Veiled Testimony: Is It Fair If You Can’t See Your Accuser’s Face In Court?

 

I have an affinity for cases in which the Establishment Clause of the First Amendment bumps up against some other law, especially some other fundamental right, such as Freedom of Speech.

Here is a compelling example of just that kind of case coming out of Canada: Are the rights of the accused violated if a witness is allowed to testify while wearing a veil? Or, put another way, can people testify in court if you can’t see their entire face?

The Sixth Amendment in the U.S. Constitution guarantees those accused of crimes the right “to be confronted with the witnesses against [them].”  This right provides the foundation of our modern hearsay laws and requires that the accused may “confront” witnesses against them in court, generally in the form of cross examination.

But what if your accuser is there in the courtroom… while wearing a niqab?  You’d have the ability to cross examine the witness, which seems to be the main thrust of the right, but is there more to it than that?

Only one case here in the U.S. has addressed this issue and this is how it went down:

[The case] involved a Muslim woman who went to small-claims court in Michigan to contest a charge from a rental-car company. Hamtramck District Judge Paul Paruk refused to let her testify with a veil on, and the woman, Ginnnah Muhammad, sued him in federal court alleging violations of her First Amendment right to free exercise of her religion.

“One of the things that I need to do as I am listening to testimony is I need to see your face and I need to see what’s going on and unless you take [the veil] off, I can’t see your face and I can’t tell whether you’re telling me the truth or not and I can’t see certain things about your demeanor and temperament that I need to see in a court of law,” Paruk had told her.

A court in Canada has suggested a balancing test: the veil must be removed, but only if wearing it “truly jeopardizes” the accused’s right to a fair trial.

It’s hard to argue against a balancing test — it seems so fair! — but if I were accused of a crime, I’d be pretty upset if the person pointing the finger was completely covered.  It just wouldn’t seem fair.  I’d be there for all the world to see, and the jury (or judge, if it’s not a jury trial, but let’s not split hairs) could look at me and see if I seemed like a liar or a criminal or a generally bad person.  But then the person accusing me of the crime would be hidden from view.  No one would really be able to tell what she looked like, much less whether she seemed truthful or forthright.  And I imagine that if you’re the one facing jail time, then you want to be able to take full advantage of your right to show the jury that the person accusing you of the crime is not truthful.  That said, when a government actor (here, the court), orders someone to violate one of the tenets of their religion, there had better be an awfully good reason.

How would you come down on this issue?

(Image courtesy of shutterstock)

About katherine

Born in Texas, Katherine is now a lawyer in the northwestern United States.

  • Sarah

    “(snip) and the jury (or judge, if it’s not a jury trial, but let’s not split
    hairs) could look at me and see if I seemed like a liar or a criminal or
    a generally bad person”

    Maybe you’ve just made the argument -for- being covered. Since when do our courts-of-law rule on appearances? You think just by looking at someone you can tell if they are “generally a bad person”?

    This statement is troubling at best.

    • http://twitter.com/0xabad1dea Melissa E

      The nature of witness testimony still does, and probably always will, boil down to “does this person SEEM truthful?” because we cannot read their minds and we cannot replicate the crime in a lab.

      It’s not perfect. But when something seems off about a person testifying under pressure, it’s almost always because they’re not being entirely forthright.

      • http://conuly.livejournal.com/ Uly

        Or because it’s a stressful situation and people react in odd and varying ways to stress.

        Or because they’re neurologically atypical and they present as “off” when really there’s nothing WRONG with them.

        Or because their culture has different modes of behavior which may make them appear off, aka “deceitful” to you.

        Or because NTs really aren’t as good at mind-reading as they all think.

  • Sarah

    As for the whole thing in general.. you have the right to face your accuser. But if the accuser was already veiled during the crime or -would- have been veiled during the crime if she had the opportunity, then she should be allowed to appear in court in the same manner through which she exists in everyday life.

    If she does not normally wear the veil.. then no, it shouldn’t be permitted because that’s not obviously who she is.

    • http://www.facebook.com/eukota Darrell Ross

      I think this is a strange argument. What if you were attacked by someone from behind and never saw them and they were later apprehended?

      If they regularly wear a mask (or claim to at any rate), then you would never actually see your attacker and that’s ok?

      I presume that that guy who got away with claiming his pasta strainer was religious headgear could wear that to court too then?

      A couple odd options:
      1. Everyone wears veils!
      2. Strictly enforced dress-code.

