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THE COVID PROTOCOLS WERE IN EFFECT DURING DEFENDANT’S TRIAL; THE JURORS WERE REQUIRED TO WEAR FACE MASKS WHEN THEY WERE NOT BEING INDIVIDUALLY QUESTIONED DURING VOIR DIRE; THE INABILTY TO SEE THE JURORS’ FULL FACES DID NOT DEPRIVE DEFENDANT OF HIS RIGHT TO BE PRESENT DURING JURY SELECTION AND DID NOT VIOLATE HIS DUE PROCESS RIGHTS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, affirming defendant’s convictions, determined defendant’s inability to see jurors’ facial expressions during voir dire, because of the COVID mask-wearing requirement, did not deprive him of the opportunity to be present during jury selection and did not deprive him of due process of law. Although the jurors wore masks when not questioned during voir dire, the mask was removed when each juror was questioned individually:

… [D]efendant maintains that safety protocols implemented during the COVID-19 pandemic—namely social distancing and the requirement that prospective jurors cover their mouths and noses with a face mask when not being questioned individually—violated these rights because defendant could not see each prospective juror’s entire face throughout the jury selection process. Because neither a defendant’s right to be present during jury selection nor due process require that defendant have a simultaneous, unobstructed view of the entirety of every prospective juror’s face during jury selection, we affirm. * * *

… D]efendant was present at all phases of jury selection. … [D]efendant was able to hear the questions posed to prospective jurors and to observe their responses including their “facial expressions, demeanor and other subliminal responses.” * * *

… [T]he safety protocols in use at defendant’s jury selection were permissible as they did not impede defendant’s ability to be present and observe the selection process. A defendant’s right to be present at jury selection does not entail the absolute or unlimited ability to observe each prospective juror’s facial expressions. After all, there is much more to body language than a person’s nose or mouth; defendant could still observe a great deal about prospective jurors including their posturing, the position of their arms, and their eyes and eyebrows … . People v Ramirez, 2024 NY Slip Op 00848, CtApp 2-20-24

Practice Point: Here, during voir dire, the jurors who were not being questioned wore face masks. Defendant’s inability to see the full faces of the jurors when they were not being questioned did not deprive defendant of his right to be present during jury selection and did not deprive defendant of due process of law.

 

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