If The Mask Fits: The Unconstitutionality of Face Masks in Criminal Trials During COVID-19

Mercer Law Review Mercer Law Review

Volume 72

Number 4

Eleventh Circuit Survey

Article 15

7-2021

If The Mask Fits: The Unconstitutionality of Face Masks in If The Mask Fits: The Unconstitutionality of Face Masks in

Criminal Trials During COVID-19 Criminal Trials During COVID-19

Nicole Morrison

Follow this and additional works at: https://digitalcommons.law.mercer.edu/jour_mlr

Part of the Criminal Procedure Commons, and the Health Law and Policy Commons

Recommended Citation Recommended Citation

Morrison, Nicole (2021) "If The Mask Fits: The Unconstitutionality of Face Masks in Criminal Trials During

COVID-19,"

Mercer Law Review

: Vol. 72 : No. 4 , Article 15.

Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol72/iss4/15

This Comment is brought to you for free and open access by the Journals at Mercer Law School Digital Commons.

It has been accepted for inclusion in Mercer Law Review by an authorized editor of Mercer Law School Digital

Commons. For more information, please contact repository@law.mercer.edu.

Morrison - BP (Do Not Delete)

1261

If The Mask Fits: The

Unconstitutionality of Face Masks

in Criminal Trials During

COVID-19

I. INTRODUCTION

Society, and certainly the courts, did not have time to prepare and

adapt to the unprecedented COVID-19 (coronavirus) pandemic before the

effects of the pandemic swept through the nation. The first coronavirus

case within the United States was reported on January 20, 2020.

The

coronavirus spread at an alarming rate, and by March 11, 2020, the

World Health Organization (WHO) declared the coronavirus a

pandemic.

Just two days later, the President of the United States,

Donald Trump, declared a National Emergency.

By January 10, 2021,

the United States faced 21,761,186 cumulative cases and 365,886 total

deaths from the coronavirus.

In the wake of the rapidly spreading virus, stay-at-home and shelter-

in-place orders went into effect in the majority of states by late March

* Professor Fleissner, thank you for your invaluable wisdom, time, and guidance.

Jonathan Perry Waters, Esquire, thank you for inspiring me to write about this topic and

your continued enthusiasm. Lindsey Daugherty and Geoffrey Morrison, my family, thank

you for your unwavering support and encouragement.

1 Michelle L. Holshue, M.P.H., et. al., First Case of 2019 Novel Coronavirus in the United

States, T

HE NEW ENGLAND JOURNAL OF MEDICINE,

https://www.nejm.org/doi/full/10.1056/NEJMoa2001191 (last visited Jan. 1, 2021).

2 AJMC Staff, A Timeline of COVID-19 Developments in 2020,

AJMC,

https://www.ajmc.com/view/a-timeline-of-covid19-developments-in-2020 (last visited Jan.

1, 2021).

3 Donald J. Trump, Proclamation on Declaring a National Emergency Concerning the

Novel Coronavirus Disease (COVID-19) Outbreak, T

HE WHITE HOUSE,

https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-

emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/ (last visited Jan. 1,

2021).

4 United States of America Situation, W

ORLD HEALTH ORGANIZATION,

https://covid19.who.int/region/amro/country/us (last visited Jan. 10, 2021).

Morrison - BP (Do Not Delete)

1262 MERCER LAW REVIEW [Vol. 72

2020.

By the end of March, the vast majority of state supreme courts

announced judicial emergencies, closed their doors, postponed

proceedings, or limited court activity to various degrees.

The Supreme

Court of Georgia issued an Order Declaring Statewide Judicial

Emergency

on March 14, 2020, which has been extended ten times with

various amendments and is still in effect as of January 10, 2021.

addition, various courts across the nation individually issued “orders

relating to court business, operating status, and public and employee

safety” in the months following the coronavirus outbreak.

Specifically,

all of Georgia’s United States District Courts

entered various orders

implementing new procedures in response to the coronavirus, including

suspending court proceedings and enforcing new health and safety

protocols.

Beginning in March 2020, the United States Court of Appeals

for the Eleventh Circuit introduced live-streaming for oral arguments,

5 Sarah Mervosh, et. al., See Which States and Cities Have Told Residents to Stay at

Home, T

HE NEW YORK TIMES, https://www.nytimes.com/interactive/2020/us/coronavirus-

stay-at-home-order.html (archived as of Apr. 20, 2020).

6 State court closures in response to the coronavirus (COVID-19) pandemic between

March and November, 2020, B

ALLOTPEDIA,

https://ballotpedia.org/State_court_closures_in_response_to_the_coronavirus_(COVID-

19)_pandemic,_2020 (archived as of Nov. 4, 2020).

7 Chief Justice Harold D. Melton, Order Declaring Statewide Judicial Emergency,

UPREME COURT OF GEORGIA, https://www.gasupreme.us/wp-content/uploads/2020/03/CJ-

Melton-amended-Statewide-Jud-Emergency-order.pdf (last visited Jan. 1, 2021).

8 Court Information Regarding The Coronavirus, S

UPREME COURT OF GEORGIA,

https://www.gasupreme.us/ (last visited Jan. 10, 2021).

9 Judiciary Preparedness for Coronavirus (COVID-19), U

NITED STATES COURTS,

https://www.uscourts.gov/news/2020/03/12/judiciary-preparedness-coronavirus-covid-19

(archived as of June 3, 2020). The United States District Court for the Northern District of

Georgia’s courthouse in Rome, Georgia, was one of the first district courts to close their

courthouse in the nation after an employee contracted symptoms of the coronavirus on

March 18, 2020. Id.

10 Courts in Georgia, B

ALLOTPEDIA,

https://ballotpedia.org/Courts_in_Georgia#Federal_district_courts (last visited Jan. 10,

2021).The United States District Court for the Northern District of Georgia, the United

States District Court for the Middle District of Georgia, and the United States District

Court for the Southern District Court of Georgia are the three federal district courts in

Georgia.

11 Time Periods in General Order 20-01 Further Extended Through January 3, 2021,

NITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA,

http://www.gand.uscourts.gov/news/time-periods-general-order-20-01-further-extended-

through-january-3-2021 (last visited Jan. 10, 2021); COVID 19: Public Health and Safety,

NITED STATES DISTRICT COURT MIDDLE DISTRICT OF GEORGIA,

https://www.gamd.uscourts.gov/news/covid-19-public-health-and-safety (last visited Jan.

10, 2021); COVID-19, U

NITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF

GEORGIA, https://www.gasd.uscourts.gov/covid-19 (last visited Jan 10, 2021).

Morrison - BP (Do Not Delete)

2021] IF THE MASK FITS 1263

limited access to the courthouse, and suspended paper filing

requirements.

The Supreme Court of the United States closed to the

public indefinitely beginning March 12, 2020, while also postponing oral

arguments for March and April 2020.

With courts at all levels in stalemate for months, many courts have

implemented creative and untraditional court procedures to allow cases

to move forward during the coronavirus pandemic. While some courts are

allowing for alternatives to in-person court appearances by remote

videoconferencing,

many courts are beginning to reopen with the

condition that those in the courtroom wear masks and keep space

between each other.

It is becoming common practice for courts to

implement new safety and health measures to prevent the spread of the

coronavirus while allowing cases to continue in-person.

Naturally, a shock has hit the judicial system. Courtrooms across the

nation are rapidly transitioning to ensure all occupants are distanced and

all parties are wearing face coverings. The fear of spreading the

coronavirus is on everyone’s minds. In such unprecedented times,

necessary protections such as masks seem essential. Nonetheless, hiding

a witness’s face behind a mask raises serious questions: What about

tradition? What about precedent? What about the Constitution? The

right to face an accuser at trial is a hallmark of the American justice

12 Chief Judge Ed Carnes, GENERAL ORDER NO. 45 Oral Arguments By Audio or

Teleconferencing, I

N THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT,

http://www.ca11.uscourts.gov/sites/default/files/courtdocs/clk/GeneralOrder45.pdf (last

visited Jan. 10, 2021); Chief Judge Ed Carnes, GENERAL ORDER NO. 44

RESTRICTIONS ON VISITORS TO THE COURT AND TEMPORARY SUSPENSION OF

PAPER FILING REQUIREMENTS, I

N THE UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT,

http://www.ca11.uscourts.gov/sites/default/files/courtdocs/clk/GeneralOrder44.pdf (last

visited Jan. 10, 2021).

13 Tucker Higgins, Supreme Court postpones arguments because of coronavirus, citing

Spanish flu precedent, CNBC, https://www.cnbc.com/2020/03/16/supreme-court-postpones-

arguments-over-coronavirus.html (last visited Jan. 10, 2021).

14 William M. Droze & Ashley Cameron, Litigating in the Age of COVID-19, TROUTMAN

PEPPER

, https://www.troutman.com/insights/litigating-in-the-age-of-covid-19.html (last

visited Jan. 10, 2021).

15 As Courts Restore Operations, COVID-19 Creates a New Normal, UNITED STATES

COURTS, https://www.uscourts.gov/news/2020/08/20/courts-restore-operations-covid-19-

creates-new-normal (last visited Jan. 10, 2021).

