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Facemasks mandatory in NoVa courts says Fairfax criminal defense lawyer

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May 20, 2020 Facemasks mandatory in NoVa courts says Fairfax criminal defense lawyer

Facemasks mandatory in NoVa courts says Fairfax criminal defense lawyer- Facemask photo

Facemasks mandatory in NoVa courts says Fairfax criminal defense lawyer

Facemasks must be worn to enter Northern Virginia courts, says Fairfax criminal lawyer

Facemasks must be worn before entering all Northern Virginia courthouses, until further notice during Covid-19. As a Fairfax criminal lawyer, I provide you the following links for the mask policies — most similar to each other — in the Fairfax County, Arlington, Loudoun, Prince William and Alexandria, Virginia courthouses. Additionally, courthouse security personnel are commonly checking for fever in visitors, by aiming an infrared no-contact thermometer at one’s forehead, which cannot be felt.

Facemasks may be removed inside a courtroom with judicial permission, and are critical to be removed by witnesses against Virginia criminal defendants

This week, I saw a Fairfax felony preliminary hearing in progress, where the presiding judge had permitted the prosecution witness to testify without facemasks. today, I was in another Northern Virginia courthouse, for a criminal trial, where the judge permitted the lawyers, my client, and the ASL sign language interpreter to remove their masks. As I recently blogged here, it is critical that prosecution witnesses not wear masks while testifying.

Criminal defense lawyers must be able confidentially to communicate with their clients during court proceedings

Court-imposed physical distancing must not permit physically separating criminal defendants from their lawyers in the courtroom, because the Sixth Amendment guarantee of assistance of counsel includes the need for lawyers to have immediate and confidential communication access to their clients. For a lawyer and his or her client to hear and understand each other sufficiently, it is important that they be permitted to remove their facemasks during trial.

Barring members of the public from criminal trials clashes with the Sixth Amendment to the United States Constitution

Apparently to maintain physical distancing, this week in a central Virginia courthouse (where facemasks were required), courthouse security barred my client’s sibling from entering the courthouse on my client’s criminal trial date. In a Northern Virginia courtroom on my client’s criminal court date, my client’s relative was barred from entering the courtroom. Neither case proceeded to trial. If they had proceeded to trial, I would have been ready to urge compliance with the Sixth Amendment to the United States Constitution, which provides in pertinent part that: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.”

Appellate caselaw underlines how importance is a public criminal trial

“It is ‘the law of the land’ that no man’s life, liberty or property be forfeited as a punishment until there has been a charge fairly made and fairly tried in a public tribunal.” In re Oliver, 333 U.S. 257 (1948). This means that a general rule for wearing facemasks in court is one thing, but it is unconstitutional to bar a public criminal trial.

Furthermore: “The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy’s abuse of the lettre de cachet. All of these institutions obviously symbolized a menace to liberty. In the hands of despotic groups each of them had become an instrument for the suppression of political and religious heresies in ruthless disregard of the right of an accused to a fair trial. Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.” Id. Consequently, it is one thing to mandate the wearing of facemasks to enter the courthouse, but another thing entirely to proceed counter to the Sixth Amendment’s guarantee of a public trial in criminal cases.

Limits on making facemasks fashionable

Just as I like having designs on my neckties, if I am going to be required to wear facemasks in court, I wish the option to wear masks with color schemes and designs, which already are being sold on the open market. The Arlington court’s provision that masks have no markings does not make clear whether that precludes at least having multicolor themes on those masks without adding letters, words or other such markings.

Criminal defense lawyers ideally will bring unused or laundered masks for their clients and witnesses

In case the courthouse does not provide facemasks for those who do not bring them — or if the courthouse runs out — it is a good idea for criminal defense lawyers to carry extra clean masks, to provide with clients and defense witnesses.

Fairfax criminal lawyer Jonathan L. Katz is highly-rated and pursues your best defense against felony, misdemeanor and DUI prosecutions in Northern Virginia and beyond. Call 703-383-1100 for a free confidential consultation with Jon Katz about your court-pending criminal or DWI case. 

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