      • that guy, over there –>

        Option 3: Everyone goes to court naked!

      • Insightfill

        “then you would never actually see your attacker”
        Then there’s whole ‘Innocent until proven guilty thing’. In that example, they might be found as “not guilty” and you STILL haven’t seen your attacker.

        If they’re found not guilty (nobody is ever found “innocent”) then they leave. If they’re found “guilty”, then I assume that pictures WILL be taken.

        And: in the original case as part of this article, the person wearing the veil is THE WITNESS, not the attacker.

  • Jacaissie

    Sarah, I see your point and agree that that sort of gut-based justice is troubling, but then it kind of leads to the question of why we have a right to confrontation in general?  Is confrontation merely submitting questions in writing and giving the person plenty of time to come up with convincing lies to tell?  Or can you tell by demeanor, or body language, etc., whether someone is lying? 

  • Sue Blue

    Evidence is more important than impressions and looks.  What if you’re a juror and the defendant looks just like that bitch of a boss you have or that kid who beat you up in high school?  Or the plaintiff is really hot?  I know myself that I am influenced by appearance, tone of voice, personality, and other aspects of a person that are not relevant to that person’s guilt or innocence.  No matter how much I tried to focus on the evidence, I would probably be swayed more by the emotions the trial raised in me.  This happens constantly in our courts – anyone remember OJ?  To me, a truly fair trial would be one in which all the testimony was given by a narrator reading the statements of the defendant and plaintiff in a neutral, sexless tone in a room where only the jury sat.  Just the facts, ma’am.

    • TheHonestAtheist

      Have you ever played poker?

      • HA2

        There are two interpretations of that statement. One interpretation is that as a poker player, you believe you have personal experience indicating that looking at people helps you tell whether their lying. The other interpretation is that poker players know how to change their face to look honest when they’re not, and so there’s no reason to have that happen in a courtroom, so no need to prevent veils, it only advantages good actors, irrespective of whether they’re innocent or guilty.

        • TheHonestAtheist

          Correct.  In both parallel situations, the accused can look at the witness and make determinations for themselves if the witness is a good liar/actor.   But not if the witness has their face covered up.  Right?

  • Jflycn

    As long as the identity of the witness has been verified, it does not matter whether you can see him/her face.

    • http://itsmyworldcanthasnotyours.blogspot.com/ Anonymous

      And how are you supposed to do that if you can’t see her face?

    • BrianMacker

      How do you propose to do that? My drivers license, birth certificate, and other identification does not have my fingerprints or a DNA sample. Even if they did then you need to run the test with an expert present. So if I show up in court with a mask on and never take it off the how are you going to identify me? Having an ID card isn’t enough because I could give that to an impostor in a mask.

  • http://www.facebook.com/profile.php?id=591058715 Thomas Farrell

    If someone wants to testify in their own defense while veiled, I’d let them, because it’s a matter of their own rights to a fair trial and to religion, and if they want to do it in that manner, that’s their problem. I would allow the prosecution to question their veracity based on their covering their face while testifying.

    I would not allow prosecution to call a veiled witness, because that would violate the rights of the accused to a fair trial. The witness’s right to religion would not be violated, as they could choose to not testify or to take off the veil and be eligible to testify.

    • HA2

      What about if the victim of the crime is the one wearing the veil?

      Are you saying that anybody who wears such garments can have crimes committed against them with impunity, unless they are willing to remove them in court to testify that a crime was committed?

    • http://conuly.livejournal.com/ Uly

      How is it violating your right to a fair trial to have a witness who wears more clothes than you?

      This DOES violate the witness’ rights. That’s like saying “I wouldn’t allow atheists because they won’t swear under God. They can swear if they want to, or they can cling to their stupid ideas and not swear, and then not be witnesses.”

      • Heisenberg

        Good point, but I’m sure a pedant/sadist could argue that the atheist is being forced into a religious action to take part in a system of justice that is SUPPOSED to stand without religion. The woman being asked to remove her veil is being equalized with the other people participating, her religion should be left at the door, along with those of the other participants. It’s a slippery slope though, because the definition of religious garment could spiral out of control. 

        Although, like many people have already said, if that’s the norm for her, couldn’t she argue that forcing her to remove it could throw her ability to stay confident and relaxed and harm her ability to take part to the best of her abilities? I know if I believed I needed to keep my face covered at almost all times and ended up in a court room, I’d be nervous enough without having to present myself in an uncomfortable fashion. 
        However, it could be said that maybe someone who has the chance to remain fairly anonymous would be more inclined to take iffy situations to court. Imagine if Casey Anthony wore a niqab, I imagine her life would be totally different now as she is probably recognized and hated almost everywhere she goes…?

