Do Masks Violate a Defendant's Confrontation Clause Rights to Observe a Witness's Demeanor?
Zachary Caffo
Elon University School of Law Intern-in-Residency with Aberle & Wall
As the Covid-19 pandemic continues, courts have had to deal with situations where public safety must be balanced with protecting the rights of criminal defendants. Some issues have included the right to a Speedy Trial when courts are closed and the right to pretrial release as jails have become hotspots of coronavirus outbreaks. As trials have resumed with the slow reopening of courts, a new issue has received some attention: whether the requirement of wearing a mask in court could create a conflict with a criminal defendant’s right to confront witnesses as guaranteed by the Sixth Amendment of the United States Constitution.
The Supreme Court established in Maryland v. Craig that the confrontation clause gives the defendant the right to face-to-face confrontation with a witness and the court cannot deny this confrontation unless it is “necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Maryland v. Craig, 497 U.S. 836, 850 (1990). What this means is that the defendant has the right to observe the physical presence of the witness, that the witness testifies after giving an oath to be truthful, that the defendant has the right to cross-examination, and most importantly, with respect to the mask mandate, is the ability to observe the demeanor of the witness. Id. at 846. So, the issue is whether the mask violates the defendant’s right to confrontation in a trial as it hinders the ability to observe the demeanor of the witness.
Across the country, court have been handling this issue differently. In Arizona and Georgia, some courts denied defendants’ motions to require both the jurors and the witnesses to remove their masks answering questions or testifying, as it hinders the ability of the defendant to observe the demeanor of the person. United States v. James, No. CR-19-08019-001-PCT-DLR, 2020 WL 6081501, at 1 (D. Ariz. Oct. 15, 2020); United States v. Crittenden, No. 4:20-CR-7 (CDL), 2020 WL 4917733, at 5 (M.D. Ga. Aug. 21, 2020). Courts in both of these states held that the requiring masks during witness testimony satisfied the necessary standard set forth by the Supreme Court in Maryland v. Craig. The courts in both Arizona and Georgia held that the wearing of the masks, pursuant to the CDC guidelines, was an important policy of maintaining the safety of everyone during the pandemic and the covering of the nose and mouth was nothing more than a slight hindrance to observing demeanor. Furthermore, the other factors for reliability are still maintained and thus the practice did not violate the Confrontation Clause of the Sixth Amendment. James, 2020 WL 6081501, at 2.; Crittenden, 2020 WL 4917733, at 6. The court in Crittendon claimed that the ability to observe the witness’s nose and mouth is not required to assess the credibility of the witness. Id. at 7. This refusal to acknowledge that reading facial expressions as important to assess the credibility of witnesses when testifying could be a potential issue on appeal since many citizens have issues even identifying people they know when they are in masks. A mask can hide a lot of facial expressions a potentially conceal a witness’s demeanor.
In New Mexico, the court disagreed with the Arizona and Georgia court analyses by finding that a face mask that covers over the nose and mouth of a defendant would violate a defendant’s 6th Amendment confrontation clause rights. U.S. v. Robertson, No. 17-CR-02949-MV-1, 2020 WL 6701874, at 1 (D.N.M. Nov. 13, 2020). Similarly, in New York, they have required witnesses to testify behind a plexiglass shield, while wearing a face shield to minimize impact on a defendant’s confrontation clause rights. United States v. Petit, No. 19-cr-850 (JSR), 2020 WL 6157891, at 4 (S.D.N.Y Oct. 21, 2020). Both New York and New Mexico have taken measures to protect the safety of witnesses while also carefully considering a defendant’s Confrontation Clause rights to observe a witness’s demeanor. This divide between different jurisdictions has left an open question that the Supreme Court has not yet resolved.
There is no doubt that the prevention of the community spread of coronavirus is one of the most important tasks that we face right now and the use of masks is one of the best weapons we have in that fight. It is also true that the protection of the constitutional rights of all citizens of the United States is also one of the most important goals of a free society. The importance of discerning the credibility of witnesses in a jury trial is crucial, particularly when a person’s liberty is at stake. Hopefully, proper funding to provide resources and advances in technology could create potential solutions that balance these interests. One possible resolution could be the use of transparent masks. In California, a San Francisco judge ordered the witness to wear a transparent mask so that it was still possible to see the nose and mouth of the witness, which allowed for easier reading of facial expressions. A transparent mask might still be in violation of the Confrontation Clause, but it could be a better way to balance the health and safety of our citizens during a pandemic while also protecting the trial rights of defendants. During these trying times, we cannot forget about the protections the Constitution provides us with, while we maintain being vigilant and safe.
Contact our Greensboro lawyers to learn more.