Requirement That Witnesses Wear Face Masks During Trial Did Not Violate Sixth Amendment

US v. Maynard: Maynard was a police officer in West Virginia. He and his partner one night arrested Wilfong on outstanding warrants and for public intoxication. A tense rapport developed between Maynard and Wilfong (most of which was captured on video recorded in the police station). After Maynard had escorted Wilfong to the bathroom (which was off camera), he put on a pair of black gloves and told his partner “tonight’s the night” before flipping off the camera. From the bathroom came shouting and a series of loud noises. Wilfong fell on the floor (back on camera), at which point Maynard picked him up and hauled him across the room, eventually slamming Wilfong’s head into a doorframe. Maynard told his partner to call an ambulance and that he “went too fucking far.” Wilfong had a broken nose and cuts on his forehead that required staples to close.

Maynard was charged with violating Wilfong’s civil rights. Prior to trial, the district court entered an order requiring that everyone participating in the trial, including witnesses, wear face masks at all time due to the COVID-19 pandemic. Maynard objected and suggested an alternative – clear face masks that would allow jurors to see the witnesses’ faces as they testified. The district court rejected the suggestion, finding such masks insufficient protection. Maynard went to trial, was convicted, and sentenced to 108 months in prison, the bottom of the advisory Guideline range calculated at sentencing.

On appeal, the Fourth Circuit affirmed Maynard’s conviction and sentence. As to the masking of witnesses, the court rejected Maynard’s argument that it violated his Sixth Amendment right to confront witnesses and interfered with the jury’s prime position with regards to determining the credibility of those witnesses. The court held that the district court’s decision reflected an “important public policy interest” such as that the Supreme Court recognized in Craig, holding that was still good law after Crawford. In addition, the court held that the reliability of witness testimony was “otherwise assured” as they were cross-examined and the jury could examine their demeanor (at least partially). Finally, the court held that Maynard’s trial “preserved the Confrontation Clause’s core principles – physical presence and the opportunity for cross-examination.” The court also rejected Maynard’s argument that the district court erred in imposing a Guideline enhancement for “serious bodily injury,” holding that Wilfong’s injuries met that standard.

Full disclosure - I was defense counsel in this appeal.