        Sorry, I had waaaaaay too much coffee.

        • http://conuly.livejournal.com/ Uly

          Nobody else really has to “leave their religion at the door”. Nobody is asked to take their yarmulke off, or to NOT swear on a Bible if they choose.

          • http://www.facebook.com/profile.php?id=649813048 Nicoline Smits

            It could be argued that they *should* be required to do so, though. And you’re not made to swear on a bible. One is allowed to make an “affirmation.”

  • Kevin

    I see two problems. 

    One is the reliance on demeanor to evaluate the truth of one’s testimony. It’s fairly known that some people can say false things confidently and some people get nervous in social situations or when challenged.  By focusing on their demeanor, we tend to overemphasize insignificant actions.  I have heard of some studies that showed that participants who only hear the audio of mock testimonies outperformed those who had audio and visual for this very reason. 

    Two, forcing someone to forgo the veil will likely negatively effect the power of their testimony.  Since we know that anxiety is (falsely) typically seen as an indicator of lying, and it is fair to say that removing the veil in public would cause the woman anxiety, this ruling would diminish the effectiveness of her testimony as perceived by the jury.  We could delve into the reliability of testimony to begin with, but that is another topic for another day.

    • Chakolate

      But there are also studies that show that around 90% of our communication is nonverbal.  The words matter, but how they’re said and posture and general demeanor are even more important. 

      So if I can’t see you, I can’t take into account those things which a juror is entitled to take into account: demeanor. 

      • Kevin

        It doesn’t matter unless people are able to evaluate that data accurately.  I may be sending a lot of signals outward without words, but that doesn’t mean that anyone will be able to determine what those signals mean, especially when it comes to determining whether someone is telling the truth or not.  If people can’t use this to come to an accurate decision (which is the study I cited concluded), then this is the type of information that the legal system would consider prejudicial since it has not been shown to be reliable, yet people still perceive it to be reliable.

  • Sue Blue

    Meant to add “…where only the jury and judge sat.  Evidence would be presented on screens and the attorneys would only be neutral questioning voices off-screen.  Of course, this probably would never happen, because we love our legal theatrics.   It’s not about fairness or justice – it’s about popularity.  It’s funny how more attractive people – whether they’re good-looking, well-known, wealthy, or charismatic – always seem to come off better in court.  Lawyers who are theatrical seem to win more cases than lawyers who merely appeal to evidence and logic.   Justice is supposed to be blind – why not cover everyone up completely?  Again….just the facts.

    • The Captain

      And how exactly would cross examinations work in this system???????????????

      • HA2

        In writing.

        • The Captain

          Do you have any idea how long a trial would take to do that? It would be a kafkaesque nightmare.

          • http://itsmyworldcanthasnotyours.blogspot.com/ Anonymous

            *snort* Like it isn’t already?

      • http://conuly.livejournal.com/ Uly

        Over the intercom, perhaps? With the witness behind a screen? For crying out loud, we have all sorts of modern technology allowing us to speak to people halfway around the world, you think we can’t figure out a courtroom?

  • http://www.facebook.com/profile.php?id=35702181 Christopher Check

    No problem with the veil as long as the accuser is not withholding their identity.  There’s a difference between obfuscating a physical characteristic, even a face, and obfuscating their name, etc.

    • Brian Macker

      How can you tell their name, because someone told you? How could they tell? If ten women testify in a trial how do you keep them straight in your mind if they are all in sacks?

  • Cheron22

    If the FSM cant write me a note saying it’s ok to wear a balaclava in the witness box then why should Muslims get to cover themselves. 

  • The Captain

    The general rules is (should be!) your rights end where another persons begins. So just as a public business can not discriminate against one religion (say Lowe’s stops hiring muslims for instance would be against the law because they decide it’s the christian thing to do or something) this woman’s rights to her religion end when she steps on the defendants right to see face his accuser. So yea, the veil comes off.

