Professor Julia Simon-Kerr · September 2020
88 Geo. Wash. L. Rev. Arguendo 158
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 preference to demeanor as a key input to credibility judgments. 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.