16 Id. “For more than 230 years, the federal Judiciary has spanned the horseback era

to the internet age, but in one key aspect it has never changed. Just as in the nation’s

earliest years, the Constitution still requires federal courts to conduct many critical legal

proceedings in person.” Id.

Morrison - BP (Do Not Delete)

1264 MERCER LAW REVIEW [Vol. 72

system.

The very foundation and traditions of our court system are

being questioned and pushed.

As new, untraditional, and unprecedented court procedures are

implemented, courts at all levels must tread lightly when making

changes to the criminal trial process. The Bill of Rights includes the all-

important Sixth Amendment,

which aims to protect the rights of a

criminal defendant while defending his liberties during trial. As criminal

proceedings are resuming in-person and with masks, every American

court should concern itself with serious violations of the Sixth

Amendment Confrontation Clause, which provides that “In all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with

the witnesses against him . . . .”

A crucial issue beginning to emerge for

all courts across the nation is whether confronting a witness whose face

is covered with a mask is a violation of the Constitution under the

Confrontation Clause.

United States Supreme Court precedent

regarding the importance of and requirements of the Confrontation

Clause, as well as lower court decisions regarding facial disguises during

criminal trials, provide some guidance. Nonetheless, there is no

conclusive answer to the newfound requirement of wearing masks.

Though no conclusive answer has specifically been provided on the

constitutionality of wearing masks during criminal trials, this Comment

will show that the Supreme Court in Crawford v. Washington,

solidified

the criminal defendant’s right to confront the witnesses against him face-

to-face and limited the possibility for exceptions to this right. The

Crawford decision established that judges should not be permitted to

make subjective judgments overriding the Constitutional protections of

criminal defendants, leaving little room for courts to make changes to the

right to face-to-face confrontation, even in such instances as a global

pandemic.

This Comment takes the position that having witnesses in criminal

trials wear face masks violates the Confrontation Clause. The recent

Confrontation Clause jurisprudence of the United States Supreme Court,

specifically in Crawford, makes clear the Sixth Amendment requires

face-to-face confrontation in the most literal sense, which cannot be

dispensed with at the discretion of judges. Part I provides an introduction

to the novel coronavirus and sets the framework for a discussion of the

17 Id.

18 U.S. Const. amend VI.

19 Id.

20 See United States v. Crittenden, No. 420-CR-7 (CDL), 2020 U.S. Dist. LEXIS 151950

(M.D. Ga. Aug. 21, 2020).

21 541 U.S. 36 (2004).

Morrison - BP (Do Not Delete)

2021] IF THE MASK FITS 1265

unconstitutionality of face masks during criminal trials. Part II looks at

the history of the Confrontation Clause, specifically the right to face-to-

face confrontation; precedent set by the Supreme Court answering

Confrontation Clause questions; and various federal circuit and state

court approaches to face coverings under the Confrontation Clause. Part

III analyzes an order from the United States District Court for the Middle

District of Georgia that addresses the constitutionality of face masks at

criminal trials during the global pandemic. Part IV addresses the

appropriate Supreme Court test, the Crawford test, which supports the

determination that masks are unconstitutional during criminal trials;

the potential impacts on criminal defendants if mask-wearing witnesses

are permitted to testify; and the potential remedies to ensure the health

and safety of participants without using face masks.

II.

HISTORY

A. Origin of Face-to-Face Confrontation

The concept behind the Confrontation Clause and the right to face-to-

face confrontation goes back long before the drafting of the Constitution

“with lineage that traces back to the beginnings of Western legal

culture.”

The Supreme Court has stated, and shown respect for, the fact

that the right to face-to-face confrontation comes from deep historical

roots, dating back as far as Roman Law.

The Roman Governor Festus,

between the years 80 and 90, was quoted stating: “It is not the manner

of the Romans to deliver any man up to die before the accused has met

his accusers face to face, and has been given a chance to defend himself

against the chargers.”

Centuries later, Sir Walter Raleigh's infamous trial in England in

1603 raised questions as to the right of an accused to confront the witness

against him.

After allegations of treason, Raleigh “demanded that the

judges call [the witness] to appear, arguing that ‘the Proof of the Common

Law is by witness and jury: let [the witness] be here, let him speak it.

Call my accuser before my face . . . .’”

Raleigh’s demand was denied, and

he was sentenced to death.

After cries of injustice, English statutory

and judiciary reform took place, developing the common law right to

22 Coy v. Iowa, 487 U.S. 1012, 1015 (1988).

23 Crawford, 541 U.S. at 43; Coy, 487 U.S. at 1015.

24 Coy, 487 U.S. at 1015–16 (quoting Acts of the Apostles 25:16).

25 Crawford, 541 U.S. at 44.

26 Id. (quoting 2 How. St. Tr., at 15–16 (1603)).

27 Id.

Morrison - BP (Do Not Delete)

1266 MERCER LAW REVIEW [Vol. 72

confrontation and specifically requiring witnesses to confront the accused

face-to-face.

In the United States, by the time of the Declaration of Independence,

many states had individually adopted the right to confrontation.

The

drafters of the Constitution of the United States of America, however, did

not originally include the right to confrontation in the Constitution.

response to this omission, Abraham Holmes at the Massachusetts

ratifying convention expressed concern that “whether [the defendant] is

to be allowed to confront the witnesses and have the advantage of cross-

examination, we are not yet told . . . .”

In addition, a well-known

Antifederalist, the “Federal Farmer,” wrote “Nothing can be more

essential than the cross examining [of] witnesses, and generally before

the triers of the facts in question . . . .”

Following these public concerns,

the First Congress in 1789 passed and proposed for ratification the

Confrontation Clause in the Sixth Amendment.

The right to face-to-face confrontation in criminal trials has since

remained a longstanding tradition in the United States. The reason face-

to-face confrontation has persisted throughout centuries is based on the

“profound effect” of a witness facing the person the witness is accusing.

There “is something deep in human nature” which makes it essential to

have a face-to-face meeting during a criminal trial; the right to

confrontation is “essential to fairness.”

Furthermore, inherent in

human nature is that “[i]t is always more difficult to tell a lie about a

person ‘to his face’ than ‘behind his back.’”

When forced to face the man

he accuses, the witness’s “demeanor upon the stand and the manner in

which he gives his testimony [shows] whether he is worthy of belief.”

To force the witness to look upon the defendant, the witness “may feel

quite differently when he has to repeat his story looking at the man whom

he will harm greatly by distorting or mistaking the facts. He can now

understand what sort of human being that man is.”

As President

Eisenhower profoundly stated, “In this country, if someone dislikes you,

28 Id.

29 Id. at 48.

30 Id.

31 Id. (quoting 2 Debates on the Federal Constitution 110–111, J. Elliot 2d ed. 1863).

32 Id. at 49 (quoting R. Lee, Letter IV by the Federal Farmer (Oct. 12, 1787)).

33 Id. at 49.

34 Coy, 487 U.S. at 1020.

35 Id. at 1017–19.

36 Id. at 1019.

37 Mattox v. United States, 156 U.S. 237, 242–43 (1895).

38 Jay v. Boyd, 351 U.S. 345, 375–76 (1956) (Douglas, J., dissenting).

Morrison - BP (Do Not Delete)

2021] IF THE MASK FITS 1267

or accuses you, he must come up in front. He cannot hide behind the

shadow.”

Not surprisingly, the Supreme Court has always upheld the

notion that the Confrontation Clause guarantees a criminal defendant

the right to meet face-to-face the witnesses against him.

B. Supreme Court Precedent: The Confrontation Clause

With that said, the Supreme Court has not held the right to face-to-

face confrontation is an absolute right and has, at times, dispensed with

a defendant’s right to face-to-face confrontation. Although there is

substantial precedent upholding the importance of face-to-face

confrontation, precedent on whether and when it is permissible to admit

testimony that is not face-to-face is contradictory.

1. Coy: Face-to-Face Confrontation and the Placement of

a Screen

In Coy v. Iowa,

the Supreme Court emphasized the fundamental

importance of a defendant’s right to confrontation when holding

unconstitutional the placement of a screen between the defendant and

witnesses during trial testimony.

In Coy, the two witnesses, two 13-

year-old girls, alleged that the defendant had sexually assaulted them.

That same year, the state of Iowa enacted a statute that allowed

witnesses, by motion, to testify behind a screen during criminal trials.

The State made a motion for the use of the screen between the testifying

witnesses and the defendant, a motion which the defendant strenuously

objected to, arguing the screen violated his confrontation rights.

The

State argued that the use of the screen was necessary based on Iowa’s

statutory presumption that child victims will be traumatized testifying

before an alleged defendant.

The trial court allowed the use of the “large

screen” to be placed between the defendant and the two witnesses while

the two alleged victims testified.

The screen itself only allowed the

defendant to “dimly . . . perceive the witnesses, but the witnesses to see

him not at all.”

39 Coy, 487 U.S. at 1017–18.

40 Id. at 1016.

41 487 U.S. 1012 (1988).

