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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
internet.

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.


Court TV with Ashleigh Banfield and Dr. Jo-Ellan Dimitrius

Dr. Jo-Ellan Dimitrius discusses the shooting of Ahmaud Arbery in Georgia.


S&C Leads Volkswagen to Victory in First Bellwether Trial Over Diesel Emissions

Volkswagen defeated massive damage claims sought by ten plaintiffs who opted out of the landmark class action settlement resolving consumer claims over Volkswagen’s sale and lease of diesel cars that exceeded emissions standards. In the first bellwether trial, which was held before Judge Charles Breyer in federal court in San Francisco, S&C convinced a jury that plaintiffs had not suffered any meaningful economic harm and awarded them less in compensatory damages than if they had accepted the class action settlement…

Read the full article at Sullivan & Cromwell »


Inside the Surreal Search for 12 Impartial Weinstein Jurors

…Jury consultants can provide an advantage during a labor-intense selection process like Weinstein’s, which require lawyers to review questionnaires from hundreds of jurors. In the internet age, they also cyber sleuth. “I can type in your name right now and get a whole full report on you within 20 seconds,” Blueprint Trial Consulting partner Eric Rudich said during a phone interview. “For all prospective jurors, we have everything: where they live, their home value, political affiliation, sometimes things they’ve bought.” Weinstein’s team has called foul on the alleged social media posts of several would-be jurors, including a writer who apparently tweeted about using his jury seat to promote his novel. The juror claimed the tweet, which has since been deleted, was intended to be humorous. On Thursday, Judge James Burke dismissed the juror—and threatened a contempt-of-court charge.

When I told another jury consultant, Jo-Ellan Dimitrius, about Weinstein’s new hire, she burst into laughter. Not because of Stabile’s rep—just Weinstein’s timing. “It’s certainly my experience on any high-profile case [that] we are retained by the client well before a trial,” said Dimitrius, who worked on the criminal trial that acquitted O.J. Simpson of murder and a civil case that ended in an eight-figure award to Francis Ford Coppola. Really rich clients who really want to win hire jury consultants to run mock trials, focus-test witnesses, and survey public opinions long before selection begins. (Rudich also brought this up. Then again, advising people to seek consultation is sort of part of a consultant’s job, isn’t it?) Hiring a jury consultant is still an advantage, she acknowledged. But the prosecution also has advantages, like, she said, “Mr. Weinstein being, let’s call him, an unattractive defendant?”

“The courtroom becomes the home for the jurors; they notice everything and everybody,” Dimitrius said. Invoking the saga of Weinstein’s cell phone disobedience, she said of his defense team, “They’ve got an uncontrollable client. And that’s the worst scenario you can have.”

Weinstein’s lawyers have argued that negative media coverage has damaged Weinstein’s access to a fair trial. But jurors who know nothing about Weinstein may not be ideal, either. “Someone who is so clueless as to what’s happening in the world around them might not be the best decision-maker,” said Fordham University law professor Cheryl Bader.

When I interviewed him several months ago, Weinstein defense lawyer Arthur Aidala said he’d be looking for “a mature juror…someone who’s seen a lot of experience.” Someone who would “say, ‘Nah, if somebody really did that to me? Not the way I grew up. Not when I grew up in Brooklyn. Not when I grew up in the Bronx.'” During voir dire on Thursday, ADA Illuzzi-Orbon accused Weinstein’s lawyers of “systematically eliminating every young white female” from two panels of prospective jurors.

“It is rare to find a demographic that is predictive. It is more experiential and attitudinal,” Dimitrius told me. She said that identifying jurors who have personal experiences with sexual assault is imperative: “The people who say yes—whether it’s the jurors themselves, or a wife or husband or someone else in their family—those people are truly deaf to the defense…”

Read the full article in Vanity Fair »


Forty Fort dentist cleared of tax fraud charges

A Forty Fort dentist accused of filing fraudulent tax returns to conceal more than $1 million of income has been acquitted of the charges.

A jury on Thursday found Charles Musto not guilty on two counts of wilfully filing a false tax return. The U.S. Attorney’s Office previously dropped a charge of operating a corrupt endeavor to impede the administration of tax laws.

“It’s refreshing to know that juries pay attention and can put aside attempts to portray a well-regarded citizen as a villain simply because he made the mistake of relying on professionals…

Read the full article on The Citizens’ Voice »


Jury rejects Harry Reid’s lawsuit against fitness band maker

A jury in Las Vegas flatly rejected former Senate Democratic Leader Harry Reid’s lawsuit against an exercise band maker he blamed for injuries—including blindness in one eye—he suffered when the stretchy device slipped from his grasp and he fell face-first a little more than four years ago.

After eight days of testimony, the eight-member civil trial jury deliberated about an hour before declaring that Reid never proved the first of 10 questions they were asked to decide…

Read the full article on CBS News »


El Chapo wants a new trial, asks court to investigate alleged juror misconduct

“It is a very serious problem and I think this judge really sits on the precipice with a lot of folks in the judiciary potentially following what’s going to happen here,” said Jo-Ellan Dimitrius, a jury consultant for the defense team in the O.J. Simpson trial. “This is really going to set a precedent, and the judge knows this.”

Juries are supposed to reach a verdict based solely on evidence and testimony heard inside the courtroom, but Facebook, Twitter, and Google have made it easy for curious jurors to seek out forbidden information about their case. Exactly how often that happens remains unclear, largely because jury deliberations are held in secret. Misconduct is typically only reported when jurors come forward or post publicly on social media.

Dimitrius said her firm’s polling has shown that 40 percent of prospective jurors say they would violate a judge’s instructions about social media. Other publicly available research suggests internet-related juror misconduct is rare. Only 33 federal judges out of nearly 500 surveyed in 2014 reported catching social media use by jurors during trial or deliberations. Another survey, also from 2014, of nearly 600 jurors from state and federal courts found that just 8 percent admitted being “tempted to communicate” about their case on social media.

Read the full article on Vice »


Alpine City ordered to pay $1.7 million in defamation lawsuit

Alpine city and former mayor Don Watkins were ordered to pay $1.7 million to several construction companies after nearly 20 years of land development disputes. The lawsuit accuses the city and former mayor of defamation and breaking contracts over city development, according to court documents from the 4th District Court in Provo.

“The city has breached the covenants of good faith and fair dealing by its actions,” the initial complaint states. The court ordered Watkins and Alpine City pay $1,756,000 for damages to the construction companies. The lawsuit initially asked for monetary damages of $10 million.

Read the full article on the Daily Herald »


Federal Jury Rules Against Transamerica in Battle Over Rates

The case involved the alleged use of racial data to justify rate increases on ‘investor-owned’ policies at a Los Angeles church

A federal jury found in favor of policyholders in a closely watched case that challenged the leeway life insurers have when raising rates on old policies.

The eight-person jury in Los Angeles awarded $5.6 million in damages to an investment group, DCD Partners LLC, that alleged Aegon NV’s Transamerica Life Insurance Co. impermissibly used race-based data when it raised rates by 50%. The jury found that Transamerica breached its insurance-policy contract and an obligation to deal fairly and in good faith, according to the verdict form filed Wednesday.

Read the full article on WSJ.com »