As jury trials resume across the state, many criminal courts will soon confront the issue of whether to permit State’s witnesses to wear masks while testifying. CDC guidance suggests that there can be substantial health risks to allowing unmasked testimony in the confines of a courtroom, but as I explore below, the allowance of masked testimony presents its own significant constitutional risks.
Chief Justice Beasley’s orders requiring the use of masks in courthouses leaves to the presiding judge the question of whether a witness should testify without a mask in a jury trial. See Emergency Directive 21, at 7. As explained in a guide prepared by the AOC about jury service, the mask requirement in court “does not apply to a juror or witness who has been ordered by a presiding judicial official to temporarily remove a mask while answering questions or testifying during a jury trial.”
In the few decisions that have addressed the issue since the start of the pandemic, courts in other jurisdictions have split on whether masked testimony by a government witness is constitutionally permissible absent a waiver by the defendant. However, the weight of authorities, pre- and post-pandemic, suggests that a State’s witness may not testify in a criminal trial while wearing a face mask. This is because the use of face masks by testifying witnesses undermines a defendant’s right to confrontation under the Sixth Amendment and also may run afoul of a defendant’s right to due process under the Fifth and Fourteenth Amendments (as well as under parallel North Carolina state constitutional requirements).
These rights are distinct but intertwined. The Sixth Amendment’s primary concern in this context is the ability of the defendant to view and assess the credibility of witnesses against him. John Rubin and I recently wrote a bulletin about the limited circumstances in which a State’s witness may testify remotely in a criminal trial. As discussed there, the U.S. Supreme Court held in Maryland v. Craig, 497 U.S. 836 (1990), that remote testimony violates a defendant’s Sixth Amendment right to confrontation unless the State meets a demanding two-part test for necessity and reliability. Similar concerns are at issue with respect to masked testimony. The right to due process, by contrast, protects the defendant’s right to a trial in which jurors are able to meaningfully assess witness demeanor and credibility. Some confrontation cases, including Craig, also speak of the defendant’s right to “have the jury view the demeanor of the witness.” 497 U.S. at 842.
Sixth Amendment Right to Confrontation. The ability of trial participants to assess witness demeanor has always been regarded as a critical component of the confrontation right. In one of its earliest cases to consider the issue, the U.S. Supreme Court described a “primary object” of the clause as providing an accused “an opportunity . . . of testing . . . the witness . . . face to face with the jury in order that they may look at him, and judge by his demeanor . . . whether he is worthy of belief.” Mattox v. United States, 156 U.S. 237, 242–43 (1895). In a more recent case considering the appropriateness of remote testimony, the Court of Appeals of New York observed that the ability of the “defendant to view the witness’s demeanor as he or she testifies” was “[e]ssential to the holding in [Maryland v.] Craig.” People v. Wrotten, 923 N.E.2d 1099, 1102–03 (N.Y. 2009).
In an opinion from late 2020 addressing the question of whether masked testimony at trial is constitutionally permissible during the pandemic, the U.S. District Court for the District of New Mexico reaffirmed that “[a]n unimpeded opportunity to cross-examine adverse witnesses face-to-face and in full view of the jury is core to the Sixth Amendment right of confrontation.” United States v. Robertson, No. 17-CR-02949-MV-1, 2020 WL 6701874, at *1–2 (D.N.M. Nov. 13, 2020). The prosecution in the case had urged the court to permit unmasked testimony, concerned that a contrary holding would violate the defendant’s confrontation rights. Id.; see also United States v. Cohn, No. 19-CR-097 (GRB), 2020 WL 5050945, at *4 (E.D.N.Y. Aug. 26, 2020) (observing that “effective credibility evaluation (and perhaps the Confrontation Clause) requires that witnesses testify without traditional masks”). The court in Robertson required the witnesses to testify without a mask but with a face shield and behind plexiglass, concluding that the arrangement did not create an unacceptable health risk. (The safety of this arrangement is beyond the scope of this post and my expertise.)