42 Id. at 1022.

43 Id. at 1014–15.

44 Id. at 1021.

45 Id. at 1014.

46 Id. at 1015.

Morrison - BP (Do Not Delete)

1268 MERCER LAW REVIEW [Vol. 72

The Supreme Court in Coy held the use of a screen to block the

witnesses from view while on the witness stand was unconstitutional.

The Court in Coy supported its decision by holding the language of the

Confrontation Clause “[s]imply as a matter of Latin” and “‘[s]imply as a

matter of English,’ [] confers at least ‘a right to meet face to face all those

who appear and give evidence at trial.’”

Hence, based on the clear

language of the clause, the Supreme Court has never before doubted the

Confrontation Clause guarantees the right to a face-to-face meeting

between the witness and defendant.

In response to the State’s argument that the victims will

presumptively be traumatized having to face their accuser, the Court

recognized the truthful victim may, unfortunately, become upset while in

the face-to-face presence of the defendant.

However, despite the fact

that confronting the defendant to his face may upset the witness, the

defendant has a constitutional right to this confrontation.

Alas, “[i]t is

a truism that constitutional protections have costs.”

The constitutional

right of face-to-face confrontation has a profound purpose “[t]he State can

hardly gainsay . . . .”

Specifically, face-to-face confrontation may

establish the alleged trauma of the witness, or it may undo a false accuser

or reveal a coached child.

Therefore, the Court in Coy held the

defendant’s right to confrontation must prevail and allow for face-to-face

confrontation and omit testimony while hidden behind a screen.

The Court does, however, go further to hold that despite its decision,

the rights conferred in the Confrontation Clause are not absolute rights,

and exceptions have been created by the Supreme Court.

Looking to

precedent, all previous exceptions to confrontation, however, were

permitted in cases where the rights at issue were implied rights found in

the Confrontation Clause,

not those rights “narrowly and explicitly set

47 Id. at 1022.

48 Id. at 1016 (quoting California v. Green, 399 U.S. 149, 175 (1970)).

49 Id.

50 Id. at 1020.

51 Id.

52 Id.

53 Id.

54 Id.

55 Id. at 1022.

56 Id. at 1020.

57 Id. The Supreme Court held the implied rights in the Confrontation Clause that are

reasonably susceptible to sway by important interests are: 1) the right to cross-examine; 2)

the right to exclude statements made out-of-court; and 3) the right to face-to-face

confrontation during the proceedings but not at the actual trial. Id. These implied rights in

the Confrontation Clause must make take into consideration and give way to reasonably

Morrison - BP (Do Not Delete)

2021] IF THE MASK FITS 1269

forth in the Clause.”

Essentially, the Court has not previously created

or permitted exceptions to “the irreducible literal meaning of the Clause:

‘a right to meet face to face . . . .’”

The Coy Court declined to find any

exceptions to face-to-face confrontation in the case before the Court, but

allows for the possibility.

The Court held any possible exceptions to the

right to face-to-face confrontation “would surely be allowed only when

necessary to further an important public policy.”

Although no exception

to face-to-face confrontation was provided by the Court, the Coy Court

still provided guidance on what is sufficient to create an exception to this

right. Any exception would need to be “something more than [a] type of

generalized finding” and must be based on “individualized findings” to

create a “conceivable exception.”

An argument based on the

presumptive findings of a general statute is insufficiently individualized

to the case to create an exception.

2. Craig: Reliability and Public Policy

Just two years after the decision in Coy, the Court in Maryland v.

Craig,

held constitutional the testimony of a witness who did not testify

face-to-face with the defendant.

In Craig, the defendant was accused of

various crimes, including child abuse. The State motioned for a statutory

procedure that permits an alleged victim of child abuse to testify via one-

way video stream. To permit the procedure, the trial judge had to make

an individualized finding that the child will experience such emotional

distress that the child will be unable to reasonably communicate while

testifying in the courtroom. The defendant objected to the use of the

procedure based on her rights under the Confrontation Clause.

The

trial judge, however, found, although face-to-face confrontation is denied

under the statutory procedure, the “essence of the right of confrontation”

remains because the defendant and jury can still observe the witness,

and the defendant’s counsel can still cross-examine the witness.

important interests. Id. However, the Court had not previously held that the rights

expressly stated in the Confrontation Clause, like the right to meet face-to-face, can give

way to other important interests. Id. at 1021.

58 Id. at 1020.

59 Id. at 1021 (quoting California, 399 U.S. at 175).

60 Id.

61 Id.

62 Id.

63 Id.

64 497 U.S. 836 (1990).

65 Id. at 846.

66 Id. at 840–42.

67 Id.

Morrison - BP (Do Not Delete)

1270 MERCER LAW REVIEW [Vol. 72

Thereafter, the trial court found the evidence—including the testimony

of an expert witness—was sufficient to invoke the procedure and allowed

the child victim to testify over a one-way video circuit. Under the

procedure, the child was cross-examined in a separate room while a video

monitor displayed the testimony in the courtroom for the defendant, jury,

and judge to view. The defendant only saw the witness over television

streaming, and the witness never saw the defendant at all.

Because the trial court denied face-to-face confrontation based on

individualized findings consistent with Coy,

it “require[d] [the Supreme

Court] to decide the question reserved in Coy,” specifically, whether an

exception exists to face-to-face confrontation.

To answer this question,

the Craig Court held the “central concern of the Confrontation Clause is

to ensure the reliability of the evidence against a criminal defendant.”

Reliability under the Confrontation Clause is not just based on face-to-

face confrontation, but “[t]he combined effect of these elements of

confrontation—physical presence, oath, cross-examination, and

observation of the demeanor by the trier of fact—serves the purpose of

the Confrontation Clause . . . .”

Therefore, the right to face-to-face

confrontation is not the “sin qua non”

of the defendant’s right to

confrontation, and the confrontation rights of a defendant must be

interpreted in light of the necessities of the trial and other reliability

elements.

The right to face-to-face confrontation, according to the Craig

Court, is simply a “preference.”

After finding face-to-face confrontation is not required in every

instance of testimony against a defendant, the Craig Court turned to the

Coy Court’s requirement that, to create an exception to face-to-face

confrontation, there must be a necessary public policy interest to

further.

Only “occasionally” does the preference for face-to-face

68 Id. at 841–43.

69 Id. at 845. The Court in Coy held for an exception to exist to face-to-face confrontation,

a court must make an individualized finding of necessity for some important public policy

reason. Coy, 487 U.S at 1021.

70 Craig, 497 U.S. at 845.

71 Id.

72 Id. at 846.

73 Id. Black’s Law Dictionary defines sine qua non as “An indispensable condition or

thing; something on which something else necessarily depends.” Sine qua non Definition,

Black’s Law Dictionary (8th ed. 2004).

74 Craig, 497 U.S. at 850.

75 Id. at 849 (quoting Ohio v. Roberts, 448 U.S. 56, 63 (1980)).

76 Id. at 850.

Morrison - BP (Do Not Delete)

2021] IF THE MASK FITS 1271

confrontation give way to public policy.

The public policy exception

must be necessary in light of the case before the court.

Applying the reliability test and public policy inquiry to the case in

Craig, the Court held the testimony was still reliable because the witness

was placed under oath, cross-examined, and observed by the trier of

fact—although through a video stream.

Next, the State’s specific policy

interest in protecting the child witness from seeing her alleged accuser

after expert testimony found the witness would suffer “serious emotional

distress” outweighed the defendant’s right to face her accuser.

The

Court also reaffirmed that in every case where the defendant’s right to

face-to-face confrontation is hindered, the court must provide a case-

specific finding of necessity.

Therefore, to find an exception to face-to-

face confrontation under Craig, courts should focus on the reliability of

evidence and the public policy interest in preventing a face-to-face

meeting in each case.

3. Crawford: Rejecting Reliability Tests

Over a decade after the decision in Craig, the Supreme Court in

Crawford v. Washington,

again analyzed the right of a criminal

defendant under the Confrontation Clause, but this time in the context

of a hearsay exception.

Although not directly dealing with in-person

trial testimony, the Court in Crawford took the opportunity to make

broad holdings about the importance of a defendant’s right to

confrontation.

Most notably, the Court held the Sixth Amendment does

not provide for “open-ended exceptions from the confrontation

requirement to be developed by the courts[,]” including exceptions

created based on the reliability of testimony.

The Crawford Court specifically focused on a prior Supreme Court

decision, Ohio v. Roberts,

which did not align with the original meaning

of the Confrontation Clause as interpreted by the Founders and as

77 Id. at 849.

78 Id. at 850.

79 Id. at 851–52.

80 Id. at 842–55.

81 Id. at 857–58.

82 Id. at 850.

83 541 U.S. 36 (2004).

84 Crawford, 541 U.S. at 40.

85 Id. at 54.

86 Id.

87 448 U.S. 56 ( 1980).

Morrison - BP (Do Not Delete)

1272 MERCER LAW REVIEW [Vol. 72

established in century-old precedent.

In Roberts, the Supreme Court

held that the admission of out-of-court testimony required a judicial

determination of whether the testimony falls under a hearsay exception

or has an “indicia of reliability.”

The Roberts test, therefore, allowed

courts to admit or deny testimony based on reliability.

