If the Mask Fits: the Unconstitutionality of Face Masks in Criminal Trials During Covid-19

• Publication year: 2021

If The Mask Fits: The Unconstitutionality of Face Masks in Criminal Trials During COVID-19

Nicole Morrison

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If The Mask Fits: The Unconstitutionality of Face Masks in Criminal Trials During COVID-19^*

I. Introduction

Society, and certainly the courts, did not have time to prepare and adapt to the unprecedented COVID-19 (coronavirus) pandemic before the effects of the pandemic swept through the nation. The first coronavirus case within the United States was reported on January 20, 2020.¹ The coronavirus spread at an alarming rate, and by March 11, 2020, the World Health organization (WHo) declared the coronavirus a pandemic.² Just two days later, the President of the United States, Donald Trump, declared a National Emergency.³ By January 10, 2021, the United States faced 21,761,186 cumulative cases and 365,886 total deaths from the coronavirus.⁴

In the wake of the rapidly spreading virus, stay-at-home and shelter-in-place orders went into effect in the majority of states by late March

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2020.⁵ By the end of March, the vast majority of state supreme courts announced judicial emergencies, closed their doors, postponed proceedings, or limited court activity to various degrees.⁶ The Supreme Court of Georgia issued an Order Declaring Statewide Judicial Emergency⁷ on March 14, 2020, which has been extended ten times with various amendments and is still in effect as of January 10, 2021.⁸ In addition, various courts across the nation individually issued "orders relating to court business, operating status, and public and employee safety" in the months following the coronavirus outbreak.⁹ Specifically, all of Georgia's United States District Courts¹⁰ entered various orders implementing new procedures in response to the coronavirus, including suspending court proceedings and enforcing new health and safety protocols.¹¹ Beginning in March 2020, the United States Court of Appeals for the Eleventh Circuit introduced live-streaming for oral arguments,

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limited access to the courthouse, and suspended paper filing requirements.¹² The Supreme Court of the United States closed to the public indefinitely beginning March 12, 2020, while also postponing oral arguments for March and April 2020.¹³

With courts at all levels in stalemate for months, many courts have implemented creative and untraditional court procedures to allow cases to move forward during the coronavirus pandemic. While some courts are allowing for alternatives to in-person court appearances by remote videoconferencing,¹⁴ many courts are beginning to reopen with the condition that those in the courtroom wear masks and keep space between each other.¹⁵ It is becoming common practice for courts to implement new safety and health measures to prevent the spread of the coronavirus while allowing cases to continue in-person.¹⁶

Naturally, a shock has hit the judicial system. Courtrooms across the nation are rapidly transitioning to ensure all occupants are distanced and all parties are wearing face coverings. The fear of spreading the coronavirus is on everyone's minds. In such unprecedented times, necessary protections such as masks seem essential. Nonetheless, hiding a witness's face behind a mask raises serious questions: What about tradition? What about precedent? What about the Constitution? The right to face an accuser at trial is a hallmark of the American justice

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system.¹⁷ The very foundation and traditions of our court system are being questioned and pushed.

As new, untraditional, and unprecedented court procedures are implemented, courts at all levels must tread lightly when making changes to the criminal trial process. The Bill of Rights includes the all-important Sixth Amendment,¹⁸ which aims to protect the rights of a criminal defendant while defending his liberties during trial. As criminal proceedings are resuming in-person and with masks, every American court should concern itself with serious violations of the Sixth Amendment Confrontation Clause, which provides that "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ."¹⁹ A crucial issue beginning to emerge for all courts across the nation is whether confronting a witness whose face is covered with a mask is a violation of the Constitution under the Confrontation Clause.²⁰ United States Supreme Court precedent regarding the importance of and requirements of the Confrontation Clause, as well as lower court decisions regarding facial disguises during criminal trials, provide some guidance. Nonetheless, there is no conclusive answer to the newfound requirement of wearing masks.

