The Volokh Conspiracy

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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."