The Crawford

Court held, under the Sixth Amendment, this “[d]ispensing with

confrontation because testimony is obviously reliable is akin to

dispensing with jury trial because a defendant is obviously guilty. This

is not what the Sixth Amendment prescribes.”

Based on the Framers’

intentions when drafting the Sixth Amendment, the Crawford Court held

there is no reliability exception regarding the right of confrontation, and

only those exceptions that still meet the intent of the Framers are

permissible.

The Crawford Court took issue with and overturned the Roberts

reliability test for two crucial reasons.

First, the Roberts test allowed

judges to consider and weigh reliability elements, which could easily lead

to different results based on the judge overseeing the trial, causing

unpredictability.

Second, and most importantly, the Roberts test

allowed for the admission of testimony the Confrontation Clause should

88 Crawford, 541 U.S. at 60. See Mattox, 156 U.S. at 243; Motes v. United States, 176

U.S. 458 (1900).

89 Roberts, 448 U.S. at 66.

90 Crawford, 541 U.S. at 62.

91 Id.

92 Id. at 54–61. The intentions of the Framers can be traced to precedent set by the

Supreme Court as far back as 1895. Crawford, 541 U.S. at 54–58; see Mattox v. United

States, 156 U.S. 237 (1895). The Court in Mattox, premising its decision on the law existing

at the time of the Constitution, held a defendant must have the opportunity to cross-

examine a witness prior to trial to admit out-of-court testimony. Crawford, 541 U.S. at 57;

Mattox, 156 U.S. at 242. The right of confrontation is meant to preserve the right of face-

to-face testimony and to subject the witness “to the ordeal of cross-examination.” Mattox,

156 U.S. at 244. Just five years later in 1900, the Supreme Court also stood for the

proposition that out-of-court testimony which fails to prove the unavailability of a witness

should be excluded. Crawford, 541 U.S. at 57; Motes v. United States, 178 U.S. 458, 473–

74 (1900). In Motes, the prosecution submitted a statement by a witness that was available

for cross-examination by the defendants previously but did not present the witness at trial,

failing to prove unavailability. Motes, 178 U.S. at 470–71. Therefore, based on Mattox and

Motes, the intent of the Framers was to ensure the right to cross-examination and in-person

testimony except when the witness is unavailable.

93 The Court in Crawford did not clearly express its decision to overrule Roberts.

However, in a subsequent Supreme Court case, the Court confirmed its intention in

Crawford was to overturn Roberts when expressly holding “our opinion in

Crawford . . . overruled Roberts.” Whorton v. Bockting, 549 U.S. 406, 413 (2007).

94 Crawford, 541 U.S. at 63.

Morrison - BP (Do Not Delete)

2021] IF THE MASK FITS 1273

exclude simply because the testimony is “reliable.”

Therefore, the Court

in Crawford held weighing reliability factors at the discretion of judges

“reveals a fundamental failure on our part to interpret the Constitution

in a way that secures its intended constraint on judicial discretion.”

The

Court in Crawford ruled against judicial discretion under the

Confrontation Clause and dispensed with the Roberts reliability test.

However, the Crawford Court did not address the Craig reliability

test. Although Craig focused on in-person testimony, not hearsay as in

Crawford, the Crawford Court generally held against judges using their

discretion to create exceptions to a defendant’s very constitutional rights

under the Confrontation Clause. Therefore, trying to reconcile Craig and

Crawford poses serious questions about the level of discretion judges

have to create exceptions to the right to confrontation, both when

balancing reliability elements and when inquiring into public policy.

C. Circuit Court Cases & State Court Cases: Facial Coverings and

Disguises

Recent circuit court and state court cases have specifically dealt with

witnesses covering all or some of their faces while on the witness stand.

These cases shed light on how jurisdictions have interpreted Supreme

Court precedent on the Confrontation Clause. Most notably, the cases’

interpretations highlight the inconsistent results that circuit courts and

state courts have reached about what Supreme Court case and test to

apply in facial disguise cases.

1. The Second Circuit in Morales

The Court of Appeals for the Second Circuit in Morales v. Artuz,

analyzed the right to face-to-face confrontation in a case where the

witness testified while wearing dark sunglasses.

The witness was at

the trial to give eye-witness testimony after claiming to have seen the

defendant shoot the victim; the State’s case strongly rested on this eye-

witness testimony. The witness testified at the first trial wearing

sunglasses. The first trial, however, resulted in a hung jury, and, during

95 Id.

96 Id. at 67.

97 Id. 68–69. The Supreme Court has continued to support its holdings in Crawford in

post-Crawford cases which specifically reject the use of a reliability test to create

Confrontation Clause exceptions. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 317–

18, (2009).

98 281 F.3d 55 (2nd Cir. 2002).

99 Id. at 56.

Morrison - BP (Do Not Delete)

1274 MERCER LAW REVIEW [Vol. 72

the second trial, the witness wished to wear sunglasses again while

testifying.

100

At the second trial, the defense counsel objected to the witness wearing

sunglasses, and the trial judge sustained the objection.

101

The trial judge

found that the witness shielding her face with dark sunglasses prevented

anyone in the courtroom from seeing through them, which “d[id] not

provide the defendant with adequate opportunity to examine [the

witness] and it d[id] not provide the jurors with the opportunity to

evaluate [the witness’s] credibility.”

102

The witness nonetheless refused

to take the sunglasses off, even upon the judge’s order that she remove

them.

103

Eventually, the trial judge relented and allowed the witness to

wear the sunglasses based on the necessity of the witness’s testimony,

but recognized the dark sunglasses “‘partially’ [infringed] the defendant’s

right to confrontation.”

104

The Second Circuit, in reviewing the case, recognized the right to

confrontation is clearly established by the Supreme Court, but when the

witness is minimally disguised, Supreme Court precedent is less clear.

105

Both Craig and Coy provided a test for admissibility when the witness

was in some way physically separated from the defendant, but these

cases did not provide an appropriate test when dealing with a “slight

disguise . . . . Indeed, the Court has not considered any case involving a

disguise that obscures the normal opportunity to observe all aspects of a

witness’s demeanor.”

106

Even when turning to precedent for the virtues

of the Confrontation Clause,

107

there seems to be contradictory values the

Court has emphasized, preventing the Morales court from basing its

100 Id. at 56–57

101 Id. at 57.

102 Id.

103 Id.

104 Id.

105 Id. at 58.

106 Id. at 58–59. Morales was decided before the Crawford decision. However, because

Crawford did not directly deal with visual obstructions of the witness, the Crawford

decision unlikely would have drastically changed the decision in Morales. If anything,

Crawford would have led to more confusion as the Crawford Court introduced another

Confrontation Clause holding which varies from other Supreme Court precedent, an

inconsistency in precedent the Morales court already noted. Id.

107 Morales, 281 F.3d at 59. The Morales court cites various, seemingly conflicting

Supreme Court decisions regarding the central value of face-to-face confrontation. (see

Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987); Delaware v. Van Arsdall, 475 U.S. 673, 678

(1986)).

Morrison - BP (Do Not Delete)

2021] IF THE MASK FITS 1275

decision on the importance—or insignificance—of the visibility of the

witness’s eyes during testimony.

108

Turning to the facts, the Morales court held, to the extent the Supreme

Court has established the right of the defendant to see the witness, “some

impairment occurred.”

109

However, besides the inability to see the

witness’s eyes, the witness’s full body was in view of the defendant and

the trier of fact, allowing them to observe the witness’s body language

and to assess the delivery and credibility of her testimony.

110

The court

in Morales determined all other bases for evaluating the witness’s

testimony were still in place; “[a]ll that was lacking was the jury’s ability

to discern whatever might have been indicated by the movement of her

eyes.”

111

Based on this finding, the Morales court determined that

allowing the witness to wear sunglasses was permissible.

112

Notably, the

court did not make any conclusive holdings on the defendant’s right to

confrontation when the witness is disguised, only doubting that the

sunglass disguise violated the constitutional protections of the defendant

under the Confrontation Clause, deferring to the lower court’s

application of the law.

113

2. The Ninth Circuit in Jesus-Casteneda

The Court of Appeals for the Ninth Circuit in United States v. De

Jesus-Casteneda,

114

addressed the constitutionality of a witness wearing

a disguise under the Sixth Amendment.

115

The State asked that the

witness be permitted to wear a fake mustache and wig during testimony

because the witness was a confidential informant. The witness claimed

108 Morales, 281 F.3d at 59. Depending on what the value of face-to-face confrontation

is:

[t]o the extent that the Supreme Court’s ‘established law’ of confrontation seeks

to assure cross-examination and an opportunity for the witness to the see the

defendant, [the witness’s] sunglasses created no impairment. On the other hand,

to the extent that the right assures an opportunity for the defendant and

especially the jurors to see the witness’s eyes in order to consider her demeanor

as an aid to assessing her credibility, some impairment occurred. Id. at 60.

109 Id.

110 Id. at 61–62.

111 Id. at 62. “[The jurors] had a full opportunity to combine these fully observable

aspects of demeanor with their consideration of the substance of her testimony, assessing

her opportunity to observe, the consistency of her account, any hostile motive, and all the

other traditional bases for evaluating testimony.” Id.

