Between facial expressions and body language, it’s estimated that anywhere from 70 to 93% of communication is made in a non-verbal manner. So when you block half of a person’s face with a face mask, eliminating a viewer’s ability to see frowns, smiles, grimaces and more, you can strip away much of our ability to communicate. This doesn’t just make it harder for the speaker to communicate how they feel, but also makes it more challenging for the other party to read the speaker’s subconscious facial expressions that may betray the fact that they are being untruthful. All this means that while face masks are necessary for criminal trials during the pandemic due to safety concerns, they could also subtly be injecting bias into the trials themselves.
Screening the Jury
When the San Diego courts finally reopened to accept jurors, the number of people actually reporting already plummeted. This already injects some level of bias because while a jury is supposed to be made up of a group that reflects the diversity of a local area, there is a distinct divide between the people who are more willing to go out in public during the pandemic and those who will do anything they can to avoid crowds -though hopefully the increased availability of the vaccine can help ensure more of those people start reporting for jury duty as well.
But once jurors show up for a trial, the prosecution and defense attorney must comb through the prospective jurors and eliminate those they feel may be biased for and against the defendant, respectively. Ideally, the end result will be 12 unbiased men and women. But what happens if a District Attorney or criminal lawyer can’t tell whether or not a juror is pursing their lips, blushing or making a strange expression? This can make it so much more difficult to judge if someone is lying, which could be particularly troubling if the lie is in response to a question about something that could bias the juror against a defendant.
The Defendant’s Facial Expressions
Of course, jurors aren’t the only ones who wear masks in court. The defendant and witnesses do as well. This means the jurors might have a harder time judging whether or not they believe these people are telling the truth when they take the stand, which could also change how the jury may feel versus how they would feel if the person was on the stand without a mask.
Perhaps more troubling though is that one of the things that juries often look for is whether or not the defendant looks emotionally impacted by the charges and the testimony of witnesses. This is particularly true when jurors decide on sentencing after finding someone guilty,
While tears may still have an impact, the jury won’t be able to tell if a defendant has a stony, blank face; a shocked, gaping mouth; or a cocky smile under their face mask. In fact, defense lawyers traditionally rely on being able to humanize their clients to the jury through the defendant’s expressions of remorse or similar emotions. Without this ability, it seems likely more people will be found guilty and those convicted will be given longer sentences by jurors than they would have otherwise.
Many experts are saying this may have even played into the guilty verdict in the Derek Chauvin trial since he seemed cold and remorseless throughout the trial -though he did choose to remove his mask during his attorney’s closing arguments and still continued to look unaffected emotionally.
Racial Biases and Face Masks
Research has also indicated that face masks can increase racial biases in person who already have some level of prejudice. The good news is that the study found that while these prejudices increase when an African American person wears a cloth mask or bandana, they do not increase if the person is wearing a surgical mask -so the obvious answer is for criminal attorneys to insist their clients wear surgical masks, particularly if the defendant is non-white.
If you have been accused of a crime and choose to go to trial to fight the charges, it’s critical you work with a lawyer who will do whatever he can to help ensure you receive a fair, impartial hearing. Peter M. Liss understands how prejudices can negatively impact our criminal justice system and hamper a person’s rights, which is why he takes these matters so seriously. Please call (760) 643-4050 to schedule a free consultation.