Tuesday, September 22, 2020
Suppose you are a criminal defense attorney preparing a case for trial. Opposing counsel informs you that the key eyewitness is medically vulnerable to COVID-19 and plans to seek court permission to testify remotely while wearing a mask. Does the confrontation clause prohibit such testimony, requiring in-person, maskless cross-examination to vindicate the defendant’s constitutional rights?
Several courts across the country have recently addressed this question, with surprisingly disparate results and analyses. The cases remind us of just one more way that the COVID-19 pandemic places tension on both our everyday lives and our constitutional rights.
First, consider whether remote testimony is viable option that would meet the confrontation clause’s requirements. Some witnesses can testify remotely to prevent other harms; Maryland v. Craig, 497 U.S. 836 (1990) allowed young children who have been subject to significant trauma to testify remotely via one-way closed-circuit television. Craig demonstrates that the clause is not an absolute requirement for in-person testimony. Prosecutors might argue that pandemic conditions likewise justify limits on the full confrontation right such that remote testimony is sufficient. Yet Craig is likely limited to its facts, and it seems undermined by the fuller explication of the confrontation clause in Crawford v. Washington, 541 U.S. 36 (2004). Crawford was authored by Justice Scalia, who vehemently dissented in Craig, and who later suggested that remote testimony for adults might not satisfy the confrontation clause. Even if the argument in favor of remote testimony is stronger today given advancements in video conferencing technology, the confrontation clause does not come with any clear “exigent circumstances” exception that might apply to pandemic conditions. And it seems likely that frequent remote testimony would not meet with Supreme Court approval if used beyond Craig’s circumstances.
But the confrontation clause still permits prosecutors to admit prior recorded testimony from outside the courtroom in some situations. Where a witness is unavailable to testify at trial, the right to confrontation can be satisfied if that witness is first subject to an in-person evidence deposition during which the defendant had the opportunity to cross-examine. The evidence deposition is admissible as evidence at trial. The “unavailability” that triggers such a procedure has included a witness’s extreme, even life-threatening, illness. A witness whose health conditions make travel and in-court testimony during a pandemic a similarly life-threatening endeavor might also be considered unavailable, such that an evidence deposition taken prior to trial is a viable option.
But what if the witness wants to wear a mask while testifying? This may present thorny confrontation problems for either in-court or evidence deposition testimony. The right to confrontation exists in part to ensure that the defendant, and potentially the jury, can observe the demeanor of the declarant to assess her credibility. Does a mask preclude that needed evaluation of one’s demeanor?
Fortunately, masks do not fully preclude credibility assessment by defendants and jurors. Observers can still assess a masked witness’s demeanor by noting her body language, eye contact, and tone of voice. Indeed, courts have permitted testimony under conditions that only partially limit observers’ views of the witnesses face, such as testimony from behind a partial veil that does not cover the eyes and provides an opaque view of the witness’s lip movements. Masks with clear windows over the lips, permitting observers to see the speakers mouth while talking, are readily available. Thus, even if jurors can detect lies based upon live witnesses’ demeanors—a dubious proposition in its own right—the experience can be replicated through a mask. Thus, it is likely that courts can work around confrontation clause concerns, even in pandemic conditions, to ensure that the criminal justice system continues to function.
 See, e.g., Puerto Rico v. Rosario, 2020 WL 5238749 (P.R. Sup. Ct.); People v. Jemison, No. 157812, slip op. (Mich. June 22, 2020); United States v. Donzinger, 2020 WL 5152162 (S.D.N.Y.); United States v. Casher, 2020 WL 3270541 (D. Mont.).
 Richard D. Friedman, Remote Testimony and the Coronavirus, http://confrontationright.blogspot.com/2020/05/remote-testimony-and-coronavirus-crisis.html, May 4, 2020 (noting that Scalia argued against a proposed federal rule of criminal procedure that would have allowed for remote testimony in some cases).
 Eugene Volokh, Does Letting Witness Testify Wearing Partial Veil Violate the Confrontation Clause?, https://reason.com/2019/06/10/does-letting-witness-testify-wearing-partial-veil-violate-the-confrontation-clause/, June 10, 2019.