Saturday, August 1, 2020

GateHouse: The Confrontation Clause and the return of jury trials

Matthew T. Mangino
GateHouse Media
July 31, 2020
A murder trial resumed this week in New York after the COVID-19 pandemic shut the proceeding down in March. When the trial restarted, after nearly a four-month break, the courtroom was a different place.
The recently resumed trial featured court personnel, jurors, attorneys, witnesses and spectators donning all sorts of personal protective equipment. According to Frank Runyeon of, the judge “was decked out in white latex gloves, a blue face mask, spectacles and a plastic face shield as he sat behind plexiglass dividers mounted to the bench.”
The judge’s speech was muffled to the point that attorneys, sitting behind their own fortress of plexiglass walls, masks and face shields, often asked him to repeat himself. The return of jury trials in the midst of a pandemic is crucial - men and women accused of crimes have been sitting in jail awaiting their day in court. Those men and women are guaranteed a speedy trial.
However, bringing those accused of a crime to trial brings with it a host of problems - some of which may be around long after the pandemic is gone. At this point, the primary concern is the health and well-being of everyone involved in the process. That is being addressed in a manner that may contravene the U.S. Constitution.
The Sixth Amendment to the U.S Constitution provides various rights to criminal defendants, one of which is the right to be confronted with the witnesses against them. This right is derived from what is known as the Confrontation Clause.
Since the onset of the pandemic, many courts have conducted hearings via video or telephone. I have participated in virtual hearings. While they help move things along, witnesses and attorneys participating over Skype, Zoom or some other platform are often subject to delay or the freezing of the video and/or audio. The record, the transcription of the proceeding, is often a mess with lawyers talking over witnesses or witnesses talking over judges or a mix of both.
However, a criminal trial is different. In a criminal trial, a person’s liberty is at stake. Remote testimony is inadequate. In 1988, the U.S. Supreme Court said that the Confrontation Clause guarantees “a right to meet face to face all those who appear and give evidence at trial.”
One hundred years earlier, the Supreme Court said the “primary object” of the Confrontation Clause is to prevent depositions or ex parte affidavits from being used in court in lieu of a “personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.”
Can this be achieved when the lawyers conducting the examination are wearing a mask and the witness being examined is wearing a face covering as well? Can a juror adequately judge the credibility or believability of a witness who is wearing a mask?
The face-to-face encounter implicit in the Confrontation Clause is not only between accuser and accused, but between accuser and jury. Eugene Volokh, a blogger and professor at UCLA Law School, writing about a case involving a female witness wearing a headscarf, suggested, “That encounter enables the jurors ‘to obtain the elusive and incommunicable evidence of a witness’(s) deportment while testifying;′ an ability, our Supreme Court has explained, that is ‘as important a component of the right of confrontation as the defendant’s opportunity to cross-examine the adverse witness.’”
A witness with a face covering may be able to hide the pursing of lips, a smile or expression indicative of the witness’ comfort or unease, hesitance or confidence, indifference or nervousness.
A mask also puts the examiner at a disadvantage. Our system of zealous advocacy is based on a lawyer’s thorough probing of a witness to get at the truth. Cross-examination is often based on the observations of a trained trial attorney. Facial expressions and reactions to questioning often guide a lawyer through cross-examination.
The pandemic will end. The challenges to trials conducted remotely or without the protections of the Sixth Amendment will be around long into the future.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at and follow him on Twitter at @MatthewTMangino.
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