With in-person voir dire scheduled to begin Thursday in Michael Avenatti's California criminal trial, his lawyer is raising concerns about a pandemic-related issue that's playing out in courts across the country: masks or no masks?

H. Dean Steward, a solo practitioner in Orange County, California, said that allowing jurors to wear masks that conceal facial expressions violates a criminal defendant's Fifth Amendment right to due process and Sixth Amendment right to an impartial jury. 

Steward asked for a new trial for another client convicted of health care fraud in June by jurors whose concealed faces he said made it impossible to read their expressions, which hindered his ability to properly assess the temperament and reactions of both potential jurors during voir dire and sitting jurors during trial. The trial judge in that case has yet to rule on his written motion, but Steward was swiftly rejected when he raised the same issue orally with the judge in Avenatti's case, U.S. District Judge James V. Selna.

Other judges in the United States have taken similar stances, including U.S. District Judge Clay L. Land in the Middle District of Georgia, who ruled last November that requiring masks of jurors and witnesses "is necessary to further an important public policy."

"Without this procedure, everyone in the courtroom would face the risk of being infected with a lethal virus. The Court's masking requirement is based upon the best available scientific information and advice," according to Land's 22-page order.

U.S. District Judge Martha Vasquez in the District of New Mexico took a similar stance regarding masked jurors, but she agreed with lawyers who urged her to require testifying witnesses to wear clear face shields instead of masks so as not to conceal their faces.

"Requiring testifying witnesses to remove their face masks in lieu of clear face shields does not create an unacceptable health risk given that they will be situated apart from other trial participants on the witness stand and given that they will be testifying from behind plexiglass. The same cannot be said for prospective jurors during voir dire, however," according to the three-page order, issued last November. "The Court believes that [the defendant's] continuing ability to ask questions during voir dire, and his ability to see the upper half of prospective jurors' faces, is enough to satisfy his constitutional rights, at least in the middle of a global pandemic."

Though still newly litigated, the issue doesn't appear to have much traction at the appellate level.

The California Supreme Court in July 2020 rejected a petition arguing against masked jurors from civil defense lawyers in an Alameda County Superior Court asbestos case.

And in May, a Pennsylvania state appellate panel affirmed a trial judge's order requiring masking and social social distancing during jury selection in a criminal trial, concluding that doing so "did not interfere with the sole purpose of voir dire: the 'empaneling of a competent, fair, impartial, and unprejudiced jury capable of following the instructions of the trial court,'" according to the order.

Still, veteran trial attorneys agreed lawyers are right to be concerned.

"So much of a facial expression is masked by wearing a mask," said Thomas J. Nolan, trial counsel at Pearson, Simon & Warshaw in Sherman Oaks, California. "Frowns or smiles, you're depending completely on reading the eyes of jurors. You don't know what the overall facial reaction is when someone is surprised or grimaces at particularly difficult testimony or expresses just a concern through a frown."

Nolan also warned of muffled testimony because of masked witnesses, and he recommended trial attorneys ask jurors during voir dire to be forthright if they can't hear. "I would want to take the credit for raising the issue during voir dire and then asking the court to confirm that that would be appropriate, if they don't understand or can't hear to simply raise their hand," said Nolan, a former partner with Skadden, Arps, Slate, Meagher & Flom and Latham & Watkins. "Without that, I think a trial lawyer would be really dropping the ball in terms of effectiveness."

Sarah Gorman of the Law Offices of Robert D. Gorman in Albuquerque, New Mexico, is one of the defense attorneys who asked for jurors to be unmasked in the New Mexico case. She said they won the case, so ultimately, "I don't think it affected us poorly," but she said connecting with jurors was challenging both because of their masks and because of hers.

She briefly lowered her mask when introducing herself during voir dire, but for the most part her face was concealed.

"I always use voir dire as chance to connect with the jurors, and I felt like I wasn't able to do that as effectively, for sure," Gorman said.

Veteran trial lawyer Mark Lanier of the Lanier Law Firm in Houston said he'd try a case to a masked jury, "although I would petition the court to provide plastic masks for the jurors."

"I can readily read most expressions from jurors by body language and the face from the mask up. That said, if you are trying to spot someone lying to you, it is most easily done by observing mouth features.  (I.e., an asymmetrical smile, etc.)," Lanier said in an email.

Nolan said attorneys would need to raise the issue pretrial "with a reasonable alternative solution" for any request to stand a chance. Arguing after a conviction that masked jurors are to blame might not hold much water, he said.

"I would expect a seasoned judge to scoff at the notion by saying, 'Counsel, if you really rely on whether or not a jury is smiling at you or not during the course of a trial, you haven't tried many cases because, invariably, the jurors that appear to be friendliest to your client, in reality are the ones who are against the client," Nolan said.