COVID-19 and the Use of Masks by Testifying Witnesses in Criminal Trials

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 [...]