112 Id.

113 Id. The Morales court deferred to the finding of the state court to permit the

testimony and held the, “the state court did not make an unreasonable application of such

law[]” when permitting testimony of the sunglass-wearing witness. Id.

114 705 F.3d 1117 (9th Cir. 2013).

115 Id. at 1119.

Morrison - BP (Do Not Delete)

1276 MERCER LAW REVIEW [Vol. 72

the purpose of the disguise was to protect his identity due to the

particular dangers of his involvement in the Sinaloa Cartel’s drug

trafficking ring. Defense counsel objected because the witness’s disguise

concealed his facial expressions, hindering the defendant and jury’s

ability to analyze the witness’s demeanor and credibility. The trial court

nonetheless found the witness could testify in disguise.

116

Based on the

risks to the witness, the trial judge decided “the disguise was a ‘very

small impingement . . . on the ability . . . to judge . . . credibility.’”

117

The

defendant appealed, contending the disguise violated his rights under the

Confrontation Clause.

118

As in Morales, the court in Jesus-Casteneda held there is no “Supreme

Court authority addressing whether a witness’s testimony in disguise

violates the Confrontation Clause.”

119

Instead, the Jesus-Casteneda court

turned to analogous cases in other jurisdictions for guidance.

120

Focusing

on a similar case in Texas which addressed facial disguises under the

Confrontation Clause,

121

the Jesus-Casteneda court utilized the Craig

test to determine whether the witness’s facial disguise violated the

defendant’s confrontation rights.

122

Namely, the court considered the

reliability elements

123

and considered whether there was an important

state interest when determining the constitutionality of the disguise

under the Confrontation Clause.

124

The Jesus-Casteneda court held the disguise was constitutional under

the Craig test because of the important state interest in protecting the

witness’s identity and safety.

125

Specifically, the witness was at

particular risk against retaliation and exposure from the Sinaloa

Cartel.

126

Furthermore, the court went on to determine all other elements

of reliability were met with the witness testifying under oath, with the

ability to cross-examine the witness by the defendant within the

116 Id.

117 Id.

118 Id.

119 Id.

120 Id.

121 Id. at 1120. Specifically, the court analyzed Romero v. State, 173 S.W.3d 502

(Tex.Crim.App.2005), which is addressed later in this Comment. Id.

122 Jesus-Casteneda, 705 F.3d at 1120.

123 Id. The court, in determining reliability, used the Craig test to consider the following

elements 1) physical presence of the witness; 2) the witness under oath; 3) the prior

opportunity to cross-examine the witness; 4) the right to observe the demeanor of the

witness by the jury. Id.

124 Id.

125 Id.

126 Id.

Morrison - BP (Do Not Delete)

2021] IF THE MASK FITS 1277

defendant’s view, with the jury’s ability to see the demeanor of the

witness, and with the witness’s physical presence in the courtroom.

127

Based on the application of the Craig test, the court ruled the disguise

did not violate the defendant’s constitutional right to confrontation.

128

3. The Texas Court of Appeals in Romero

In Romero v. State,

129

a Court of Appeals of Texas decision, the court

held unconstitutional the testimony of a witness who wore a disguise of

sunglasses, a baseball cap, and a jacket with an upturned collar while

testifying.

130

The witness in the case refused even to enter the courtroom

without the disguise, explaining he feared the defendant would seek

revenge. The defendant’s counsel immediately objected to the disguise as

violating the defendant’s constitutional right to face his accuser. The trial

judge allowed the witness to testify in the disguise, and the defendant

appealed based on violations of his confrontation right.

131

In determining the appropriate test to apply to a facial disguise

case,

132

the Romero court reviewed both Coy and Craig.

133

In Craig, the

defendant and jury could all see the witness and analyze the defendant’s

demeanor, albeit over a television screen.

134

In Romero, however,

“neither the defendant nor the trier of fact was fully able to ‘look at [the

witness], and judge by his demeanor upon the stand and the manner in

which he [gave] his testimony whether he [was] worthy of belief.’”

135

This

right to see the witness has many “subtle effects” on a criminal

proceeding.

136

In addition, the Romero court held the use of a disguise is similar to

the use of a screen between the witnesses and the defendant in Coy.

137

The Romero court, however, went further to hold the use of the disguise

127 Id. at 1121.

128 Id.

129 136 S.W.3d 680 (2004).

130 Id. at 690–91.

131 Id. at 682.

132 Id. The decision in Romero was decided just one month after the Crawford decision.

Id. at 681; Crawford, 541 U.S. at 36. The Crawford decision was decided March 8, 2004,

while the Romero decision was decided April 27, 2004. Id.; Crawford, 541 U.S. at 36.

Whether the Romero court knew of or considered Crawford is unknown based on the

appellate court decision.

133 Romero, 136 S.W.3d at 682–84.

134 Id. at 684 (citing Craig, 497 U.S. at 851).

135 Id. at 685 (quoting Mattox, 156 U.S. at 243).

136 Id. (quoting Craig, 497 U.S. at 851).

137 Id. at 682–83 (citing Coy, 487 U.S. at 1014).

Morrison - BP (Do Not Delete)

1278 MERCER LAW REVIEW [Vol. 72

was worse than the use of the screen in Coy.

138

The intent in Coy was to

hide the defendant from the witness; in contrast, the intent in the case

before the court in Romero was to hide the witness from the defendant.

139

This crucial dissimilarity did not allow the defendant to view the face of

the witness and violated the defendant’s confrontation rights.

140

The Romero court noted that in Craig, a policy interest may prevail

over face-to-face confrontation on an individual basis.

141

Romero,

however, held even if a discussion of policy at the trial level in the Romero

case had occurred, “we doubt that, under the circumstances, allowing an

adult witness to substantially conceal his or her face while testifying in

a criminal trial would pass constitutional muster.”

142

History and

precedent provide that the Confrontation Clause ensures the “literal

right” to meet face-to-face and is a core value of the Confrontation

Clause.

143

The court went even further to hold that the Second Circuit in

Morales, “downplayed” this right when allowing the witness to wear

sunglasses while testifying.

144

Although the witness may have had

justifiable reasons for covering his face in Romero, “constitutional

protections have costs.”

145

Therefore, the disguise violated the

defendant’s constitutional right to confrontation.

146

4. The Court of Appeals of Michigan in Sammons

The Court of Appeals of Michigan in People v. Sammons,

147

held

unconstitutional the wearing of a full face mask while testifying under

the Confrontation Clause.

148

The State’s chief witness, an informant

involved in the sale of cocaine with the defendant, wore a mask that

covered his full face and head while testifying.

149

Not only did the witness

wear the mask during the entrapment hearing,

150

but the witness also

138 Id. at 683.

139 Id. (citing Coy, 487 U.S. at 1020).

140 Id. at 690–91.

141 Id. at 684. (citing Craig, 497 U.S. at 855).

142 Id. at 687–88.

143 Id. at 688 (quoting Green, 399 U.S. at 157).

144 Id. (citing Morales, 291 F.3d at 62).

145 Id. at 689 (quoting Coy, 487 U.S. at 1020).

146 Id. at 691.

147 478 N.W.2d 901 (Mich. Ct. App. 1991).

148 Id. at 909.

149 Id. at 904.

150 Id. Although an entrapment hearing is not a criminal trial, the court in Sammons

held, because an entrapment hearing is an adversarial process, and because there is a

factual finding by the trier of fact, the defendant’s protections under the Confrontation

Clause apply to the entrapment hearing. Id. at 907.

Morrison - BP (Do Not Delete)

2021] IF THE MASK FITS 1279

refused to reveal his identity.

151

The trial judge allowed the witness to

wear the disguise and also instructed the defense not to ask any

“identifying questions” of the witness.

152

The purpose of allowing such

protections of the witness was based on allegations that a codefendant

offered cocaine to a third-party to have the witness killed. The defendant

appealed on the grounds that he was unable to confront the accuser from

behind a mask, and the mask prevented the trier of fact from assessing

the witness’s credibility.

153

Considering both Craig and Coy,

154

the court in Sammons applied the

Craig test, focusing on the State’s interest in disguising and refusing to

identify the witness, as well as the reliability of the witness’s

testimony.

155

First, the court in Sammons held the State did have an

interest in the safety of the witness during a criminal proceeding;

however, protective measures for the witness must be tailored to best

“preserve the essence of effective confrontation . . . .”

156

In Sammons, the

use of a mask “foreclosed the opportunity for the trier of fact to

adequately assess the witness’ credibility through observation of

demeanor[,]” resulting in an ultimate failure to preserve this “essence” of

confrontation.

157

The ability to see the witness’s face was deemed crucial in observing

demeanor as “[t]he facial expressions of a witness may convey much more

to the trier of facts than do . . . spoken words.”

158

In addition, “a full-face

mask tends to diminish the aspect of personalization associated with

testifying about a defendant ‘to his face.’”

159

The court in Sammons,

therefore, held the mask “denied [the] defendant a critical aspect of his

confrontation rights[]” because the defendant could not see his accuser’s

face and the trier of fact was precluded from assessing the witness’s

demeanor while testifying.

