Covid and the courtroom - justice is not meant to be masked
It has unfortunately become the standard phrase in my office and in law firms around the country…”well, with COVID no one knows when the courts will be up and running.” Not only is that response infuriating to clients who have been waiting for their day in court, it is just as frustrating to trial attorneys. It has been nine months since the courts first started shutting down due to COVID infections concerns and yet, we are no further in figuring out how to proceed forward to trials, while protecting constitutional rights.
The courtroom is sometimes referred to as life’s greatest stage. There is the pomp and circumstance of the courtroom itself - standing as the judge walks into the courtroom, standing again in honor of the jury as they enter, asking to approach the witness or the judge. Attorneys and witnesses become actors, trying to recreate for jurors a past incident. They are judged on their performance by jury who assessing body language, facial expressions, and demeanor. This process is set up to be in person so that you can see the whole person from the face to the toes while making judgment.
“When it comes to studying faces, the eyes and mouth are the most informative regions because they tend to be the most expressive.”
The courts have tried to get creative with hearings via Zoom or Go to Meetings, nothing can replicate a courtroom setting. Some courts have forged ahead with in person trials, demanding masks be worn, people separated by plexiglass, and no papers be passed to people. I personally have objected to having any type of trial in this format. You are asking twelve (12) people to judge a witness’ credibility while we are all wearing masks? When it comes to studying faces, the eyes and mouth are the most informative regions because they tend to be the most expressive. We subconsciously analyze their combined movements to figure out what someone is trying to tell us. A mask, properly worn, removes 50% of that informative region.
“The key to correctly interpreting facial expressions is to study body posture, body motion and context. ”
Trials via Zoom or Go To Meetings are even worse for judging truthfulness. Facial expressions form part of a coordinated package of cues – including hand gestures, body language, words, pitch and tone, and even face color – acting together in a congruous way to convey message and intent. The key to correctly interpreting facial expressions is to study body posture, body motion and context. In a video hearing, the witnesses and attorneys are generally only seen from the chest up. A study by Aleix Martinez, an electrical and computer engineering professor at Ohio State University shows the importance of being able to see the “whole picture” like in person.
To illustrate his point, Martinez refers to two cropped pictures. In one, a young woman is frowning, tears pooling in her eyes. In the other, a red-faced man, brows furrowed, has his mouth open wide in an apparent scream. She looks terribly sad while he looks like he’s going to kill somebody, says Martinez. But upon zooming out, you’ll see that the pictures are of a star-struck fan and an ecstatic football player who’s just scored a goal.
The sad reality is that there is not a viable solution fix these issues. Our adversarial trial process is just not meant to be via video. Our justice system is not meant to masked.