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

…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 »