At the first lay judge trial in Tokyo District Court after three months due to the novel coronavirus outbreak, defense lawyers refused to don face masks.

The refusal delayed the first hearing in a murder case on June 2 for more than two hours.

“I can’t defend the accused fully if I wear a mask,” a lawyer argued.

The lay judges finally acceded to the lawyers’ request. An acrylic board was placed in front of the lay judge closest to the lawyers, and the hearing continued. Lay judges are selected at random from the public and serve alongside professional judges.

“This is an important trial to decide the defendant's life,” the lawyer told The Asahi Shimbun. “The defendant and witnesses might change what they say by looking at my facial expressions during my questioning.”

However, some lay judges criticized the decision to allow the lawyer to take off the mask, saying that it lacked "common sense" at a news conference.

Many lawyers are fighting the courts' request for people in the courtroom to wear masks during the time of the pandemic.

They say that if defendants and lawyers wear masks at lay judge trials, that places them at a disadvantage.

A senior prosecutor empathized with defense lawyers, saying, “I can understand why lawyers argue that facial expressions are important during questioning in the courtroom."

But the prosecutor added, “If a group infection occurs, the trial that has just started will be suspended. We can’t help but take anti-virus precaution measures into consideration.”

An experienced penal judge said, “While social activities are now restricted, we can’t argue that a lay judge trial should be held as usual, as an exception.”

During trials, prosecutors and judges continue to wear masks.

Can wearing a mask in the courtroom have an influence over the opinions of lay judges?

“Not being able to see faces results in a loss of information,” said Kosuke Wakabayashi, an associate professor in the comprehensive psychology department of Ritsumeikan University.

Wakabayashi, who specializes in forensic psychology and conducts research on biases in the justice system, thinks that wearing masks could affect the outcome of a trial.

According to Wakabayashi, when humans have a conversation with others, they combine linguistic information based on audio and visual information obtained from facial expressions and other parts of the body together for comprehension.

They lose the visual information if the speaker is wearing a mask.

“A lay judge trial system places importance on communication in courtrooms,” Wakabayashi said. “Courts should make the upmost efforts not to lose (vital) information.”

After courts considered the opinions and requests from lawyers, some started to take preventive measures other than requiring the wearing of masks.

In a trial held at the Tokyo District Court in late June, the defendant wore a transparent face shield instead of a mask. The district court provided it at the request of the defense lawyers.

Lawyer Sogo Takahashi also set up his own transparent acrylic board in front of the witness stand before he talked to the lay judges.

“Not only what the defendant says but also his facial expressions and his movements are ‘evidence,’” Takahashi said. “If they wear masks, we lose part of the evidence.”

At a news conference, many lay judges expressed support for the defense going maskless.

One lay judge said, “It is difficult to know the feelings of defendants if they wear masks. It was good because I was able to see the defendant’s face fully.”

In a trial at Saitama District Court in mid-June, the defense team asked the court to allow the defendant and witnesses to remove their masks.

“If we cannot question them while looking at their faces, that will undermine the interest of the defense,” a lawyer said.

In response, the court set up a transparent bulletproof panel used for organized crime member cases around the witness stand for use during questioning of the defendant.

In a trial that started at the Chiba District Court on June 29, the judge allowed lawyer Hirotoshi Nohara and the defendant to wear mouth shields, at his request.

Akira Sugeno who works as the secretary-general of the Japan Federation of Bar Associations’ Center for Criminal Defense, said courts tend to give "excessive" consideration to lay judges.

“Courts should not ignore the right to defense of the accused in prioritizing assuaging the concerns of lay judges,” he said.