You can see why Justice Perluss comes out the way he does in this case. given the questions that were asked and the way the issues were framed.
But the questions that aren't answered are, in my mind, at least as important as the ones that are asked and answered.
(1) The Court of Appeal squarely holds that the first question that the prosecution asked at trial didn't violate Miranda because, technically, the question was simply "Did you ask the defendant if the bag was his?" and the answer was "Well, I didn't, but my partner did." (I'm simplifying the exchange .) Okay, yes, technically, at least in light of the answer, the question didn't call for anything the defendant said, so there was no Miranda violation.
But the second question ("What'd the defendant say in response?) definitely called for something protected by Miranda -- at least if he was in custody, which he pretty clearly was, I suspect. But to that, the Court of Appeal says: "But there was no objection to that question, so the issue is forfeited."
Which is probably correct as a legal matter.
But it doesn't answer the underlying question: Was there a Miranda violation or not? And since that's still an issue, it'll come back again: this time, as an ineffective assistance of counsel claim. A fairly good one, at that, since there was zero tactical reason not to object to that second question as well.
So, yeah, the Court of Appeal elides the issue for now, but it doesn't really answer the relevant question, which is something they'll have to deal with at some point anyway.
(2) There's a similar thing going on with respect to the "Does wearing a mask during COVID violate the Confrontation Clause" issue. Not surprisingly, the Court of Appeal holds that wearing a mask is fine -- a holding consistent with pretty much every other court to have decided the issue.
That answers the question of whether wearing a mask is permissible.
But the real question -- a much harder one, in my mind -- is whether wearing a non-transparent mask during COVID violates the Confrontation Clause. There's no doubt wearing a mask that blocks one's view of the mouth and a big portion of the face makes it more difficult (though not impossible) for a jury to decide credibility, which is the whole point of the Confrontation Clause in the first place. And there's also no doubt that transparent masks are readily available -- ones that would obviate that problem -- and that these masks are likely just as effective at preventing COVID as the cloth and other masks that people are permitted to wear.
So the though question is whether, so framed, there's a Confrontation Clause violation. Yeah, the state can order people to wear masks. But if a defendant says "I want the jury to see your whole face; here's a transparent mask, wear that one," is there really a state interest in saying "Nope, the witness is free to obscure half of his face while testifying (and do so behind a plexiglass shield, even) despite the fact there's not really a state interest in making sure the mask isn't transparent?" That seems the much tougher -- and dispositive -- issue.
Those are the two questions neither asked nor answered in today's opinion.