Not every court has agreed that unmasked testimony is required to satisfy the defendant’s confrontation rights. In United States v. Crittenden, the U.S. District Court for the Middle District of Georgia held that, “[u]nder the specific circumstances presented by the global COVID-19 pandemic, . . . [a] mask requirement does not violate the Confrontation Clause.” No. 4:20-CR-7 (CDL), 2020 WL 4917733, at *5 (M.D. Ga. Aug. 21, 2020). The court concluded that the reliability of masked testimony was “assured,” thus satisfying the second and more difficult part of the test in Craig (discussed in more length in our recent bulletin). This conclusion ultimately rested on the judgment that “being able to see a witness’s nose and mouth is not essential to testing the reliability of the testimony.” Id. at *7. Relying on Crittenden, two other federal district courts have held likewise. United States v. Clemons, No. CR RDB-19-0438, 2020 WL 6485087, at *2–3 (D. Md. Nov. 4, 2020); United States v. James, No. CR1908019001PCTDLR, 2020 WL 6081501, at *2 (D. Ariz. Oct. 15, 2020).
These opinions seem at odds with the practical experience of most people, who likely find it considerably more difficult to assess a person’s demeanor while their mouth, nose, and cheeks are obscured. I have sometimes failed to even recognize people I know when I have encountered them in public while wearing a mask. Yet the court in Crittenden reasoned that an assessment of a person’s facial features is no different and no more necessary than “subject[ing] the back of a witness’s neck to a magnifying glass to see if the hair raised during particularly probative questioning.” 2020 WL 4917733, at *7. This comparison, and the dismissal of the importance of facial expressions, seems dubious to me.
Crittenden and the decisions following it also appear to conflict with the pre-pandemic conclusions of courts that considered whether disguising parts of a witness’s face during their testimony unconstitutionally impaired the ability of trial participants to assess their demeanor. In Romero v. State, a case from 2005 that has been relied upon by a number of courts around the country, the Texas Court of Criminal Appeals held that a trial court violated a defendant’s confrontation rights when it permitted a witness to testify while wearing “dark sunglasses, a baseball cap pulled down over his forehead, and a long-sleeved jacket with its collar turned up and fastened so as to obscure [his] mouth, jaw, and the lower half of his nose.” 173 S.W.3d 502, 503–06 (Tex. Crim. App. 2005) (emphasis added). Although the trial judge may have had good reason to permit the unusual arrangement to protect the witness’s identity, this interest was not enough to overcome what the court saw as the larger problem: the disguise impaired both the defendant’s and others’ “ability to view a witness’s face, the most expressive part of the body and something that is traditionally regarded as one of the most important factors in assessing credibility.” Id. at 505–06. The arrangement of the trial court thus violated the Confrontation Clause. “To hold otherwise,” the appellate court reasoned, “is to remove the ‘face’ from ‘face-to-face confrontation.’” Id. at 506.
While not every court that has followed Romero has concluded that the use of a disguise violated a defendant’s confrontation right, they have generally endorsed its underlying rationale. In United States v. de Jesus-Casteneda, for example, the U.S. Court of Appeals for the Ninth Circuit found no Confrontation Clause violation where a witness who was working undercover in the Sinaloa drug cartel testified while wearing a “disguise in the form of a wig and mustache.” 705 F.3d 1117, 1120–21 (9th Cir. 2013). Distinguishing the case from Romero, the court concluded that “the reliability of the CI’s testimony was otherwise assured, because . . . despite his disguise, the jury was able to . . . see his entire face including his eyes and facial reactions to questions, and observe his body language.” Id. at 1121. Similarly, in People v. Smith, the Supreme Court of New York concluded that a “disguise consisting of a wig and facial hair” did not violate the Confrontation Clause because there was “no evidence that the disguise impaired the jury’s ability to assess the witnesses’ demeanor.” 57 A.D.3d 356, 358–59 (N.Y. App. Div. 2008). Collectively, these cases stand for the principle that the Confrontation Clause is implicated by the use of facial coverings, and it is violated when those coverings obscure a significant portion of the wearer’s face, which is critical to the ability to assess demeanor.
