The ability to see someone’s facial expressions is often critical to determining credibility.
In order to control the spread of the novel coronavirus, Governor Gavin Newsom has imposed a mandatory mask order in California, requiring everyone to wear a mask when they are outside of their home. In addition, everyone inside of California courthouses must wear a face mask.These directives will likely help to slow or stop the spread of COVID-19. But as Dan E. Chambers, a criminal lawyer in Los Angeles, CA and the founder of the Chambers Law Firm, points out in this video, it may also affect a defendant’s constitutional rights.
This may happen in several ways. First, the confrontation clause of the U.S. constitution gives defendants in criminal cases the right to confront witnesses against them. This typically means that the witness appears in court and is subject to questioning by both the prosecutor and the defense attorney. Yet as most people know, a significant portion of our communication is nonverbal in nature. A person may say one thing — but if you are looking at their face, it may tell an entirely different story. Without the ability to see a witness’ full face, a defendant may not truly be able to control them.
For example, you are on trial for murder, there is one witness who is really crucial to your defense. When that witness gets on the stand with a mask on their face, it can be hard for the jury to judge their credibility. They won’t be able to see her smile, frown, or communicate in other ways. Because masks are often uncomfortable and may muffle words a bit, the jury may not fully understand what the witness is trying to say, or even the subtle nuances of their words. If you’re fighting for your life in court, is that what you want to happen?
Similarly, defendants in criminal trials have a right to due process and to have a jury of their peers hear the evidence against them. A criminal lawyer in Los Angeles, CA uses specific strategies to pick a jury that is both fair and impartial. This is done in the jury selection process, using things like jury questionnaires and orally questioning prospective jurors. Many things are taking into account during jury selection — such as the facial expressions of jurors when they are asked certain questions or when an attorney says something. If prospective jurors are all wearing masks, then it will be difficult for a defense lawyer to effectively select a jury.
While these issues haven’t been addressed by the courts, one judge in San Francisco may have come up with a solution, based on a request by a public defender. All witnesses will be required to wear transparent masks, provided by the court, so that their facial expressions and nonverbal communications can be seen by the jury and others.
Finally, defendants in criminal cases have a right to a public trial. However, most courthouses are strictly limiting who can come into the courtroom. In most cases, just the court staff, jurors, attorneys and the defendant can be in the court, along with whatever witness may be testifying. While live screening options are available, this may not be sufficient, especially for members of both the defendant’s and victim’s families.
We don’t have solid answers from the courts about how to protect defendant’s rights during criminal trials while the pandemic is ongoing. Working with a highly skilled criminal lawyer in Los Angeles, CA can help you achieve the best possible outcome for your case. If you have been charged with a crime or are facing trial, contact the Chambers Law Firm today at 714-760-4088 or dchambers@clfca.com to schedule a free initial consultation.
