By Adam M. Dinnell

As American society copes with the COVID-19 pandemic, masks and face coverings have become the focus of legal mandates, political protests, and nonstop commentary—in some instances, even violence.[1] But beyond the public health guidance and ideological debates, trial lawyers face a new and unique question: Could whether a witness is wearing a mask impact their credibility in the eyes of a jury? The prospect merits serious consideration.[2]

Over the years, countless articles have been written concerning what witnesses should (or should not) wear for video depositions or trial. Published suggestions range from the trite (e.g. “court is a serious place that requires serious dress”[3]; “[a] neat appearance and proper dress in court are important”[4]; “[y]ou never get a second chance to make a first impression”[5]) to the mundane (e.g. “do not wear any jewelry other than a watch and a wedding ring”[6]; “don’t go too dark . . . [b]lack suits should also be avoided”[7]; “cover all visible tattoos”[8]). Ultimately, the best guidance may be the simplest—do not wear anything that could distract from your testimony—a recognition that appearance matters.

Civil case law rarely addresses witness appearance, but most pattern jury instructions on credibility suggest that a witness’s appearance while testifying is a component of demeanor and should be considered.[9] And in criminal law, the Supreme Court has made clear that the courtroom scene presented, including the appearance of the defendant (e.g. prison clothing, shackles), can have constitutional ramifications that must be addressed.[10] Again, both instances amount to a concession that appearance can and will impact juror decision making.[11]

According to recent psychological and sociological research concerning the COVID-19 pandemic, a person wearing (or not wearing) a mask in public can elicit a strong emotional response in others.[12] For some, the sight of another wearing a mask triggers feelings of trust, camaraderie, and sacrifice—perhaps a silent agreement that we are “in this together.”[13] Others associate the practice with feelings of fear, an external threat, or an instinct to “stay back.”[14] Still others view the sight as stigmatic, shameful, or a sign of weakness.[15] On the flip side, persons who refuse to wear a mask in public have been quickly labeled by some as irresponsible, selfish, and foolish.[16] Regardless of whether someone chooses to wear a mask, the likelihood that others will judge them for that choice cannot be ignored.

There is no reason to believe jurors will automatically check these types of biases at the courthouse door. While civil jury trials remain on hold for the time being, video depositions (that could be used at trial) with multiple participants in the same room are likely to return in the not-too-distant future. And things will likely not be “back to normal” even when jury trials make their return. Consider the following scenario: in a personal injury action, a defendant who was alleged to have been reckless towards the health or safety of others is deposed on video in the coming months. That defendant refuses to wear a mask during the deposition with others in the room. Could the lack of a mask trigger a negative emotional response in a juror? Worse yet, could this sight alone cause a juror to pre-judge whether the defendant was reckless as alleged? While there are countless scenarios on either side of this equation, trial lawyers must carefully consider that a witness’s choice whether to wear a mask could impact juror perception, and they should plan accordingly.

This will mean discussing the issue upfront with witnesses, even for video depositions. In some jurisdictions, trial lawyers may consider seeking a blanket pretrial order that applies to all trial participants and does not leave any room for divergent practices among individual witnesses (pending possible challenges to such orders). They also may want to request appropriate instructions throughout trial (or even make statements on their own) that help reduce the “mystery” surrounding masks by providing context. For example:

“As you will see, the witness appearing in this video deposition did not wear a mask during questioning. This is because all participants were remote/practicing social distancing.”

“As the next witness takes the stand, you will see that she is wearing a face covering. This is because she lives with someone at home who is high-risk.”

“You will note that throughout this trial, like the jury, some lawyers/clients/witnesses will be wearing masks and others will not. You should not draw any conclusions from this—everyone’s personal circumstances are different. Rest assured that this courtroom has been arranged to protect everyone’s safety, regardless of whether someone is or is not wearing a mask.”

At a minimum, trial lawyers should consider the need for motions in limine to prevent possible reference to whether a witness wore a mask during their testimony. The danger of such an argument is obvious (e.g. “Is it that hard to believe the witness was reckless on the day in question? As you saw yesterday, he did not care enough about those around him to wear a mask.”). Trial lawyers should also discuss court procedures for how court personnel and others will handle masks and, for their own part, ensure they are never giving off the appearance that “the rules do not apply to them.”

Masks and face coverings should also be considered throughout jury selection—both in terms of how a witness may be pre-judged and which prospective jurors may be unable to look past whether a witness is wearing a mask to fairly consider their testimony, particularly if there is no guiding court procedure regarding the jurors’ own use of masks. The issue, and any related concerns, should also be suggested as a topic for the court to question the venire during voir dire. In jurisdictions with no universal mask policy, trial lawyers may even benefit just from seeing the differing mask practices among the prospective jurors—this alone could offer useful insight into an individual’s worldview, including how they process information sources and view risk tolerance.

