For the Defense - Vol. 5, Issue 3 - 9

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a minimal impairment of the jurors'
opportunity to assess her credibility."28
An undercover law enforcement witness
may testify wearing wigs and other
light disguises that did not impair the
jury's ability to view the witness's full
facial expression as the defendant's
confrontation right was preserved
and the limitation on face-to-face
confrontation was warranted to protect
the witness's identity.29
An undercover law enforcement witness
may testify wearing a balaclava which
covered most of his mouth but still
permitted the jury to see "most of his
face."30
A law enforcement witness whose
identity must be concealed to protect his
safety, such as a U.S. Marshal involved
in Witness Security, may testify using
makeup to disguise his identity because
"makeup . . . may allow the jury to have a
clearer view of the witnesses' faces than
would sunglasses or a hat."31
A witness may not testify wearing a fullface mask, i.e., covering both face and
head, as that prevents observation of the
witness's demeanor and "may very well
make a witness feel quite differently
than when he has to repeat his story
while looking at the defendant."32
A witness who purportedly fears for
his safety may not testify in a disguise
that "leave[s] visible only [his] ears, the
tops of his cheeks, and the bridge of his
nose," as this prevents observation of the
witness's demeanor.33
A witness who fears the defendant may
not testify behind an opaque screen
placed between the witness stand
and the defendant which provides
"dramatic emphasis" on the witness and
improperly interfered with the jury's
critical "assessment of the credibility of
the [defendant's] accuser."34

These decisions follow Craig's two-part test
of considering the public policy behind the
witness's obscured face and the availability of
other confrontation elements, such as whether
the witness is subject to cross-examination and
whether and to what extent his or her demeanor
can be observed.

Applying Craig to potential in-court testimony
by prosecution witnesses wearing COVID-19mandated masks, such as N95 masks or cloth
masks that cover the lower half of the wearer's
face (i.e., nose and mouth), it is likely that many
courts will find such testimony permissible. The
public policy of preventing the transmission
of COVID-19 to all in the courtroom by having
witnesses (and others) wear masks is a substantial
public interest, and many jurors may not be at
ease if the witnesses are not masked. Further,
given certain courts' analysis of demeanor beyond
facial expressions, and including posture, eye
contact, and tone of voice, it is likely that many
courts will find that the other indicia of reliability
are sufficiently present to permit the masked
testimony.

Remote Testimony Via Video
Conferencing
To date, the U.S. Supreme Court has only
considered the constitutionality of remote
testimony under narrowly circumscribed
circumstances - testimony by child sexual abuse
victims via closed-circuit one-way television.35
The Court has not considered whether other
remote testimony arrangements, such as live
two-way remote testimony via video conferencing
technology, are constitutionally permissible. Other
courts disagree on whether Craig even applies to
these situations.

Federal Courts Are Split
The Third Circuit has not addressed this issue
and other courts of appeals have reached
conflicting results. For example, the Second Circuit
has limited Craig to one-way video testimony
where the witness cannot view the defendant,
rather than two-way video testimony where
the witness can, and has found that two-way
video testimony is compatible with the Sixth
Amendment confrontation right and need not be
justified by an important public policy concern.36
Conversely, the Eleventh Circuit has applied
Craig to two-way video conferencing and found it
violated the Confrontation Clause, at least under
the circumstances presented.37 In United States v.
Yates, the trial court permitted two government
witnesses to testify through live, two-way video
conferencing from Australia. The government

Vol. 5, Issue 3 l For The Defense

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For the Defense - Vol. 5, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 5, Issue 3
