Read: We’ll be wearing things on our faces for a long time
Even selecting jurors fairly may be impossible. By law, both parties are entitled to participate in the selection process and strike potential jurors. Lawyers often base their peremptory strikes—i.e., those not based on cause—on information provided by potential jurors, not all of it expressly. For example, a lawyer might strike a member of the jury venire on account of a newspaper the potential juror is carrying or because a lawyer thinks the person gave the defendant a dirty look. Is this kind of information sufficiently available when potential jurors are wearing masks or are interviewed remotely as courts are doing in New Jersey? If not, is that constitutionally significant?
Then there is the problem of public access. The Sixth Amendment provides that the trial by an impartial jury to which a criminal defendant is entitled must be “public.” Although this right is primarily for the protection of the accused—to discourage misconduct through the disinfectant of outside scrutiny—the public has an independent right of access under the First Amendment. The public’s First Amendment right applies not only to the trial itself but also to other significant stages of criminal proceedings, including jury selection, hearings on evidentiary motions, guilty pleas, and sentencings. Traditionally, this has meant that the public has the right to be present in the courtroom while these matters are heard. Courtrooms can be closed or access-limited, upon a showing of a sufficient countervailing interest, such as witness safety, so long as the limitations are no greater than necessary. Thus, courts must be wary of blanket closures and make criminal proceedings available to the public through alternative means, such as a live feed at a dedicated room in the courthouse with socially distanced chairs, or a password-protected Zoom session. (Prosecutors and victim advocates have pushed back against proposals to live-stream trials on YouTube or other generally available channels, citing concerns about retaliation against witnesses.)
Precedents suggest that such measures would survive constitutional challenges in locations still hit hard by the pandemic, where public-health interests are at stake, but only if supported by specific findings by the court regarding their necessity. However, the adequacy of “live feed” public access to trials is an issue on which little authority exists and that the Supreme Court has never addressed.
Should criminal trials move forward, courts must also address defendants’ rights under the Sixth Amendment’s confrontation clause. That clause provides that in any criminal trial, the defendant has the right “to be confronted with the witnesses against him.” In recent decades, the Supreme Court has interpreted this clause strictly to require in-person testimony, subject to cross-examination, with very limited exceptions. Would testimony by a witness wearing a mask satisfy the confrontation clause, if it interfered with the jury’s ability to assess the witness’s demeanor? What if the mask were clear? Would remote witness testimony suffice? These are undecided questions that, according to some precedents, might turn on the necessity of the departure from the norm. But the Supreme Court’s more recent cases have suggested that the confrontation clause is not subject to such a cost-benefit analysis and is more absolute in its requirements. Decisions to allow witnesses to testify wearing masks, or to testify remotely—especially if made categorically rather than case by case, depending on the witness’s particular circumstances and COVID-19 rates in the judicial district—are thus particularly risky, and could lead to unconstitutional convictions.