I am hearing from some attorneys that the judge is allowing live witnesses to wear masks. This presents a big problem in that jurors have a need and a right to judge the character of a witness. With masks covering the bottom half of a person’s face, jurors cannot get a reliable read on a witness’ demeanor. Therefore, be prepared to argue against masks for testifying witnesses. Most communication is non verbal – much more than 51%. This means that for a civil case, the jurors cannot decide if their burden of proof is met when the majority of that witness’ testimony is not discernible. In a criminal case, this is even more egregious.
There are other options to ensure the safety of those testifying. The witness is more than 6 feet from anyone. Clear face shields or walls can add extra protection. If a witness is still uncomfortable, consider having them testify remotely instead. Have a discussion with your witnesses ahead of time to ensure that they don’t show up expecting to wear a mask. Give them the options and discuss this ahead of time with the judge. With all of the options we have, there is no reason to compromise the integrity of the jury system.