CJEO Oral Advice Summary No. 2020-032 — Judicial Obligations Regarding Witness Face Masks During the COVID-19 Pandemic

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CALIFORNIA SUPREME COURT
COMMITTEE ON JUDICIAL ETHICS OPINIONS
350 McAllister Street, Room 1144
San Francisco, CA 94102
(855) 854-5366
www.JudicialEthicsOpinions.ca.gov
CJEO Oral Advice Summary 2020-032
[Issued May 26, 2020]
JUDICIAL OBLIGATIONS REGARDING WITNESS FACE MASKS DURING
THE COVID-19 PANDEMIC
I. Question
In anticipation of courts reopening and participants in civil and criminal trials being
asked or required to wear masks because of continued concerns arising from the COVID-19
pandemic, a judge asks whether judges may ethically require a witness or party who has
expressed a fear of uncovering his or her face to remove a partially obscuring mask while
testifying.

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II. Oral Advice Provided
While judges have an obligation under the Code of Judicial Ethics1 to maintain their
courtrooms in a manner that provides litigants the opportunity to have their matters fairly
adjudicated in accordance with the law (canon 3B(8)), what the law accords in any particular
matter is a legal question rather than a judicial ethics question. The California Supreme Court
Committee on Judicial Ethics Opinions (CJEO) is without authority to offer advice about legal
questions concerning balancing individual due process and other rights with individual health
and safety measures.
III. Discussion
The judicial branch has undertaken a series of significant actions in response to the
emergence of the novel coronavirus and the potentially catastrophic public health threats posed
by the COVID-19 pandemic. In order to protect the health and safety of the public, courts have
been partially or completely physically closed, most documents are now required to be filed and
served in electronic form, and most judicial proceedings and court operations are currently
conducted by employing video, audio, and telephonic means for remote appearances and by
using remote interpreting, reporting and recording to make the official record of actions and
proceedings. (Cal. Rules of Court, appen. I, Emergency Rules Related to COVID-19, rule 3.)
These emergency procedures can be expected to relax somewhat as conditions permit courts to
eventually reopen. Inevitably, though, the way that courts conduct their business will be
changed for the foreseeable future to reduce the risk of continued spread of the novel
coronavirus.
Among the expected changes to court procedures are new policies that permit or require
individuals to wear masks when participating in court proceedings, including in civil and
1 All further references to canons and the code are to the California Code of Judicial Ethics
unless otherwise indicated.

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criminal trials. Having witnesses provide testimony while a portion of their face is covered by a
mask would represent a significant departure from the face-to-face engagements that were the
norm in prepandemic times. It may also implicate constitutional considerations under the Sixth
Amendment’s confrontation clause, the Fourteenth Amendment’s due process clause, and the
parallel protections of the right to confront and to due process guaranteed by article I, sections 7
and 15 of the California Constitution. On the other hand, protecting litigants’ constitutional
rights by requiring witnesses to remove their masks when testifying might risk the health not
only of the witness but also of everyone else in the courtroom. CJEO has been asked to provide
advice as to whether a judge may ethically require a witness who has expressed a fear of
uncovering his or her face to remove a protective mask when testifying.
The Supreme Court established CJEO to provide ethics advice to judicial officers and
candidates for judicial office. (Cal. Rules of Court, rule 9.80(e).) To help CJEO fulfill its
mandate, judges and candidates are encouraged to seek ethics advice from CJEO, and CJEO
endeavors to provide them with guidance for complying with the canons. CJEO is not limited to
issuing advice solely under the code, but may also advise on proper judicial conduct under the
California Constitution, statutes, and “any other authority deemed appropriate” by CJEO. (Cal.
Rules of Court, rule 9.80(e)(1).) This necessarily limits the committee’s advice to matters of
judicial ethics. As an advisory body, CJEO has no authority to resolve legal disputes or provide
an opinion on legal issues. (CJEO Oral Advice Summary 2019-028 (2019), Service on a Civil
Liberties Program Advisory Panel for the State Library, Cal. Supreme Ct. Com. Jud. Ethics
Opns., pp. 1-2 [CJEO has no authority to provide legal advice and declines to do so; citing
CJEO Oral Advice Summary 2015-010 (2015), Service by an Appellate Justice as a Compliance
Officer, Cal. Supreme Ct. Com. Jud. Ethics Opns., pp. 1-2].)
Although the question presented does implicate a judge’s ethical obligations to provide
fairness in judicial proceedings under canon 3B(8),2 the primary issues it presents are legal in
nature and not ethical. The question of whether a witness may be compelled to remove a mask
2 Canon 3B(8) states in full: “A judge shall dispose of all judicial matters fairly, promptly,
and efficiently. A judge shall manage the courtroom in a manner that provides all litigants the
opportunity to have their matters fairly adjudicated in accordance with the law.”

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is likely to be resolved by a balancing of the legal rights of the witness against the litigants’
rights of confrontation and due process under the Sixth Amendment, Fourteenth Amendment
and article I of the California Constitution. (People v. Murphy (2003) 107 Cal.App.4th 1150,
1155 [a defendant’s right to confront accusatory witnesses may be satisfied absent a full face-to-
face confrontation at trial where (1) denial of such confrontation “ ‘is necessary’ ”; (2) it “
‘further[s] an important public policy’ ”; and (3) “ ‘the reliability of the testimony is otherwise
assured’ ”], quoting Maryland v. Craig (1990) 497 U.S. 836, 850, 110 S.Ct. 3157, 111 L.Ed.2d
666; People v. Williams (2002) 102 Cal.App.4th 995, 1009 [due process requires that any
limitation on face-to-face testimony comport with fundamental fairness].) Such legal issues fall
outside the purview of CJEO, which has no authority to provide advice on questions of law.
(Cal. Rules of Court, rule 9.80(e)).

This oral advice summary is advisory only. (Cal. Rules of Court, rule 9.80(a), (e); Cal.
Supreme Ct. Com. Jud. Ethics Opns. (CJEO), Internal Operating Rules & Proc. rule 1(a), (b).)
It is based on facts and issues, or topics of interest, presented to the California Supreme Court
Committee on Judicial Ethics Opinions in a request for an opinion (Cal. Rules of Court, rule
9.80(i)(3); CJEO rules 2(f), 6(c)), or on subjects deemed appropriate by the committee (Cal.
Rules of Court, rule 9.80(i)(1); CJEO rule 6(a)). The conclusions expressed in this summary
are those of the committee and do not necessarily reflect the views of the California Supreme
Court or any other entity. (Cal. Rules of Court, rule 9.80(b); CJEO rule 1(a)).)