Masking and Social Distancing During Voir Dire Doesn't Violate the Sixth Amendment


From Commonwealth v. Delmonico, decided last week by the Pennsylvania intermediate appellate court (Judge Correale F. Stevens, joined by Judges Mary Jane Bowes and Alice Beck Dubow):

Appellant complains that "[t]he members of the entire venire were required to wear face coverings and were then spread out over a vast distance, far more spread out than is standard practice for voir dire, a minimum of six feet apart, for social distancing purposes." He contends that, because of these restrictions, the trial court was unable to fully examine the prospective jurors' conduct and demeanor in determining their credibility and fitness to serve, and consequently, Appellant was not ensured the empaneling of a competent, fair, impartial, and unprejudiced jury….

We conclude the trial court did not abuse its discretion as to the scope or form of the voir dire examination and abided by the "essential demands of fairness." There is no indication the trial court was unable to adequately view the prospective jurors, examine their conduct, or perceive any factors indicating an "unsettled frame of mind[.]" In fact, the trial court indicated in its opinion that it was able to adequately assess the prospective jurors' answers during voir dire so as to determine, inter alia, whether to disqualify a prospective juror.

Moreover, we note the trial court did not arbitrarily require the prospective jurors to wear masks and socially distance during voir dire. Rather, faced with the COVID-19 pandemic, the trial court reasonably imposed these requirements and complied with governing safety measures employed by federal and state agencies, as well as our Supreme Court's emergency judicial orders. Simply put, we agree with the trial court that the masking and social distancing of the prospective jurors did not interfere with the sole purpose of voir dire: the "empaneling of a competent, fair, impartial, and unprejudiced jury capable of following the instructions of the trial court."

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  1. The confrontation clause, OTOH, might be another matter. But it doesn’t have anything to do with voir dire.

    1. This is voir dire, not examining a witness.

      1. Is the delete comment option gone now? Realized I misread the comment. 🙂

  2. The idea that the reading of faces has any validity for any purpose is not supported by data.

    1. Much like wearing masks and social distancing.

      1. Conspiracy nuttery.

        1. Reportrd, reported, reported.

  3. It will be interesting to see what effect all of the pandemic masking rules in courts have on future religious-liberty based claims to wear face coverings in court.

    1. I’m pretty sure reasonable people can tell the difference between safety steps for a pandemic and religious dogma.

      1. The people who prefer reason are rarely the problem.

      2. “I’m pretty sure reasonable people can tell the difference between safety steps for a pandemic and religious dogma.”

        Sure, but how the difference can manifest in courtroom practice is another issue.

      3. The question is not whether people can tell the difference, but instead whether, constitutionally, the 1st amendment permits that distinction to matter. If you allow people to wear a mask for secular reasons, can you deny them the right to wear one for religious reasons?

        I think not, based on recent free exercise rulings.

  4. Ugh… The common misconception that guessing whether someone is lying by looking at them is any more reliable than flipping a coin is responsible for so much suffering in the (US) criminal justice system.

    1. Martinned, not just the criminal justice system.

      The political system has become a meritocracy governed by a perverse metric; it advantages best whichever politicians lie most effectively. Politicians who tailor lies least detectable by folks least capable of detecting lies become electoral shoo-ins. That’s why congress looks the way it does. It’s why money for crassly deceptive television ads rules politics. It’s why Elise Stefanik is about to replace Liz Cheney.

      But in politics, at least, coin-flip odds would deliver improvement. Fifty-fifty voting would get the nation better politicians. License-to-lie politics seems to beat fifty-fifty odds pretty reliably. Old-fashioned, Abe Lincoln era politics may have been about finding the gullible and exploiting them. Today’s politics is more ambitious; it has developed methods to make more people gullible.

      American cynicism during a forthright previous era defined politics as, “The systematic organization of hatreds.” A century of subsequent progress refined that brutal insight. The most talented practitioners of modern politics now understand that deploying hatred as an inducement to gullibility wins even more political power than peddling mere hatred taken straight.

      Ability to exploit that insight is by no means a commonplace talent. It takes an actual sociopath to do it.

    2. I don’t think it’s so much as determining if a witness is lying and instead more of judging a witness in total.

      Are they:

      You can’t just dismiss non-verbals.

      1. Like sincerity, once you can fake them, you’ve got it made.

        The problem with visual tells is that they only work with some people, there’s a significant minority of the population that they’re totally worthless for.

        Anyway, the confrontation clause doesn’t apply to voir dire in the first place.

    3. Another of the hundreds of fake lawyer constructive doctrines. This quack profession must be crushed to save our nation.

  5. I agree that there’s no 6th Amendment requirement for jurors to show their complete faces.

    However, the Confrontation Clause might well create an issue for accusers and witnesses, and the defendant’s right to testify might well include a right to let the jury see the defendant’s face.

    But a pandemic creates a compelling interest.

    1. It creates an interest. Even if it’s a ‘compelling’ interest, does that really imply that masks are the least restrictive means to achieve it? Not transparent barriers, say?

  6. If the blind are not automatically excluded from juries and Arlo Guthrie could appear before a blind judge, I doubt there is a fundamental right to see the face of a witness or juror.

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