:
Many years ago this Court stated that '(t)he primary object of the (Confrontation Clause of the Sixth Amendment) was to prevent depositions or ex parte affidavits being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.' Mattox …show more content…
Secretary of Housing and Urban Development, 54 F.3d 1560, 1566 (10th Cir. 1995); Ettinger v. Johnson, 556 F.2d 692 (3d Cir. 1977) (demeanor evidence is “real evidence”). Mr. Tulin, through his counsel, should have been permitted make use of Ms. Marcelin’s “demeanor evidence” (The government was allowed to comment and draw the jury’s attention to Mr. Tulin’s demeanor at counsel’s table. Tr. p. 549:10 -12). The Court’s ruling to the contrary denied Mr. Tulin his rights under the Confrontation