Could a defendant’s right to confront witnesses at trial be violated if a trial judge requires everyone to wear a face mask at trial? The Fourth Circuit has determined that the answer is “no.”
In October 2020, Officer Maynard of the Logan Police Department and another officer arrested Robert Wilfong. Wilfong had outstanding warrants in West Virginia and was publicly intoxicated. At the police station, Wilfong requested to use the restroom. Maynard escorted Wilfong to the restroom but Maynard eventually dragged him out of the bathroom and slammed Wilfong’s head into a door frame and then dropped him to the ground. Wilfong lay on the floor bleeding out of his head as an ambulance was called.
Maynard was indicted on one count of deprivation of rights under color of law. During the trial, the trial judge ordered all trial participants, including witnesses, to wear face masks because of the Covid-19 pandemic. Maynard’s attorneys objected and requested the use of face shields instead, though the request was denied. The jury eventually convicted him of violating Wilfong’s rights by using excessive force on him.
The appeals court upheld the trial judge’s decision. The Fourth Circuit determined that Mayfield had sufficient right to confront the witnesses against him and found no violation of the confrontation clause.
Criminal defendants have a right to “confront” their accusers in open court under the Sixth Amendment of the federal constitution. This right is typically interpreted to mean that the defendants, or their attorneys, have a right to cross-examine witnesses against the defendant. The questioning is to be face to face in open court. Alternatively, the right to confront can be satisfied absent a face to face confront if the denial is for an important public policy and that the testimony is otherwise reliable.
The appeals court agreed that protection against the spread of Covid-19 was an important public policy. The court noted that by November 2021, nearly 5,000 people had died in West Virginia alone and more than 700,000 had died of Covid-19 in the United States. Wearing face masks only covering the nose and mouth was an acceptable alternative to unreasonably delaying trial. While face shields were an option, the CDC and medical community had specifically recommended face masks.
The real debate was whether a jury could assess witnesses while they were wearing facial masks. Facial mask obstruct vision of facial expressions which may hinder whether a jury can assess their credibility. However, witness testimony is about more than just their facial expressions. Jurors can also evaluate witnesses’ words, body language, mannerisms, and other factors when a witness is testifying.
Moreover, the witnesses were present in the courtroom with the defendant and jury. Since the pandemic, many courts have permitted witnesses to testify by remote platform such as zoom even though they wouldn’t be in the same room as the jury. If it was not a violation of the right
to confront witnesses while the witness is on zoom, an in-person witness wearing a face mask has no impact on a defendant’s constitutional rights.
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