Will Masks Interfere with Courtroom Justice?

Joel Fox
Editor and Co-Publisher of Fox and Hounds Daily

The fact that wearing or not wearing a mask has become a political symbol of state authority versus freedom seems so far out of bounds with medical reality. Think of masks representing the old marketing slogan some apple producers thought up: An apple a day keeps the doctor away. Wearing a mask, along with following other recommended procedures from medical professionals, is the best way to avoid, stop the spread, or reduce the effect of COVID-19. This was said very well in a column written by former state Republican Party chairman Ron Nehring on FlashReport, which is reprinted below. 

There should be no objections to wearing a mask. But there are quirky situations when wearing masks in carrying out responsibilities might cause a problem. Such a concern has been raised that wearing a mask interferes with courtroom justice. The reason: the messages relayed by facial expressions from jurors or witnesses might be lost. 

Facial expressions tell us a lot about people’s emotions and thoughts. Any professional actor will tell you they are a tool of the trade. With courtrooms across the state opening in fits and starts, the question of masks to get an understanding of a what a juror or a witness is thinking in a court trial might be revealed with a smile or a smirk. 

One legal challenge to mask wearing already occurred in Alameda County. In an asbestos case, attorneys for the defendant petitioned the California Supreme Court on the concern that jurors questioned during the voir dire jury selection process could hide their true reactions to a question behind a mask, despite what they might say. While making an answer to the attorneys’ question, a facial expression could indicate that the words don’t represent the juror’s true feelings. 

An opposing attorney dismissed the challenge saying that prospective jurors had taken an oath to tell the truth and, besides, a skilled attorney’s questioning technique could assess a prospective juror’s impartiality. 

The Supreme Court denied the petition, but this issue is not likely to go away. 

Consider that in cramped court rooms, even if social distancing is practiced, certain witnesses may insist on wearing a mask. A witness may have a legitimate concern, especially if he or she falls into the vulnerable groups on age and weakened immunity systems. But, what might a witness hide by blocking facial features behind a mask? 

Justice delayed is justice denied, we are told, yet the pandemic has set the judicial calendar way back so that court officials, attorneys and plaintiffs and defendants want action.  With a continued threat from the virus, and the common-sense orders that masks should be worn, an official declaration from the governor that all Californians wear masks in public in high-risk settings, shouldn’t confined courts follow that requirement? 

If they do, however, is another hurdle in seeking a fair trial created? Perhaps, it seems a small item against the great landscape painted by the pandemic upending our lives. However, the concern for questioning jurors and even witnesses behind a mask indicates how the virus has seeped into all corners of public life.

 

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