160

151 Id. at 904.

152 Id. at 905.

153 Id. at 905–06.

154 Id. at 908.

155 Id.

156 Id.

157 Id. at 909–10.

158 Id. at 909 (citing United States v. Walker, 772 F.2d 1172, 1179 (5th Cir. 1985).

159 Id. at 908.

160 Id. at 909. The Sammons court also held refusing to disclose the identity of the

witness violated the Confrontation Clause. Id. By not identifying the witness, the defense

was precluded from cross-examining the witness based on any background information,

hindering the defense’s ability to test the credibility of the witness. Id.

Morrison - BP (Do Not Delete)

1280 MERCER LAW REVIEW [Vol. 72

III.

DISCUSSION: THE INTRODUCTION OF MANDATORY MASKS TO CRIMINAL

PROCEEDINGS IN A GEORGIA COURTROOM

Individual courts and judges have begun recognizing and addressing

potential Confrontation Clause violations resulting from changing court

procedures in response to the coronavirus. Of particular concern has been

the defendant’s confrontation rights when witnesses wear masks while

testifying during criminal trials. Although the novel coronavirus is only

months old, the United States District Court for the Middle District of

Georgia has already responded to concerns that witnesses testifying

while wearing masks is unconstitutional.

In the United States District Court for the Middle District of Georgia

in United States v. Crittenden,

161

Judge Land, at least preliminarily, held

constitutional the requirement that witnesses wear face masks during

criminal testimony in the coronavirus era.

162

The court in Crittenden

considered the constitutionality of face masks in response to the

Government’s objection to the requirement that all witnesses wear face

masks during Aubrey Crittenden’s criminal trial.

163

The Government

raised concerns “that by requiring witnesses to wear a mask that covers

their nose and mouth during testimony, the Court may infringe upon the

Defendant’s right to face-to-face confrontation of the witnesses against

him as guaranteed by the Confrontation Clause . . . .”

164

Before responding to the constitutional question brought by the

Government, the Crittenden court first addressed the evolution of the

pandemic and the serious risks of spreading and contracting the

coronavirus.

165

The court in Crittenden explained the coronavirus is

believed to be spread through the respiratory tract—specifically through

bodily fluids from coughing or sneezing.

166

The virus is also believed to

stay on surfaces which, with subsequent contact with the respiratory

tract— such as a person touching a surface and then his face or nose—

161 United States v. Crittenden, No. 420-CR-7 (CDL), 2020 U.S. Dist. LEXIS 151950

(M.D. Ga. Aug. 21, 2020).

162 Id. at *26.

163 Id. at *1–*2.

164 Id. at *13. A Government motion arguing on behalf of the constitutional protections

of the defendant is unusual. Although the Order and motion by the Government does not

provide why the Government made the motion, it is most likely due to the fact the

Government is concerned about potential reversals of judgments if masks at criminal trials

are later deemed unconstitutional under the Confrontation Clause.

165 Id. at *2–*4.

166 Id. at *2.

Morrison - BP (Do Not Delete)

2021] IF THE MASK FITS 1281

could spread the virus.

167

If a person contracts the coronavirus, the

individual may present with “respiratory distress, and it may cause

death,” especially amongst those with underlying health conditions.

168

The spread of the virus creates a unique concern for the court: the

health of all trial participants. Governments and businesses have been

forced to adapt and adjust to prevent person-to-person contact, which is

believed to be the reason the virus has spread so rapidly on a global

level.

169

The Crittenden court stated, to prevent the spread of the

coronavirus, “[i]ncreased vigilance” by the court is essential.

170

The Crittenden court cited the “increased vigilance” of the United

States District Court for the Middle District of Georgia courthouse, the

location for the Crittenden trial.

171

The Middle District adopted a

Standing Order,

172

which temporarily modifies courthouse procedures to

adapt to the global pandemic.

173

The Standing Order allows the

courthouse to remain open while excluding those who are or were exposed

to the virus.

174

The Standing Order then goes further to extend all jury

trials; the extension remains in effect as of the writing of this Comment

in January 2021.

175

A later order out of the Middle District of Georgia

adopted the President of the United States’ Coronavirus Aid, Relief, and

Economic Security Act (CARES Act),

176

giving each individual judge the

discretion to create courtroom protocols to adapt to the needs of the

courtroom and community.

177

Judge Land, presiding over the case of

Aubrey Crittenden, created and enacted numerous restrictions for his

courtroom, including that “[n]o one will be admitted to the courtroom

167 Id.

168 Id.

169 Id. at *3.

170 Id.

171 Id.

172 Clay D. Land, Standing Order, I

N THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF GEORGIA, https://www.gamd.uscourts.gov/sites/gamd/files/general-

ordes/Standing%20Order%202020-01%20re%20COVID-

19%20Operations%20%28003%29.pdf (last visited Jan. 10, 2021).

173 Id.; Crittenden, 2020 U.S. Dist. LEXIS 151950, at *4.

174 Id.

175 Crittenden, 2020 U.S. Dist. LEXIS 151950, at *5; Marc T. Treadwell, Standing

Order Extending Jury Moratorium Because of National Emergency, I

N THE UNITED STATES

DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA,

https://www.gamd.uscourts.gov/sites/gamd/files/Standing_Order-2020-

13_Jury_Moratorium.pdf (last visited Jan. 10, 2020).

176 H.R. 748 (March 27, 2020).

177 Crittenden, 2020 U.S. Dist. LEXIS 151950, at *9.

Morrison - BP (Do Not Delete)

1282 MERCER LAW REVIEW [Vol. 72

without wearing a mask, and the mask shall remain in place, including

when speaking.”

178

After detailing the new courtroom and courthouse safety procedures,

the court in Crittenden began discussing the specific requirement of

masks in Judge Land’s courtroom.

179

To decide whether witnesses

wearing face masks during criminal trials violates the defendant’s

constitutional right to confrontation, the court first looked to Supreme

Court precedent.

180

The court found that precedent affords the defendant

the right to look at the witness face-to-face, but although this right to

face-to-face confrontation is guaranteed, it is not absolute.

181

The

Crittenden court then applied the Craig test

182

to determine the

constitutionality of masks in criminal trials.

183

The court in Crittenden

reiterated that, under the Craig test, physical, face-to-face confrontation

can be denied: 1) in the furtherance of a necessary public policy; and 2)

where the testimony is otherwise reliable.

184

First, the court in Crittenden emphasized requiring witnesses to wear

masks is a necessary public policy interest.

185

The requirement of masks

“ensur[es] the safety of everyone in the courtroom in the midst of a unique

global pandemic. Without this procedure, everyone in the courtroom

would face the risk of being infected with a lethal virus.”

186

The face

masks are “necessary” because the Center for Disease Control and

Prevention (CDC) determined that wearing a mask over the nose and

mouth is “strongly recommend[ed]” to avoid infecting others with the

coronavirus.

187

Furthermore, the CDC specifically found masks are more

effective than the face shields and plexiglass screens the Government

suggests be used instead of face masks.

188

To follow the “best available

178 Id. at *10. In addition, “[i]f a Defendant in a criminal proceeding, other than a trial,

refuses to wear a mask, Judge Land will consider having the Defendant taken to the holding

cell outside the courtroom and participate in the proceeding via video.” Id. at *10–*11.

179 Id. at *10.

180 Id. at *13–*22.

181 Id. at *14 (citing Coy, 478 U.S. at 1020).

182 Crittenden, 2020 U.S. Dist. LEXIS 151950, at *16–*17. The court in Crittenden cited

to United States v. Yates in which the court applied the Craig test in determining violations

of confrontation rights. Id. at *15; 438 F.3d 1307 (11th Cir. 2006).

183 Crittenden, 2020 U.S. Dist. LEXIS 151950, at *17–*18.

184 Id. at *16–*17 (quoting Craig, 497 U.S. at 850).

185 Id. at *15.

186 Id.

187 Id. (citing Considerations for Wearing Masks,

CENTERS FOR DISEASE CONTROL AND

PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-

cover-guidance.html (last visited Jan. 10, 2021)).

188 Crittenden, 2020 U.S. Dist. LEXIS 151950, at *16 (citing Considerations for Wearing

Masks,

CENTERS FOR DISEASE CONTROL AND PREVENTION,

Morrison - BP (Do Not Delete)

2021] IF THE MASK FITS 1283

science in this area” and to ensure the health and safety of all those

attending or participating in the trial, the court in Crittenden determined

the use of face masks is a necessary public policy interest under the Craig

test.

189

Next, under the Craig test, the Crittenden court considered the

reliability of testimony when the witnesses wear face masks.

190

The court

in Crittenden focused on the elements of reliability under the Craig test:

having the physical presence of the witness, placing the witness under

oath, cross-examining the witness, and allowing the trier of fact to

observe the demeanor of the witness.

191

As held in Craig, even if one of

the elements of reliability is interfered with, the other elements, if met,

can preserve the reliability of the testimony.

192

Applying the reliability

elements to the case in Crittenden, the court determined the defendant

will still be able to place all witnesses under oath and cross-examine the

witnesses.

