From last week's Texas Court of Criminal Appeals decision in Smith v. State, written by Judge Scott Walker; the Court of Criminal Appeals is Texas's highest court for criminal cases (the Texas Supreme Court handles civil cases):
Appellant's Confrontation Clause rights were violated by the trial court's mask mandate….
In Romero v. State (Tex. Crim. App. 2005), … one of the State's key witnesses refused to testify without wearing a "disguise" consisting of "dark sunglasses, a baseball cap pulled down over his forehead, and a long-sleeved jacket with its collar turned up and fastened so as to obscure [his] mouth, jaw, and the lower half of his nose." This Court noted that "the presence requirement is motivated by the idea that a witness cannot 'hide behind the shadow' but will be compelled to 'look [the defendant] in the eye' while giving accusatory testimony."
[The court in Romero also reasoned that, "Although the physical presence element might appear, on a superficial level, to have been satisfied by Vasquez's taking the witness stand, it is clear that Vasquez believed the disguise would confer a degree of anonymity that would insulate him from the defendant. The physical presence element entails an accountability of the witness to the defendant…. In the present case, accountability was compromised because the witness was permitted to hide behind his disguise." -EV]
Although in Maryland v. Craig (1990), the Supreme Court [rejected a Confrontation Clause because it] determined that the testimony of a child through a one-way closed-circuit monitor was reliable even though the physical presence element was lacking, the facts in Craig are not analogous to Romero. "[U]nlike Craig, [Romero] also involve[d] a failure to respect a second element of confrontation: observation of the witness's demeanor." When more than two elements of confrontation are being compromised, this Court determined that the Confrontation Clause requirements can only be circumvented if the public policy interest being served is "truly compelling." We did not find the witness's fears compelling, noting differences between adults' fears and children's fears and the fact that the defendant already knew the witness's name and address….
The Confrontation Clause requires case-specific evidence showing an encroachment of the defendant's right to confrontation was necessary to further a public-policy interest for the encroachment to be allowed under the United States Constitution. Because a surgical mask affects the physical-presence element of the Confrontation Clause and the jury's ability to assess demeanor, the trial court was required to make case-specific showings of fact that the mask mandate was necessary to further a public-policy interest….
[T]he use of surgical masks in the case at bar … is a significant impediment to viewing facial expressions due to the coverage of both the nose and mouth …. A reversal of the conviction is warranted because (1) the trial court did not show case-specific evidence that the masks were necessary, and (2) the mask mandate was applied regardless of individual necessity….