Ultimately, trial lawyers should start addressing this issue now to assess potential mitigation and, wherever possible, press courts to take the lead. In some instances, introducing this type of variable into the mix may alter a party’s settlement position, or even the desire for a jury trial versus a bench trial or form of ADR. To do nothing risks having a trial decided not on the substance of a witness’s testimony, but on a juror’s perception of whether wearing a mask is “responsible” conduct or not in light of the COVID-19 pandemic. Despite the uncertain times, that is a risk that trial lawyers may be able to avoid.

Adam M. Dinnell is a partner and trial lawyer at the Houston trial firm Schiffer Hicks Johnson PLLC, where he tries complex commercial and tort cases. He is a frequent trial advocacy instructor at various law schools and previously served as senior trial counsel with the U.S. Department of Justice, Civil Division.

[1] L.A. Now Requires Face Coverings Even When Outside, Los Angeles Times, https://www.latimes.com/california/story/2020-05-14/l-a-now-requires-face-coverings-even-when-outside-here-are-the-rules; ‘Let Freedom Ring’ Rally Protesters Speak Out Against Harris County Mask Order, Houston Chronicle, https://www.chron.com/coronavirus/article/Protesters-speak-out-against-Harris-County-mask-15222254.php; Man Without Face Mask Turns Violent When He’s Asked to Leave Texas Store, Fort-Worth Star-Telegram, https://www.star-telegram.com/news/coronavirus/article242761841.html.

[2] The suggestion is not that a witness must cast aside their own personal views on safety in order to placate a jury, but that jurors’ own perceptions of this issue should be considered in the leadup to trial and throughout voir dire. In jurisdictions where jury trials resume with a mandatory mask order in place for all involved inside a courtroom, the issue becomes moot. But without such mandates and uniformity, venires will likely consist of a mix—some wearing a mask and others not. This alone can be expected to offer useful insight.

[3] What to Wear to Court, https://www.minicklaw.com/what-to-wear-to-court.

[4] Tips for Testifying in Court, https://www.justice.gov/usao-mdpa/victim-witness-assistance/tips-testifying-court.

[5] Dressing Your Client for Success at Deposition and Trial, https://www.plaintiffmagazine.com/recent-issues/item/dressing-your-client-for-success-at-deposition-and-trial.

[6] How to Be a Good Trial Witness, https://www.mitchell-attorneys.com/good-trial-witness.

[7] What to Wear to Court, https://www.minicklaw.com/what-to-wear-to-court.

[8] Dressing Your Client for Success at Deposition and Trial, https://www.plaintiffmagazine.com/recent-issues/item/dressing-your-client-for-success-at-deposition-and-trial.

[9] See Motion in Limine to Suppress Wearing of a Police Uniform, 2006 WL 2515579 (Colo. Dist. Ct. 2006).

[10] See, e.g., Estelle v. Williams, 425 U.S. 501 (1976); Illinois v. Allen, 397 U.S. 337 (1970); see also Johnson v. Sullivan, Doc. 64, No. 1:14-cv-01216 (C.D. Ill. 2015) (criminal defendant’s motions in limine include requests to “remain unshackled and attired in appropriate civilian clothing when before the jury” and “allow his witnesses to dress in appropriate civilian clothing with their shackles out of the jury’s view”).

[11] Separately, at least one court has assessed whether letting a witness wear a religious veil or head scarf while on the stand violates the Sixth Amendment’s confrontation clause. See People v. Ketchens (Cal. Ct. App.); see also People v. Sammons, 478 N.W.2d 901 (Mich. App. 1991) (the defendant is deprived a face-to-face confrontation with a witness who testifies in court wearing a ski mask); Romero v. State, 173 S.W.3d 502 (Tex. Crim. App. 2005) (same where the witness worse a disguise that concealed “almost all of [the witness’s] face from view”); but see U.S. v. de Jesus-Castenada, 705 F.3d 1117 (9th Cir. 2013) (“the disguise in the form of a wig and mustache did not violate the [c]onfrontation [c]lause”).

[12] Masks in the COVID-19 Era, Psychology Today, https://www.psychologytoday.com/us/blog/bouncing-back/202005/masks-in-the-covid-19-era.

[13] Id.

[14] Id.

[15] Id.; Courtroom Attire is Important, http://legal-studies-resources.blogspot.com/2016/06/psychology-of-courtroom-attire_26.html.

[16] Refusing to Wear a Mask Is Selfish Behavior: Letters, https://www.sbsun.com/2020/05/15/refusing-to-wear-a-mask-is-selfish-behavior-letters.