    Also for there to be an exception made for her, IS the government establishing a religion. Now it may not be a decree saying everyone has to pray to jesus, but it is sanctioning one (or multiple) religious beliefs over others. See anytime you have the government make an exception for a particular religious belief, you are in effect having the government define what religious beliefs can be. For instance, the people who are in support of this woman wearing a veil to “protect her religious freedom” I’m sure would not support a witness who held a religious belief that they must lie in court. I mean if someone says they interpret something in the bible (or whatever) to mean they have no obligation to tell the truth in court then if you really wanted to protect EVERYONE’s religious freedom, then you could not hold them in contempt for doing so. and if not, then what give YOU the right to determine what a religious belief is for someone else?

  • TheHonestAtheist

    How could it be proven that this witness always wears the niqab?  Should surveillance be employed?  Would THAT violate their privacy?  Or would we have to take their word at face value?

    The next step would be every witness claiming their religious practice demands them to wear a special veil, or special make-up, or face covering. 

    No, I’m afraid not.  The accused has the right to be confronted with the witnesses…and if this includes their testimony as a witness, facial expressions become a big part of that testimony. 

    • Anonymous

      It can’t – and it would probably be open to the defence to question it. If they knew, for example, the witness didn’t or hadn’t always worn the Niqab they could ask them things like ‘do you always wear/have you always worn the Niqab’. It would probably be supportable as relevant on the issue of credibility, and if the witness answered ‘I started wearing it yesterday’ it would probably hurt their credibility a great deal.

      • TheHonestAtheist

        The problem is that if the response of the witness was, ‘I started wearing it yesterday’…it would then still be protected as a “religions freedom”, right? 

        • Anonymous

          It might, but my point was that it would more than likely undermine the credibility of their testimony.

          Judges and Juries are rightly suspect of the ‘sudden religious conversion’, particularly when it seems overly convenient.

    • Donalbain

      But they should not be a part of that testimony. Despite what you might think from watching Lie To Me, you can’t usually tell if someone is lying or honest by looking at them.

  • Pustulio

    I’m not sure I understand the problem. There are plenty of examples of cases where the accuser remains anonymous. Surely in those cases they don’t have to testify in open court? I don’t believe that the right “to confront one’s accusers” necessarily means the right to look them in the face.

    • Anonymous

      There’s a difference between things like publication bans and not having the accuser testify.

      In the particular Canadian case referenced (R. v. N.S.) there is a publication ban in place in respect of the accusers identity (she’s referred to only as ‘N.S.’, both in the criminal action and the subsequent Niqab case, and it is an offence to publish her identity). But she must definitely testify at trial and be available for cross-examination.

  • Anonymous

    There is a right not to be deprived of liberty except in accordance with the principles of fundamental justice, and one of the recognized principles is the right to test the case against you. It’s not quite as explicit as the right to ‘face down your accuser’ recognized in the U.S. constitution, but the effect is similar.

    The credibility of witnesses, particularly in a criminal trial, is hugely important. The trier of fact (be it judge or jury) needs to be able to assess the credibility of the witness. It is rare that evidence is accepted without the opportunity for fulsome cross examination for exactly that reason. In order to succeed, the prosecution must strictly prove all elements of its case beyond a reasonable doubt, and one way to raise some doubt is to call into question the credibility of a key witness. Attacks on the character of that witness are absolutely fair ball – with some exceptions (particularly in sexual assault cases, where the law prevents the defence from bringing forward certain types of character evidence – such as the complainant’s past sexual history). It is important, both for the trier of fact and the examining lawyer, to be able to tell when a witness seems evasive or uncomfortable with a line of questioning.

    That said, there are situations where Canadian courts will accomodate a person in giving testimony. Those who can’t speak, or can’t speak the language, can be allowed to give their evidence in writing, or through an interpreter. These guarantees exist both in our constitution and in various statutes governing evidence at trial. I’ve heard some advocates complain that these situations undermine their ability to cross-examine. It is difficult to judge a person’s credibility when they give their answer in a language you don’t understand. It’s also difficult to ensure that the interpreter themselves is not changing the nature of the question, or cleaning up the answer. Prosecutors don’t always like dealing with these ‘filters’ between them and the witness – but they do deal with them from time to time, and the veil would be similar. The obvious difference, of course, is that when you get right down to it, a Chinese person can’t decide to be english one day, a mute can’t decide to speak, and a deaf person can’t suddenly hear. The veiled witness can remove the veil – it’s a technicality, and when you get right down to it there’s no good reason it should be allowed to impede justice. The truth is that most people intrinsically ‘get’ that – even if they won’t say so because religious choices are socially unasailable.

