Objecting to remote trials & masks- Fairfax criminal lawyer comments

Objecting to remote trials and masks is vital in Virginia courts, says Fairfax criminal lawyer

Objecting is part of the toolkit of a trial lawyer. As a Fairfax criminal lawyer, I know that non-jury trials are resuming this week in most Virginia counties, while jury trials are on hold, during Covid-19. For courts not resuming most trials, they are expected to resume starting June 8, 2020. The counties where I practice that are resuming non-jury trials this week include Fairfax County (with selected cases reset in Fairfax, to limit the number of people entering the courthouse) and Loudoun. The remaining Northern Virginia courthouses are generally waiting to resume non-jury trials June 8, where essential non-jury trials and other proceedings continue at all courthouses (for instance protective order hearings, bond hearings, and various other proceedings with incarcerated individuals).

Objecting to remote proceedings when the Virginia criminal defendant is not incarcerated

Judges and many lawyers and criminal defendants in Fairfax court and beyond prefer proceeding with remote court proceedings (for instance via Webex or telephone) over in-person proceedings. Doing so is a balance between wanting to limit the spread of the coronavirus, avoiding lost focus by testifying parties preoccupied with possible Covid-19 infection if required to visit the courthouse, and barring courthouse visitors exhibiting possible coronavirus symptoms or who may have been with people or at places with increased risk of the virus; and wanting to enable pretrial proceedings to resume, provide for speedy felony and misdemeanor trials under the Sixth Amendment and Virginia Code, and assure that judicial and time resources are available to try cases with floodgates opening to previously delayed trials on top of new criminal prosecutions. Objecting to such proceedings as needed is critical.

If a criminal defendant is not in jail, s/he has all the more reason to be objecting to remote contested court proceedings when the Court makes them obligatory, and to opt out of remote contested court proceedings when opting out is an option. At the same time, Covid-19 provides opportunities to resolve cases that would have been less available in non-pandemic times. When the parties agree to a resolution that needs to be presented to a judge, then a remote proceeding can be acceptable so long as the judge is expected not to proceed counter to the agreed disposition among the criminal defense side and prosecution / Virginia commonwealth’s attorney’s office.

A remote court proceeding filters out the action, sound and visuals

A remote court proceeding filters out the action, sound and visuals. This is the same reason that people prefer seeing sporting events and concerts live. Not even the greatest cameraperson is going to be able to show sporting event attendees what they want to see; the camera cannot provide a global view of events, let alone a three-dimensional view. Not even the greatest stereo speakers can convey the subtlety of a great concert violinist — interacting with his or her fellow symphony musicians — like being in the same concert hall with that musician. Objecting to remote proceedings is vital as needed.

A remote court proceeding may not keep witnesses and jurors on their toes as much

If a witness or juror is present at home, s/he may not take the proceedings as seriously as being present within feet of a judge. Whether in jest or not, a very good trial lawyer on social media recently posted a photograph of himself ready for a Webex court proceeding, wearing his suit jacket, dress shirt and necktie, while also wearing shorts and sandals, because the camera will only depict what is above his belt. Although this particular lawyer knows how to be professional even if wearing a bathing suit to court, most witnesses and jurors need to be removed from their home comfort zones and kept in a courtroom to underline the importance and gravity of their oaths and role in the trial. The importance of objecting to such proceedings is all the more clear.

Remote court proceedings can hinder spontaneity

Trials often include physical exhibits, and confronting opposing witnesses with those exhibits during cross examination. A remote court proceeding will require submitting and marking each exhibit before trial, when I sometimes need to develop exhibits in response to what is happening in court. To the extent that such an exhibit would not need to be revealed in advance to the prosecutor for an in-court trial, the Court should assure that the prosecutor not see nor know about any such exhibit until the criminal defense lawyer proceeds to use that exhibit (and the defense cannot be required to use an exhibit merely because the exhibit is on his or her exhibit list). Objecting to remote trials and having them live returns more spontaneity to dealing with exhibits and witnesses.

When I am in court, I can point out various aspects of the exhibit to the judge and jury, and can mark up my exhibit copy in real time. The camera for remote video proceedings are not necessarily going to catch such spontaneity. Holding live trials is critical. Objecting to remote trials is needed.

Making objections to mask wearing by witnesses and jurors

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides the right of criminal defendants “to be confronted with the witnesses against” them. Furthermore, the Sixth Amendment also provides for “an impartial jury of the state and district wherein the crime shall have been [allegedly] commited.” Similarly, the Virginia Bill of Rights provides that a criminal defendant “shall enjoy the right to a speedy and public trial, by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty. He shall not be deprived of life or liberty, except by the law of the land or the judgment of his peers.” Virginia Constitution, Article I, Section 8. Furthermore, Virginia criminal defendants are guaranteed participation in the jury selection process through voir dire, peremptory strikes and cause strikes of jurors. Objecting to remote jury proceedings is vital.

All this means that Virginia criminal defendants should be entitled to proceed to trial without the wearing of masks by witnesses or jurors, and objecting to proceeding otherwise is vital. Of course, that might also mean delays in trials due to witnesses and jurors fearful of appearing inside public buildings without wearing masks. The objections to mask wearing include that we cannot see the facial expressions of mask wearers, which are an important part of determining truth telling, and determining which potential jurors will be fair. Also, it is harder to understand a speaker when we cannot see their mouths and lips move. Finally, a mask wearer may not feel as much of a need to be forthcoming than when his or her face is fully bared.

What to do about people who were face coverings for religious purposes, such as the wearing of a niqab? In a 2009 law review article, Steven Houchin argues for the right to wear religious articles, but for criminal defendants not to have to be confronted by people whose faces are covered. Houchin, Steven, “Confronting the Shadow: Is Forcing a Muslim Witness to Unveil in a Criminal Trial a Constitutional Right, or an Unreasonable Intrusion?” 36 Pepperdine Law. Rev. 823 (2009). , 2009. Mr. Houchin’s article is worthwhile for criminal defendants to develop further grounds for objecting to allowing witnesses and jurors to wear masks in court.

What if the would-be mask wearer is a witness for the criminal defendant? Then, the criminal defense lawyer needs to be ready to deal with the principal of what is good for the goose is good for the gander, and to explain to the criminal defendant that if the defense does not want opposing witnesses wearing masks, the same rule needs to apply to the criminal defense witnesses, or else said witnesses should not be called to the stand for the defense if the witness insists on wearing a mask.

Fairfax criminal lawyer Jonathan L. Katz pursues your best defense against felony, misdemeanor, and DUI prosecutions. Call 703-383-1100 to schedule a free consultation with Jon Katz about your court-pending criminal or DWI case.