Texas Stamp


PD-0634-22 03/08/2023

  1. “If a witness testifies at a criminal trial while wearing a surgical mask that covers the witness’s nose and mouth, is a defendant’s Sixth Amendment right to face-to-face confrontation denied?”
  2. “Is there a general exception during a global pandemic to the Sixth Amendment Confrontation Clause and in-person confrontation?”
  3. “If there is a global pandemic exception, at what point does a global pandemic begin, and at what point does a global pandemic end?”
  4. “If particularized findings are necessary, were the findings in this case sufficient to dispense with face-to-face confrontation because doing so was necessary to further an important public policy, and the reliability of the testimony was otherwise assured?”

Finley was accused of beating his live-in girlfriend to unconsciousness. His misdemeanor assault trial began in July 2021 when trial courts were permitted to conduct jury trials if there were minimum health protocols including “masking, social distancing, or both.” Finley’s girlfriend, T.G., was the only eyewitness. She entered the courtroom to testify wearing a surgical mask covering her mouth and nose. Finley objected that this violated his right of confrontation, specifically jurors’ ability to evaluate her facial expressions. The State argued that if she felt “most comfortable testifying with a mask on in a room with many, many people in it…[she] was entirely within her right” based on the Texas Supreme Court’s Emergency Orders. The defense attorney responded that the court’s accommodations for social distancing were sufficient. The trial court permitted T.G. to wear the mask, citing the Emergency Orders.

On appeal, Finley reurged his confrontation issue. The court of appeals abated the appeal for the trial court to enter “case-specific, evidence-based findings” on T.G.’s particularized need to wear a mask. The trial court provided the county’s Covid-19 operating plan for in-person proceedings (which required procedures to protect judges and staff from Covid and minimize violations of the social-distancing rules but did not address masks) and statistics from the county health department showing a rising trend of Covid cases, deaths, and hospitalizations on the day before trial. The trial court’s findings included that:

·       T.G. wanted to wear a mask since she continued to do so;

·       identity was not an issue;

·       at least 14 trial participants were present during T.G.’s testimony;

·       T.G. could not have known what precautions they took to avoid Covid;

·       The Delta variant was dominant and spreading at the time;

·       T.G. was employed in a health-care facility and thus had specialized knowledge concerning masking;

·       her direct examination lasted about one hour and cross took more than 2 hours;

·       Finley’s counsel approached her six times and looked her in the eye;

·       T.G. had a right to be treated with fairness under Art. I, § 30(a) of the Texas Constitution.  

The court of appeals held that the findings were insufficiently particular as to T.G. It explained that generalized pronouncements about the need to protect against Covid could not meet the case-specific findings of necessity required by the Constitution. Although T.G. worked at a nursing home, this was not asserted as a basis for her wearing a mask before the trial court’s ruling, nor was there any evidence of what she did at the nursing home or that she was susceptible to spreading the virus to a high-risk population. Since masks were not generally mandated in the courtroom, the trial court apparently believed participants were already adequately protected. The court of appeals declined the State’s invitation to fashion a Covid exception to the constitutional requirement of particularized findings. Setting aside T.G.’s testimony, the court of appeals found the constitutional error harmful.  

The Court of Criminal Appeals granted four issues on its own motion. It refused the State’s issue, which asked whether—since Covid provided implicit reason for any witness to wear a mask—the requirement of case-specific findings was met.

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