Do Criminal Trials with Mask-Wearing Witnesses Violate the Defendant’s Right to Confront Witnesses?
No, said the Alabama intermediate appellate court last year (though apparently without a published majority opinion), and last Friday the Alabama Supreme Court declined to hear the case, also without a published opinion, in Ex Parte Rodriguez. But Chief Justice Parker, joined by Justices Bolin, Sellers, and Stewart, dissented—here’s an excerpt:
“[E]ven in a pandemic, the Constitution cannot be put away and forgotten.” Indeed, it is in times of greatest crisis that the rights in the Constitution require the most vigilant defense.
I therefore dissent from this Court’s denial of certiorari review of an important constitutional question: whether requiring criminal-trial witnesses to wear masks covering their noses and mouths while testifying violates the Confrontation Clause of the Sixth Amendment to the United States Constitution. “We have a duty to defend the Constitution, and even a public health emergency does not absolve us of that responsibility.” …
This criminal case was tried in the summer of 2021. A week before trial, Rodriguez moved for an order requiring witnesses to wear clear face shields, rather than masks, while testifying. The circuit court granted the motion. The day before trial, however, the court sua sponte reversed course and required all witnesses to wear masks, asserting that they were necessary because of a then-spreading variant of the COVID-19 virus. The day of trial, Rodriguez again moved to require only face shields, but the court denied that motion. Rodriguez was convicted. The Court of Criminal Appeals affirmed by a vote of 3 to 2, holding in an unpublished memorandum that Rodriguez’s constitutional right to confront witnesses had not been violated….
All constitutional analysis should begin with the constitutional text. “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” …. As the United States Supreme Court has emphasized, in applying the Sixth Amendment’s Confrontation Clause, we must ground our understanding in how the right of confrontation was understood at the time of the founding. The right is a “reference to the right of confrontation at common law.”
The common-law right to confront one’s accusers face to face goes back to the Roman Empire and ancient Israel [through Blackstone and Sir Matthew Hale]. [Details omitted. -EV] … [T]he common-law right of confrontation encompassed a right of “examination,” in which the jury has an opportunity to examine the witness’s countenance and behavior to weigh truthfulness.
After Independence was declared, John Adams drafted the Massachusetts Constitution, which recognized the right of a citizen “to meet the witnesses against him face to face.” Likewise, the Delaware Constitution of 1792 emphasized that citizens had the right “to meet the witnesses in their examination face to face.” Thomas Cooley, a leading expositor of the United States Constitution, explained that the Confrontation Clause requires that “the prosecution procure the presence of their witnesses in open court, where the jury may have opportunity to observe them.” This right was specifically a requirement to confront witnesses “face to face.”
Although our primary authority is the history and text of the Constitution itself, decisions of the United Stat
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