Post-pandemic decisions in civil cases have similarly recognized that masks interfere with the ability to assess witness demeanor. The U.S. District Court for the Southern District of New York, for example, has said it is “highly unlikely to allow trial witnesses to testify in court with a face covering” and that “there can be no question that mask-wearing significantly diminish[es] the value of in-person testimony.” Joffe v. King & Spalding LLP, No. 17-CV-3392 (VEC), 2020 WL 3453452, at *6 (S.D.N.Y. June 24, 2020). An Illinois court, presiding over a case with parties in North Carolina, noted how the face mask mandates in the Tar Heel state could impede the parties’ “ability to assess witness credibility” during depositions. Sonrai Sys., LLC v. Romano, No. 16 CV 3371, 2020 WL 3960441, at *4 (N.D. Ill. July 13, 2020). These cases add weight to the view that criminal defendants are deprived of their confrontation rights to the extent they are denied the ability to assess the demeanor and test the credibility of the witnesses against them.
Due Process Right to Have Jury Assess Witnesses. The use of masks by testifying witnesses also implicates defendants’ due process rights because they interfere with the jury’s ability to assess witness credibility. Although most opinions discussing the use of masks by testifying witnesses have not explicitly framed the issue in terms of due process, a number of courts have noted that masks impede the court’s and jury’s fact-finding functions. For example, the federal court in New Mexico, discussed in the preceding section, agreed with the parties that “facemasks [would] . . . meaningfully affect” the “core jury task” of assessing witness credibility. Robertson, 2020 WL 6701874, *1. In de Jesus-Casteneda, 705 F.3d at 1121, also discussed above, the court considered but left unresolved whether the testimony of a witness whose face was obscured while on the witness stand violated the defendant’s due process rights in light of the overwhelming evidence of guilt.
It is difficult to imagine that courts will be able to avoid grappling with the issue much longer, particularly in cases that rest heavily on witness testimony and witness credibility. The U.S. Supreme Court has said that “courts must always be sensitive to the problems of making credibility determinations” and has characterized “ ‘the look . . . of the witness: his hesitation, his calmness or consideration’ ” as one of the “ ‘most important elements’ ” of trial evidence. United States v. Raddatz, 447 U.S. 667, 679 (1980) (quoting Queen v. Bertrand, 16 Eng. Rep. 391, 399 (1867)). Given the centrality of witness credibility assessment to the criminal trial process, defendants may raise significant due process concerns in instances where masks function to deprive juries of the ability to meaningfully assess a witness’s demeanor.
An “Exquisitely Difficult” Challenge. As the U.S. District Court for the Eastern District of New York recently observed in United States v. Cohn, courts charged with guaranteeing a defendant’s trial rights, while simultaneously safeguarding the health of trial participants in the face of COVID-19, confront an “exquisitely difficult” challenge. United States v. Cohn, No. 19-CR-097 (GRB), 2020 WL 5050945, at *4 (E.D.N.Y. Aug. 26, 2020). One of the biggest difficulties involves the presentation of witness testimony, which presents a “singular obstacle” in criminal trials because “effective credibility evaluation . . . requires that witnesses testify without traditional masks.” Id. Yet unmasked testimony may create an undue risk to others in the courtroom, making it challenging for courts to devise a satisfactory procedure for resuming jury trials.
In Cohn, the court ultimately granted the defendant a bench trial over the objections of the prosecutor, who ordinarily can block requests for nonjury trials under the Federal Rules of Criminal Procedure. Id. at *11. Although the court did not expressly rule out the possibility of holding a criminal jury trial, stating only that “it remain[ed] unclear when a jury trial could commence in this particular case,” it found the circumstances too uncertain to proceed, given the considerable health risks to participants. Id. As the pandemic continues to reach new peaks, it is likely these kinds of concerns will intensify, further complicating the already “exquisitely difficult” challenge faced by trial courts responsible for protecting both a defendant’s trial rights and the health of those in attendance.