Will mask-wearing hide the ability to assess truthfulness in court?

Chicago Daily Law Bulletin – February 9, 2021
by Jeffrey J. Kroll
Jeffrey J. Kroll is a founding partner of Kaveny+ Kroll LLC. He has achieved settlements and verdicts in a wide range of cases, from trucking accidents to medical malpractice to sports safety cases. He can be reached at jeffrey@kavenykroll.com.

As a practicing plaintiff’s personal injury attorney for 30 years and rapidly approaching my 57th birthday, I sometimes relate to the Farmers Insurance guy, “I know a thing or two because I’ve seen a thing or two.”

Yet, after a pizza delivery driver left, I could not come up with an answer to my 12-year old’s rather simple question, “Why do we get a round pizza cut into triangles and put it into a square box?” This wannabe teenager had me at a loss for words. I could not come up with a logical answer for Lily. I am sure there is some explanation or logic behind the reason, however, it escaped me at the moment.

That night, while lying in bed, staring at the ceiling, the events of that day led me down a quizzical journey which made me question why we drive on parkways and park on driveways. Needless to say, in my daughter’s eyes, 2021 got off to a slow start for her self-proclaimed “know it all” father.

Like many trial lawyers, I am anxiously awaiting to get back in the courtroom. It does not come without certain reservations and concerns about what will occur and how trials will be impacted. I know there are judges and attorneys far smarter than myself wrestling with these issues. Notwithstanding the pizza mystery, it leads me to another troubling topic – masked jurors and witnesses.

Obviously, the precaution of wearing a mask has been highly politicized. I can only imagine that the planning process of courts which are moving toward resuming jury trials, the topic of masks had to have raised some important questions. Are masks likely to impair the ability of lawyers to assess the truthfulness of potential jurors? Will masks impact the ability of jurors to assess the truthfulness of witnesses? Of attorneys?

Trial practice in the coming months is bound to pave new ground for jury selection in our pandemic world. Let’s face it, masks pose a number of conundrums. With a mask on, we most likely will not be able to pick up on the scowls or smirks which accompany many jurors during the seemingly endless redundant questions posed to the venire. Similarly, smiles are often used to reassure others, to communicate trustworthiness or to show compassion. With masks on, we just do not know what jurors may be thinking. Nonverbal communication can only go so far when one of the “tells” we rely on are facial expressions – not just the eyes, but the entire face.

Thus, I am a proponent that potential jurors be asked to remove their masks while they are questioned. I understand and appreciate social distancing and the requirement for masks. Notwithstanding the safety concerns, it is imperative we be able to question them unencumbered. We need to gauge the reaction of potential jurors to questions put forward to them.

Granted, that is one hurdle we will face with jurors. Every trial lawyer wants the ability to look at the jury and gauge their reactions to testimony or evidence. When wearing a mask, absent a shaking head or throwing down their notepad, it is going to make it difficult, if not impossible, to predict the jury’s thought process throughout a trial. Lawyers need to understand this may be the new norm for the foreseeable future.

What about the jurors’ capacity to assess the credibility of a mask wearing witness? Will a witness be encased in plexiglass? Will judges require witnesses stepping down from the stand to educate them in the well of the courtroom to wear a mask? If a juror’s ability to assess truthfulness is potentially impaired due to these new day restrictions, is it something which must be addressed in voir dire? For example, “Mrs. Smith, most of my witnesses will be wearing a mask while testifying. In evaluating the credibility of those witnesses, how will it impact you if they are wearing masks?” A simple amendment to Illinois Pattern Instruction Civil 1.01(A)(5) may be necessary. Such as, “Due to the current medical emergency, the witnesses will be wearing a facial mask. Instead of focusing primarily on the facial expression of the witness, rely on all of your tools of assessing a witness, you may consider…”

These are some of the questions which must be addressed prior to the courtroom doors opening. Of equal importance is whether our upcoming jury pools accurately reflect the community. Will individuals in groups hit hardest by COVID-19, i.e., African Americans, Latinos and the elderly be more reluctant to show up for jury duty. Will economic hardship now be a deterrent to more people serving? Only time will tell.

Just like the square pizza box housing its round treasures, we must look beyond the pale, or beyond the mask as it might be. As much as this seems to be yet another “pivot,” I am confident we will overcome this together.