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COVID-19 Threatens the Right to a Fair Trial

 Posted on November 05, 2020 in Legal

Pima County criminal defense lawyerWhen accused of a crime, everyone deserves a fair trial in court. That truth is embedded in the Constitution under the Sixth Amendment. But the COVID-19 pandemic has threatened the integrity of those trials, leaving defendants at risk. With jury trials slowly beginning again in Pima County, it’s important to understand the ways COVID-19 can impact your right to due process.

The widespread use of face masks has emerged as one of the most effective ways to stop the spread of coronavirus, though it can have a troubling impact in trial proceedings. Each state has its own policy on wearing face masks in courthouses, and Arizona’s is relatively lenient. The Arizona Supreme Court mandated face masks for court employees, visitors and participants, but a judicial officer can let a testifying witness remove or pull down their mask while testifying—if it’s deemed necessary and appropriate physical distancing measures are followed.

When trial participants wear face masks, it can infringe on a defendant’s rights because obstructing someone’s face makes it impossible to assess their demeanor, which is one of the four key elements in the Confrontation Clause. The Confrontation Clause within the Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.”

In the George Washington Law Review’s September 2020 issue, Julia Simon-Kerr noted that a person’s nose, mouth, and jaw are integral to showing expression and emotion—and obscuring these parts of the face makes it “impossible to ‘read’ demeanor.” She believes the use of face masks will be vulnerable to legal challenges because it prevents jury members from accurately assessing a witness’ demeanor when testifying in court. Those concerns stretch beyond the witness stand, however, because face masks also prevent a sitting judge from determining the impartiality of a juror.

“From the Immigration and Nationality Act to the Federal Rules of Civil Procedure to the Confrontation Clause, Congress and the courts have made clear that assessing demeanor is essential to credibility judgments,” Simon-Kerr wrote.

It would also be extremely unlikely for appellate courts to overturn a decision about the credibility of witnesses, Simon-Kerr argues, because “without having been present at trial, an appellate judge could not assess the cues that make up the witness’ demeanor, such as facial expressions, eye contact, attitude, body language, length of pauses, hesitation, sincerity, gestures, candor, tone of voice, expression, dress, [and] grooming habits.”

Since the law puts so much weight in judging demeanor, social standards are embedded into legal proceedings, and so too are any negative consequences for those who do not live up to these standards.

“Appearing believable…is equated with being believable,” Simon-Kerr writes. “In this way, the social construct of credibility offers a mechanism through which the behavioral norms of powerful and educated judges, or of a set of ‘representative’ jurors, are made manifest in the law.”

She argues that the demeanor requirement “ignores the scholarship pointing out that the courtroom is still in many ways shaped to reward methods of communicating that are largely white and male,” leaving those who are not white and male susceptible to being perceived as less credible.

This inherent disparity becomes even more apparent in the era of COVID-19 because in-person juries can prevent a defendant's right to a jury composed of a fair cross-section of the community. The global virus has negatively impacted people of color and low-income communities more than upper-class groups, and these communities are reluctant to attend juror vior dire—depriving the defendant of a jury that is an accurate reflection of their community.

Cara Bales of Law360 argued that because the elderly and people of color are more likely to be hospitalized by the virus, they may be more reluctant to serve. This means defendants in in-person proceedings could face a jury that is homogenous in race, age, and social class.

Bales reported that courts are currently grappling with how to balance public health concerns with defendants’ right to a timely trial by jurors of their peers. The challenge is significant. In San Diego last week, only 41 of 800 jurors showed up for jury duty, according to Courthouse News Service, since many people are reluctant to put themselves at risk.

Crafting representative juries is not a new struggle brought on by COVID-19. In fact, Bales wrote that the pandemic is “exacerbating an existing problem” because these vulnerable groups have historically been excluded from jury panels. The courts must determine how to ensure the integrity of jury trials in the era of COVID-19, or else every proceeding will risk the violation of a person’s civil rights.

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