Who Is That Masked Witness?
The COVID-19 pandemic has prompted conversations in the legal community covering methods in which all participants (litigants, judges, lawyers, jurors and witnesses) can be potentially protected from an unseen virus. The conversation, however, hasn’t included the rights of those litigants to have a fair evaluation of witnesses speaking for or against them. It also hasn’t included the defendant’s rights under the Sixth Amendment’s confrontation clause of the U.S. Constitution.
None of us have been exempt from the mask wearing travails of our current time. How many of us have been at a grocery store, post office or bank with our mask on trying to communicate with others? How many times have you heard “I’m sorry can you repeat that again”, or “can you speak louder I can’t hear you” or “what did you just say” (improperly implying that you said something inappropriate)?
As the courts begin to reopen there have been a lot of suggestions as to how to protect all courtroom participants. One of the most egregious has been the suggestion that all witnesses who testify should don a mask. What in the world are those people thinking? Let’s just go ahead and put the witness on the stand with a paper bag over their head. What ever happened to following jury instructions dealing with the credibility of a witness?
1.7 of the Federal Model Criminal Jury Instructions say:
“In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it.
In considering the testimony of any witness, you may take into account:
(3) the witness’s manner while testifying;”
The “witness’s manner while testifying” clearly means the demeanor of the witness. Demeanor incorporates appearance, behavior, facial expressions, body language, intonation (vocal tone), etc.
Let’s look at the pure physics of having a witness wearing a mask. In essence, the mask acts as a physical barrier between the voice and facial expressions of the witness and the ears and eyes of the jurors. How will that mask impact how a soft-spoken witness is perceived? How will it impact a mumbling witness? One can certainly argue that the mask can potentially conceal significant deviations in the witness’s vocal traits.
The recipient(s) of the testimony would also not have the advantage of seeing potential “tells”. By tells, I reference nervous smiling, mouth agape, biting the lip, licking the lip, etc.
How can one clearly judge another with a mask on? The mask hides the mouth, nose and the lower ½ of the face. Are the jurors’ mind readers who can assume what position the mouth is in while that person testifies?
Sadly in attempting to protect the health of the witness, the ability for a jury or judge to evaluate the credibility and veracity of a witness is significantly reduced if not voided. The normal ability to see the entirety of a witness’s face eliminates the ability of a juror or judge to decode facial clues. Ultimately, there is a clear denial of a defendant’s right to confrontation of a witness.
In a fascinating and timely article by Scott Grubman for Law 360 (July 9, 2020), the author talks about factors previously considered by courts as they relate to facial disguises. The first was a ruling by the U.S. District Court for the Eastern District of New York (United States v. Nasser) in which the court allowed six undercover intelligence officers to testify with wigs and “light makeup” in order to protect their identities. The court indicated that the officers could only do so if the makeup and wigs didn’t restrict the jury’s or defendant’s ability “to view the witnesses’ full facial expressions.”
Let’s take a quick test with a witness wearing a mask:
Is this photo illustrative of someone with a slight frown?
Is this photo illustrative of someone with a sneer?
Is this photo illustrative of someone with a slight smile?
Is this photo illustrative of someone in shock?
Is this photo illustrative of someone sticking their tongue out?
As Paul Harvey would say, here’s the rest of the story:
Trial lawyers in both criminal and civil cases will need to seriously discuss these issues with the court in which their trials will convene. Ultimately, the courts need to balance the perceived health and safety of witnesses with the Sixth Amendment guarantee of a defendant’s right to confrontation of witnesses.
Photos: Chazz Layne
Considerations for Home Jury Service
The Sixth Amendment of the U.S. Constitution guarantees that an “accused shall enjoy a speedy
and public trial, by an impartial jury of the State and district wherein the crime shall have been
committed.” The COVID-19 pandemic has created the potential for an environment in which
courts are seriously considering home jury service as an option to bringing jurors into the
courthouse. In fact, a recent Texas court conducted a non-binding arbitration in which all the
jurors used a Zoom online platform for their “courtroom.” The jury selection and trial were
conducted solely online in one day.
The impartial jury over the years has come to mean a jury that is a fair cross-section of the
community or community conscience within the particular venue of the trial. Historically,
lawyers have filed a Challenge to the Array motion if there is a foundation/belief that a jury
panel is not representative of the community. Traditionally, demographic characteristics such
as gender, age and ethnicity have been cited as either missing or being unrepresented in these
types of motions. The remedy has been to disqualify and release the entire jury panel and
begin the process of jury selection once again which is time consuming and costly to a court
system that is already stretched too thin.
In addition to demographic factors, there may now exist a basis to challenge an entire panel on
use of computers and the internet at home. Shouldn’t a true cross-section of the community
include a juror/jurors who don’t have use of the internet within the home? According to a 2019
Pew research study, “10% of adults in the United States don’t use the internet.” This was a
longitudinal study from March 2000 to January 2019 in which 102 surveys and 237,421
interviews were conducted among the general public in the United States.
There are a number of considerations related to computer/internet usage that the courts
should take into account when making decisions about reopening the courts to jurors or not.
First, the geography of the venue should be analyzed. Studies have shown that individuals that
live in rural settings are much less likely to have computers in their home much less use the
Second, demographic factors should also be contemplated in the courts’ analysis. It is generally
known that seniors are much less likely to go online. Education as a demographic factor is also
an important consideration. As of 2019, 29% of individuals in the United States with a less than
high education didn’t use the internet.
Third, it’s important to note in the Pew research study that 32% of the internet non-users
indicated that it was “too difficult to use.” And the court system is now considering online jury
service wherein a platform such as Zoom is being suggested as the manner in which jurors can
serve their civic duty?
Finally, what hasn’t been addressed aside from the representativeness argument is the lack of
outside influences from a juror who might be serving jury duty from home. What occurs when
a family member or family pet wanders into the room in which the juror is watching court
proceedings on a computer screen? What may the juror be looking at onscreen as they’ve
minimized the “court viewing screen?” The juror could potentially be having multiple email or
text conversations while the trial is taking place. Perhaps they’re looking up litigant or lawyer
information in direct conflict with a judge’s instructions? How is a judge to reprimand a juror
who manages to take a much longer break away from the screen for either the morning court
break, lunch, or the afternoon court break? In addition, the juror’s attention span will be
significantly lessened due to so many distractions that occur within the home. Imagine the
travails of a multi-day/week online trial with twelve jurors plus alternates. This is an absolute
recipe for disaster.
Should courts decide to go the route of home jury service, trial lawyers, particularly in criminal
cases, may be remiss in not exploring the use of Challenge to the Array motions based on the
potential lack of jury members representing community consciousness.
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