Though no conclusive answer has specifically been provided on the constitutionality of wearing masks during criminal trials, this Comment will show that the Supreme Court in Crawford v. Washington,²¹ solidified the criminal defendant's right to confront the witnesses against him face-to-face and limited the possibility for exceptions to this right. The Crawford decision established that judges should not be permitted to make subjective judgments overriding the Constitutional protections of criminal defendants, leaving little room for courts to make changes to the right to face-to-face confrontation, even in such instances as a global pandemic.

This Comment takes the position that having witnesses in criminal trials wear face masks violates the Confrontation Clause. The recent Confrontation Clause jurisprudence of the United States Supreme Court, specifically in Crawford, makes clear the Sixth Amendment requires face-to-face confrontation in the most literal sense, which cannot be dispensed with at the discretion of judges. Part I provides an introduction to the novel coronavirus and sets the framework for a discussion of the

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unconstitutionality of face masks during criminal trials. Part II looks at the history of the Confrontation Clause, specifically the right to face-to-face confrontation; precedent set by the Supreme Court answering Confrontation Clause questions; and various federal circuit and state court approaches to face coverings under the Confrontation Clause. Part III analyzes an order from the United States District Court for the Middle District of Georgia that addresses the constitutionality of face masks at criminal trials during the global pandemic. Part IV addresses the appropriate Supreme Court test, the Crawford test, which supports the determination that masks are unconstitutional during criminal trials; the potential impacts on criminal defendants if mask-wearing witnesses are permitted to testify; and the potential remedies to ensure the health and safety of participants without using face masks.

II. HISTORY

A. Origin of Face-to-Face Confrontation

The concept behind the Confrontation Clause and the right to face-to-face confrontation goes back long before the drafting of the Constitution "with lineage that traces back to the beginnings of Western legal culture."²² The Supreme Court has stated, and shown respect for, the fact that the right to face-to-face confrontation comes from deep historical roots, dating back as far as Roman Law.²³ The Roman Governor Festus, between the years 80 and 90, was quoted stating: "It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face to face, and has been given a chance to defend himself against the chargers."²⁴

Centuries later, Sir Walter Raleigh's infamous trial in England in 1603 raised questions as to the right of an accused to confront the witness against him.²⁵ After allegations of treason, Raleigh "demanded that the judges call [the witness] to appear, arguing that 'the Proof of the Common Law is by witness and jury: let [the witness] be here, let him speak it. Call my accuser before my face . . . .'"²⁶ Raleigh's demand was denied, and he was sentenced to death.²⁷ After cries of injustice, English statutory and judiciary reform took place, developing the common law right to

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confrontation and specifically requiring witnesses to confront the accused face-to-face.²⁸

In the United States, by the time of the Declaration of Independence, many states had individually adopted the right to confrontation.²⁹ The drafters of the Constitution of the United States of America, however, did not originally include the right to confrontation in the Constitution.³⁰ In response to this omission, Abraham Holmes at the Massachusetts ratifying convention expressed concern that "whether [the defendant] is to be allowed to confront the witnesses and have the advantage of cross-examination, we are not yet told . . . ."³¹ In addition, a well-known Antifederalist, the "Federal Farmer," wrote "Nothing can be more essential than the cross examining [of] witnesses, and generally before the triers of the facts in question . . . ."³² Following these public concerns, the First Congress in 1789 passed and proposed for ratification the Confrontation Clause in the Sixth Amendment.³³

The right to face-to-face confrontation in criminal trials has since remained a longstanding tradition in the United States. The reason face-to-face confrontation has persisted throughout centuries is based on the "profound effect" of a witness facing the person the witness is accusing.³⁴ There "is something deep in human nature" which makes it essential to have a face-to-face meeting during a criminal trial; the right to confrontation is "essential to fairness."³⁵ Furthermore, inherent in human nature is that "[i]t is always more difficult to tell a lie about a person 'to his face' than 'behind his back.'"³⁶ When forced to face the man he accuses, the witness's "demeanor upon the stand and the manner in which he gives his testimony [shows] whether he is worthy of belief."³⁷ To force the witness to look upon the defendant, the witness "may feel quite differently when he has to repeat his story looking at the man whom he will harm...