193

The witnesses will still be physically present in the

courtroom.

194

Although the witnesses will be wearing masks, the

defendant and jurors will still be able to observe the demeanor of the

witnesses, with the exception of observing the witnesses’ noses and

mouths.

195

The court in Crittenden, however, held the inability to see the

witnesses’ noses and mouths is not essential for reliability because “this

restriction does not diminish the face-to-face nature of the confrontation

contemplated by the Confrontation Clause.

196

To explain its finding that face masks do not interfere with the nature

of face-to-face confrontation, the Crittenden court took the opportunity to

distinguish the facts presented before the court in Crittenden to the facts

in Coy in which impeding the defendant’s view of the witness via the

placement of a large screen did violate the Confrontation Clause.

197

Coy, a screen was placed between the defendant and the witness, almost

completely obscuring any view of the witness.

198

When wearing a face

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover-

guidance.html (last visited Jan. 10, 2021)). The Government specifically asked that masks

be removed by witnesses during testimony, or transparent masks or plexiglass screens be

utilized instead of face masks. Id. at *14–*15.

189 Id. at *16.

190 Id. at *17–*18.

191 Id. at *16 (citing Craig, 497 U.S. at 846).

192 Id. at *17 (citing Craig, 497 U.S. at 851).

193 Id. at *18.

194 Id.

195 Id.

196 Id.

197 Id. at *18–*19 (citing Coy, 478 U.S. at 1014).

198 Id. (citing Coy, 478 U.S. at 1014).

Morrison - BP (Do Not Delete)

1284 MERCER LAW REVIEW [Vol. 72

mask; however, the Crittenden court found there is only a “tiny piece of

cloth covering” the nose and mouth of the witness; “the masks will in no

way prohibit the Defendant and witnesses from directly looking upon

each other in person . . . .”

199

Inevitably, the jury will not be able to

observe movement of the nose and mouth; however, the Crittenden court

concluded the right to confrontation does not include the ability of the

jury to see “every language of the body.”

200

Although not all facial

expressions will be observable, there are other aspects of body language

which allow for analysis of the witness’s demeanor.

201

Rather:

Demeanor includes the language of the entire body. Here, the jurors

will be able to observe most facets of the witnesses’ demeanor. They

can observe the witnesses from head to toe. They will be able to see

how the witnesses move when they answer a question; how the

witnesses hesitate; how fast the witnesses speak. They will be able to

see the witnesses blink or roll of their eyes, make furtive glances, and

tilt their heads. The Confrontation Clause does not guarantee the right

to see the witness’s lips move or nose sniff . . . .

202

The Crittenden court thereafter found requiring witnesses to wear

face masks while testifying will be both reliable and necessary under

public policy considerations.

203

The mask will not diminish face-to-face

confrontation “in a material way.”

204

Therefore, the court concluded the

witnesses testifying while wearing masks does not infringe on Aubrey

Crittenden’s constitutional rights under the Confrontation Clause.

205

IV.

ANALYSIS

The United States was undoubtedly unprepared for the novel

coronavirus, which wreaked havoc on every aspect of life in less than two

months. In response to this wildly spreading virus, concern for health

understandably and predictably led to federal and state requirements,

such as limiting the size of gatherings, wearing masks in public places,

diligent handwashing, and closing businesses and government agencies.

It was impossible to predict, however, that the coronavirus’s impact on

the country would lead to serious constitutional questions.

199 Id. at *19.

200 Id.

201 Id. at *20.

202 Id.

203 Id. at *22.

204 Id.

205 Id.

Morrison - BP (Do Not Delete)

2021] IF THE MASK FITS 1285

As the pandemic rages on, the country is beginning to reopen and

adapt to the new-normal. Courts across the nation, in resuming criminal

trials, are now faced with needing to both protect the health of its

occupants as well as ensure any health measures do not offend

defendants’ constitutional rights. Although tempting to do in an

unprecedented global pandemic, courts cannot forget that the

Constitution is the very foundation of the United States, and even the

health interests of its occupants cannot outweigh constitutional

protections. This Analysis will show the court in Crittenden

unconstitutionally permitted the requirement that witnesses testify

while wearing face masks. Hiding the face of a testifying witness violates

the Confrontation Clause, even in light of a global pandemic.

A. Supreme Court Precedent

Although a witness testifying behind a mask during a global

pandemic has never been directly addressed by the Supreme Court, or

even been at issue before the current year, precedent still leads to the

answer that witnesses wearing masks while testifying during criminal

trials violates the Confrontation Clause. The Supreme Court has

consistently held a defendant has a constitutional right to confront the

witnesses against him. Confusion, however, arises from the seemingly

irreconcilable Supreme Court precedent on whether and when to

dispense with or limit physical, face-to-face confrontation under the

Confrontation Clause.

1. Whether Craig’s Reliability Test Can Still Create

Confrontation Clause Exceptions

Looking to the evolution of Supreme Court precedent regarding

exceptions to the right to face-to-face confrontation, first, the Coy Court

refused to create any exceptions to face-to-face confrontation.

206

The

Court in Coy held, if an exception were to even exist, the exception must

be based on the individual findings of that case and for some necessary

public policy reason.

207

The Craig Court later established a test for

creating exceptions to face-to-face confrontation upon finding the

testimony is still reliable and upon finding there is a necessary public

policy interest that outweighs face-to-face confrontation.

208

Although Coy

and Craig can be reconciled, the Crawford Court recently held against

judges creating discretionary exceptions to the right to face-to-face

206 Coy, 487 U.S. at 1021.

207 Id.

208 Craig, 497 U.S. at 850.

Morrison - BP (Do Not Delete)

1286 MERCER LAW REVIEW [Vol. 72

confrontation based on reliability.

209

The Crawford Court held that, for

an exception to exist, courts must turn to the Framers' intentions, not to

a judge’s opinion or discretion.

210

Because the Crawford Court broadly

denounced discretionary decisions by judges on the right to

confrontation, particularly in the context of balancing reliability

elements, how could Craig’s reliability test possibly survive? The answer,

although not explicitly expressed by the Supreme Court, is that the Craig

test cannot survive post-Crawford.

Despite the Crawford decision, some courts continue to use the Craig

reliability test to determine whether and when to dispense with face-to-

face confrontation.

211

In fact, in Crittenden, the court relied on Craig and

only mentioned Crawford in passing as an example of confrontation

rights in the context of hearsay exceptions.

212

The confusion and lack of

discussion of Crawford in addressing face-to-face confrontation questions

are likely due to the fact that the question in Crawford focused on

admission of out-of-court statements, while the Craig Court addressed

the issue of confronting a witness during courtroom testimony in an

untraditional way. However, there is no avoiding the Court in Crawford

made sweeping holdings about the defendant’s right to confrontation.

The Crawford Court expressly held against discretionary decisions by

judges under the Confrontation Clause and in no way limited its holding

to hearsay testimony. Therefore, in considering potential violations to

face-to-face confrontation, courts must turn to the Crawford Court’s

restrictive view to determine whether an exception exists under the

Confrontation Clause.

Because the Craig test is inappropriate in finding Confrontation

Clause exceptions, the court in Crittenden was incorrect in utilizing the

Craig reliability test to determine whether the requirement that

witnesses wear face masks while testifying is constitutional. The

Crawford Court held the right to confrontation is not about reliability,

and the Sixth Amendment does not provide for open-ended exceptions

created by judges.

213

By allowing face masks that directly impair the

ability to see the witness while testifying based on reliability, the court

in Crittenden created the kind of exception the Crawford Court directly

held against.

209 Crawford, 541 U.S. at 54.

210 Id.

211 See Jesus-Casteneda, 705 F.3d at 1120.

212 Crittenden, 2020 U.S. Dist. LEXIS 151950, at *21.

213 Crawford, 541 U.S. at 54, 62.

Morrison - BP (Do Not Delete)

2021] IF THE MASK FITS 1287

2. Whether Judges Can Consider Public Policy

The holding in Crawford also raises questions about whether judges

can limit a defendant’s confrontation rights based on public policy post-

Crawford. The Crawford Court clearly opposed judges making

discretionary decisions about a defendant’s confrontation rights but did

so in the context of balancing reliability elements.

214

The Court in

Crawford did not consider whether judges can use public policy to limit

face-to-face confrontation. However, the Crawford Court’s holding

against judge-created exceptions to confrontation rights would suggest

that Crawford also prohibits discretionary exceptions based on public

policy. Nonetheless, this conclusion is not clear as the Crawford Court

did not discuss public policy in its analysis or its holding.

If public policy considerations are permissible in limiting defendants’

face-to-face confrontation rights, what is clear is that, for a court to

restrict face-to-face confrontation based on public policy necessity, the

court would have to do so on a case-by-case basis. The Coy Court rejected

a generalized public policy argument based on presumed trauma.

215

The

Court in Craig did hold in favor of a public policy argument but only upon

very specific findings in the case before the Court.

216

This precedent

makes clear for a court to limit the right to confrontation, the public

policy consideration must be individually considered and decided based

on the case before the court, not based on general presumptions or

general concerns.

