12/08/2020
DO FACE MASK VIOLATE THE RIGHT OF CONFRONTATION?
Recently, the eighth judicial district court (Clark County, Nevada) issued an order that everyone in court is required to wear a face mask at all times including witnesses during jury trials. (As of the date of this writing, Administrative Order 20-24 has suspended all jury trials in Clark County for a second time due to an alarming increase in Covid 19 cases in Nevada. Trials are suspended through January 11, 2021).
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. In a criminal trial, a person’s liberty is at stake. In Coy v. Iowa, 487 U.S. 1012 (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." In Coy, a screen was placed between the defendant and the child sexual assault victims during their testimony. This screen blocked the defendant from the child witnesses' view but allowed the defendant to hear and dimly perceive the children. The court in Coy stated, "It is difficult to imagine a more obvious or damaging violation of the defendant's right to a face-to-face encounter." Id. at 1020, 108 S.Ct. at 2803.
The Nevada has Supreme Court has held that obscuring the view of a witness violates the confrontation clause. Smith v. State, 111 Nev. 499, 894 P.2d 974 (Nev. 1995). In Smith the Nevada Supreme Court found reversible error where the prosecutor intentionally positioned himself such that he blocked the Defendant’s view of the victim and vice versa.. Smith v. State, 111 Nev. 499, 894 P.2d 974 (Nev. 1995). Face to face confrontation would be defeated by a face obscured and covered by a mask. If witnesses testify wearing masks, the coverings will interfere with jurors’ responsibility to assess witnesses’ credibility. See, NEV. J.I. 2.07 “The credibility or “believability” of a witness should be determined by his or her manner upon the stand . . .”
The primary object of the Confrontation Clause is 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. The face-to-face encounter implicit in the Confrontation Clause is not only between accuser and accused, but between accuser and jury. People make judgments about a witness not just based on what they say, but how they say it. Face coverings, would interfere with this time-honored process. Therefore in the view of this author face coverings do in fact violate the Confrontation Clause.
