2023 Criminal Trial Where Witnesses Wore Surgical Masks Violated Confrontation Clause

From last week’s Texas Court of Criminal Appeals decision in Smith v. State, written by Judge Scott Walker; the Court of Criminal Appeals is Texas’s highest court for criminal cases (the Texas Supreme Court handles civil cases):

Appellant’s Confrontation Clause rights were violated by the trial court’s mask mandate….

In Romero v. State (Tex. Crim. App. 2005), … one of the State’s key witnesses refused to testify without wearing a “disguise” consisting of “dark sunglasses, a baseball cap pulled down over his forehead, and a long-sleeved jacket with its collar turned up and fastened so as to obscure [his] mouth, jaw, and the lower half of his nose.” This Court noted that “the presence requirement is motivated by the idea that a witness cannot ‘hide behind the shadow’ but will be compelled to ‘look [the defendant] in the eye’ while giving accusatory testimony.”

[The court in Romero also reasoned that, “Although the physical presence element might appear, on a superficial level, to have been satisfied by Vasquez’s taking the witness stand, it is clear that Vasquez believed the disguise would confer a degree of anonymity that would insulate him from the defendant. The physical presence element entails an accountability of the witness to the defendant…. In the present case, accountability was compromised because the witness was permitted to hide behind his disguise.” -EV]

Although in Maryland v. Craig (1990), the Supreme Court [rejected a Confrontation Clause because it] determined that the testimony of a child through a one-way closed-circuit monitor was reliable even though the physical presence element was lacking, the facts in Craig are not analogous to Romero. “[U]nlike Craig, [Romero] also involve[d] a failure to respect a second element of confrontation: observation of the witness’s demeanor.” When more than two elements of confrontation are being compromised, this Court determined that the Confrontation Clause requirements can only be circumvented if the public policy interest being served is “truly compelling.” We did not find the witness’s fears compelling, noting differences between adults’ fears and children’s fears and the fact that the defendant already knew the witness’s name and address….

The Confrontation Clause requires case-specific evidence showing an encroachment of the defendant’s right to confrontation was necessary to further a public-policy interest for the encroachment to be allowed under the United States Constitution. Because a surgical mask affects the physical-presence element of the Confrontation Clause and the jury’s ability to assess demeanor, the trial court was required to make case-specific showings of fact that the mask mandate was necessary to further a public-policy interest….

[T]he use of surgical masks in the case at bar … is a significant impediment to viewing facial expressions due to the coverage of both the nose and mouth …. A reversal of the conviction is warranted because (1) the trial court did not show case-specific evidence that the masks were necessary, and (2) the mask mandate was applied regardless of individual necessity….

[Moreover], the trial took place in January of 2023, after face masks were no longer required by the Supreme Court of Texas and after the Governor had issued an executive order prohibiting mask requirements….

Presiding Judge David Schenck, joined by Judges Kevin Yeary and Jesse McClure, dissented:

This case poses the question of whether the trial court’s policy requiring every person in the courtroom, including witnesses providing live testimony in the presence of jurors, to wear a mask violated Appellant’s rights under the U.S. Constitution’s Confrontation Clause. To be sure, the COVID-19 pandemic presented many courts with the same question concerning trials during the time in which state and national declarations of disaster were in effect; the answer to that question was uniform: masking requirements do not violate a defendant’s confrontation rights. Now, this Court is presented with that question for a trial occurring post-pandemic. While the decision to require masks of all the trial’s participants and observers was imprudent and (we are told) evidently political, I do not believe the interference with the juror’s ability to observe witness demeanor somehow ripened into a Confrontation Clause violation….

The U.S Supreme Court has identified four elements that collectively ensure the right to confrontation: 1) physical presence; 2) oath; 3) cross-examination; and 4) observation of demeanor by the trier of fact. Craig. The “combined effect” of these distinct elements collectively “serve[ ] the purposes of the Confrontation Clause by ensuring that evidence admitted against an accused is reliable and subject to the rigorous adversarial testing that is the norm ….” Being different, they are not necessarily equal.

It is physical presence of the witness, as opposed to any of the other elements alone or in combination, that anchors the Craig analysis and, in turn, any evaluation of a claim of deprivation. “[A] defendant’s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.”

“Although demeanor evidence is … of … high significance, it is nevertheless well settled that it is not an essential ingredient of the confrontation privilege ….” While the demeanor of a witness is also significant, infringements on that aspect of confrontation alone typically will not impede the core interest in forcing witness accountability for his or her testimony or amount to a categorical denial of the face-to-face encounter so critical to confrontation. To date, the U.S. Supreme Court has never held—or considered—whether disruption of the demeanor element would, on its own, constitute a violation of the confrontation right…. Accordingly, only the physical presence element triggers the Craig analysis…. Should the answer to the threshold issue of whether there is a denial of the face-to-face component of confrontation in the first place be no, the Craig analysis is simply not implicated….

[In this case], the witnesses were physically present in the courtroom during testimony, testified under oath, and were subject to cross-examination by counsel and observation by the jury throughout…. [T]he witnesses in this case were actually present in the courtroom before Appellant and within his scope of vision. Additionally, the jurors could assess witness credibility and demeanor by observing “body language” and “delivery.” … “[T]he reliability of witness testimony” in this case “was otherwise assured; jurors were able to observe how witnesses moved, spoke, hesitated, and even cried,” the witnesses were not disguised, their eyes were visible, and had no degree of anonymity due to the ability to remove the masks for identification.

Sophie Bossart represents Smith.