Therefore, findings based upon a general public policy concern, such

as public health, is not sufficient to create an exception. The court in

Crittenden improperly analyzed public policy considerations by

generalizing concerns to every witness in the Aubrey Crittenden case.

The Crittenden court should have made a case-by-case decision about

whether the potential risk to each witness outweighs the defendant’s

right to see the witness’s face. During a global pandemic, this public

policy interest may often outweigh the defendant’s right; however,

precedent requires that this decision be made on an individual basis. In

the case of a global pandemic, an individualized decision may require an

inquiry into each witness’s risk for contracting the coronavirus and an

inquiry into each witness’s overall health.

214 Id. at 63.

215 Coy, 487 U.S. at 1021.

216 Craig, 497 U.S. at 857–58.

Morrison - BP (Do Not Delete)

1288 MERCER LAW REVIEW [Vol. 72

B. Why a Clear Rule Matters

Supreme Court precedent regarding a defendant’s rights to face-to-

face confrontation has been applied in various jurisdictions, both at the

state and federal levels. Looking specifically to cases where witnesses

partially or wholly hid their faces, a wide range of holdings resulted from

these cases. The Morales court found no Supreme Court test was

appropriate for determining if the disguise violated face-to-face

confrontation,

217

while the other facial disguise courts focused on the

Craig test.

218

The courts in Morales and Jesus-Casteneda found no

violation of the Confrontation Clause, while the courts in Romero and

Sammons did find a constitutional violation.

219

With the application of

the Craig test in the majority of these cases, such variations are not

surprising based on the wide discretion of the judges in these cases.

Applying Craig, there is endless possibility for a court in its discretion to

find numerous possible exceptions to face-to-face confrontation. With no

set rule for what exceptions violate the Confrontation Clause, there is no

predictable outcome for the defendant on his very constitutional rights.

Although there is no Supreme Court precedent that directly addresses

witness face coverings, the applicable test should not be Craig. The test

should be specific, predictable, and strict, so a defendant’s confrontation

right is not dispensed with based on the discretion of one individual. The

right to confront witnesses would not be expressly included in the

Constitution if the right was easily susceptible to the sway of judges.

Therefore, courts for clarity and uniformity should follow the strict

guidelines set by the Crawford Court to ensure a defendant’s

constitutional right to confrontation is not negligently or recklessly

violated.

C. The Importance of a Witness’s Entire Face and The Risk if The Full

Face is Not Exposed

As has been reiterated throughout this Comment, there is a profound

effect when the witness and defendant meet face-to-face in the

courtroom. This meeting is so profound that the very language of the

Confrontation Clause guarantees the defendant the right to a face-to-face

meeting with his accuser.

220

This right is a literal, express, and explicit

right. How can this right be fulfilled if the witness’s face is half-hidden?

217 Morales, 281 F.3d 58–59.

218 See Jesus-Casteneda, 705 F.3d at 1120; Romero, 136 S.W.3d at 685; Sammons, 478

N.W.2d at 908.

219 Id.

220 Coy, 487 U.S. at 1016.

Morrison - BP (Do Not Delete)

2021] IF THE MASK FITS 1289

The answer is clearly that partially or wholly hiding the witness’s face

simply cannot constitute face-to-face confrontation.

221

Face-to-face

confrontation by its very language promises the defendant will see the

witness’s full face.

A witness against the defendant, if worthy of belief, can result in the

defendant potentially losing his life or liberty. Such a high power requires

the witness’s face to be fully exposed. A facial covering simply does not

allow the defendant and trier of fact to truly face the person accusing the

defendant. The accuser is instead hidden. The Crittenden court

downplayed the use of face masks by holding the ability to observe the

nose and mouth of a witness is not crucial to observe a witness’s

demeanor. Yet, how can the witness’s demeanor be observed with a mask

hiding half of all facial expressions? The scrunch of the nose or the twist

of the mouth can enlighten the trier of fact and the defendant to the

authenticity of the testimony. The defendant’s lawyer can react to a

frown to continue with that line of cross-examination. With a mask, the

witness has a way to hide those natural, reactionary facial expressions.

To state the full facial expressions of the witness are not essential for

face-to-face confrontation is both contradictory and unconstitutional.

If masks are permitted in the courtroom, defendants will inevitably

have a more difficult time examining witnesses. If an accuser is

dishonest, it will be easier for the witness to hide behind the mask.

Although the argument can be made a witness can choose to lie with or

without a mask, the Confrontation Clause is necessary because, even

though it does not promise honest testimony, it does protect the

defendant by providing him—and the trier of fact—the opportunity to

assess the honesty of the witness. If all witnesses wear masks while

testifying, the ultimate and terrifying result may be that it will become

easier to convict a defendant purely based on an accuser’s ability to

testify behind the shadow of a mask. The humanity of a person is taken

away when his face is hidden. Without full view of these facial

expressions, it will become easier to just believe the words spoken and

not register and observe that the witness is a person who may be lying.

Even during the age of technology, criminal trials have remained in-

person, demonstrating the impact of physical, face-to-face confrontation.

There is a profound effect of requiring the defendant, witnesses,

prosecution, and trier of fact to come into one space, look upon each other,

and play a part in the liberty of the defendant. If everyone can hide

221 In Romero, the witness wearing sunglasses, a baseball hat, and a jacket prohibited

the defendant and finder of fact from judging the demeanor of the witness. 136 S.W.3d at

682. In Sammons, the use of a full-face mask prevented an aspect of personalization that

traditional face-to-face confrontation allows. 478 N.W.2d at 908.

Morrison - BP (Do Not Delete)

1290 MERCER LAW REVIEW [Vol. 72

behind their mask, it may just become easier to take a defendant’s liberty

away.

D. An Appropriate Remedy

To find unconstitutional witnesses wearing face masks while

testifying does not eliminate all remedies and procedures a court can

implement to protect those in the courtroom from contracting the

coronavirus. The Crittenden court held face masks are the best protection

against the coronavirus based on the current findings of the CDC.

222

Naturally, the safest method is often the best method. However, court

adaptations cannot only focus on accommodating the health of everyone

in the courtroom but must also protect the constitutional rights of the

defendant.

Notably, on October 7, 2020, the vice-presidential candidates for the

2020 presidential election held a live debate without masks. The

candidates were placed twelve feet apart and sat behind five-foot

plexiglass screens.

223

Although never held-out to be as safe as face masks,

to see that the use of plexiglass and twelve-foot distance is sufficient to

have leaders of our country debate on the same stage without masks

raises questions as to why it is not sufficient in the courtroom.

The courtroom could even provide protections beyond those at the

debate. The witness could remove the mask while testifying but sit

behind a plexiglass screen while the remainder of the courtroom wear

masks. Determinations could be made before trial as to the risk to a

witness, and the court could provide extra protections to the witness,

such as providing the witness with a clear, transparent mask.

224

As tests

become more available, witnesses could be tested before testifying,

222 See, How to Protect Yourself & Others, CENTER FOR DISEASE CONTROL AND

PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-

sick/prevention.html (last visited Jan. 10, 2021).

223 Michael Scherer and Josh Dawsey, Pence team agrees to plexiglass barrier on his

side of debate stage, T

HE WASHINGTON POST, https://www.washingtonpost.com/politics/vp-

debate-coronavirus-safety/2020/10/06/ee44fa00-07e7-11eb-a166-dc429b380d10_story.html

(last visited Jan, 10 2021).

224 The court in Crittenden mentioned the use of transparent masks but dismissed the

Government’s suggestion the court substitute cloth masks for plexiglass screens. 2020 U.S.

Dist. LEXIS 151950, at *13. The court, however stated, “[n]othing in today's order prevents

any witness or other participant from appearing with a mask that is transparent in the

area of the mouth as long as it is consistent with CDC recommendations.” Id. at n.1. With

this footnote, the court seems to suggest that the use of transparent masks are sufficient.

This may be the best solution for the court in Crittenden to protect the defendant’s

constitutional rights.

Morrison - BP (Do Not Delete)

2021] IF THE MASK FITS 1291

allowing them to remove their masks during testimony. Clearly, there

are other possible procedures to protect the health of the courtroom as

well as the constitutional rights of the defendant. If courts are still not

confident with alternative procedures, the solution may be as simple as

postponing the trial until face masks are no longer recommended by the

CDC. However, no matter what decision is made or what procedure is

selected, the coronavirus should not and cannot preclude constitutional

rights.

CONCLUSION

In the wake of the coronavirus, courts are presented with the difficult

task of ensuring the health of all occupants while maintaining

defendants’ constitutional protections. Changing procedures and

enacting creative and uncommon measures to protect all individuals in

the courtroom cannot be an easy task, and every court should be

applauded for its efforts to reopen and provide for the community.

However, as courts rapidly adapt to the coronavirus, the courts cannot

overlook the Constitution. The text of the Constitution cannot be

disregarded, even during unprecedented times and even when the

requirements of the Constitution come at a high cost. Abiding by the

Constitution often does come at a cost. The cost today is that courts

cannot allow face masks during criminal trials, even during a global

pandemic, without violating the Confrontation Clause.

Nicole Morrison