Unmasking Demeanor

17 Pages Posted: 26 May 2020 Last revised: 4 Sep 2020

See all articles by Julia Ann Simon-Kerr

Julia Ann Simon-Kerr

University of Connecticut - School of Law

Date Written: May 22, 2020

Abstract

Demeanor is seen as a critical tool for assessing credibility in U.S. courtrooms. From the Confrontation Clause to the Immigration and Nationality Act to the Federal Rules of Civil Procedure to the common law of credibility, the U.S. legal system gives priority and deference to assessing demeanor in the courtroom. Evidence law instructs that we must see a witness’s whole face in order to effectively “read” demeanor. Yet, a growing number of jurisdictions will require all participants in the courtroom to wear masks covering the nose, mouth and chin in order to prevent the spread of COVID-19. This essay canvasses the legal impediments to mask-wearing by witnesses. It argues that these legal obstacles are surmountable, and that this mask-wearing moment offers a unique opportunity to reassess the role of demeanor in credibility assessments. Focusing on demeanor forces witnesses to perform credibility, a performance that does not necessarily bring us closer to the truth.

Keywords: Evidence, COVID-19, Masks, Demeanor, Confrontation Clause, Constitutional Law

Suggested Citation

Simon-Kerr, Julia Ann, Unmasking Demeanor (May 22, 2020). 88 Geo. Wash. L. Rev. Arguendo 158 (2020), Available at SSRN: https://ssrn.com/abstract=3610460 or http://dx.doi.org/10.2139/ssrn.3610460

Julia Ann Simon-Kerr (Contact Author)

University of Connecticut - School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States

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