    Still (and although I don’t do criminal work myself), if I put myself in the shoes of a prosecutor bringing a veiled accuser to the stand, I’m probably not thinking it helps me. In fact, I think it’s more than likely to cut the other way.

    A judge or jury watching a witness give evidence while wearing a mask – even without succumbing to religious stereotypes – is bound to doubt the credibility of that evidence from the get go. What’s more, victims tend to generate sympathy that assists the prosecution’s case – but it comes from the emotion they can convey on the stand, which is significantly hampered where we can’t see the persons face. Finally, there’s that intrinsic understanding – what juror or judge isn’t going to ask themselves ‘why didn’t you take off your mask? Is it not serious? Not imp0rtant enough to you?’

    One thing that definitely has to be recognized here, though, is that when this issue comes up – what we are almost always talking about are cases of domestic and sexual assault. These crimes are already drastically underreported, particularly in some communities – mostly because the accuser fears (often legitimately) that they will be doubted, had their story attacked, and generally be given a rough ride by the justice system. For a young woman, the prospect of having to to ‘face down’ one’s rapist is a significant hurdle to getting convictions for sexual offences. Telling that young woman that they will need to violate their religious strictures to do it is another hurdle, particularly where it has the potential to make them a pariah in their community. This is a policy concern that has to be considered carefully, as leaving it to the judge to decide on a balancing test is unsatisfying. Telling this young woman she may be compelled to remove her veil may be enough to scare her off a legitimate complaint. Many defence lawyers will push hard for it if they think there’s a chance the complaint will be withdrawn.

    • Placibo Domingo

      Excellent response. Thanks!

    • Anonymous

      i agree with most of what you said, but let’s look at the other considerations the law makes for other hidden faces. children in pedophile cases who are allowed to testify from another room over closed camera. burn victims who can’t take off bandages for fairly long time. what about religious guys who cover their faces in loads of hair and hats and glasses and stuff? if they were accused, they could completely change their look shaving all that off. 

      to me this is about controlling women, more than about justice. i’d like to believe that a judge would force a xtian woman to remove her veil too if that were one of their traditions, but i don’t. the body of the muslim woman has become subject to extra, discriminatory social and state practices, from all sides. it’s tiresome. 

      • Anonymous

        There’s a special provision for child witnesses in the Criminal Code of Canada (s. 486.2 (1))which allows, in some limited circumstances, for a child witness (under the age of 18) to give evidence by closed circuit camera or from behind a screen so that they don’t have to see the accused. There is discretion for a judge to use this procedure on application of the prosecutor.

        The goal of this provision is actually to preserve the integrity of the evidence – including the unbiased reactions and general demeanor of the witness. It’s generally intended for situations where the presence of the accused may unduly influence a material child witness – i.e. situations where the accused is a person in authority or who has undue influence over the child (such as a parent).

        In the case of R. v. Levogiannis (‘R.’ in Canadian criminal cases stands for ‘The Queen’ – used much like ‘state v.’ or ‘the people v.’ in U.S. cases) the Supreme Court of Canada dealt with the predecessor provision of this section and found that there was no right in Canada to ‘face one’s accuser’ in the strict sense, and that the point of the section was to get at the truth by allowing a child to testify free from the ‘intimidating gaze of the accused’.

        Important to consider for this conversation is the next section (s. 486.2(2)) which explicitly states that the trier of fact (judge or jury, as the case may be) and the accused must be able to observe the witness as they give testimony.

        So the jury, judge, and lawyer for the defence still get to see the witness. Even the accused is, by law, allowed to observe the witness. The witness will also be able to see the judge, jury, and questioning lawyer as well. For practical purposes it’s likely to be the accused who leaves the room and watches the proceedings by CCTV.

        The point of these provisions is to preserve the witnesses reactions and make sure the trier of fact has the opportunity to observe the witness without undue influence from the accused.

      • WhatPaleBlueDot

        This.

        Think about a Muslim woman who has been raped.  She may already be breaking social mores to come forward.  And then you want to expose her body again?  So you can be sure, based on your personal and cultural norms, that she’s being honest?  And you’re going to judge this based on how comfortable she seems with what she’s saying?  Really?  Raise it to if she’s accusing her husband.  

        I don’t think this is necessary.  I really don’t.  We just need to create a new way to judge honesty.  And, frankly, looking at someone’s face and seeing how they make you feel isn’t very good evidence.  We can do this better without victimizing women.

  • Not Guilty

    you need to be careful about appyling US law to Canadian cases. the canadian supreme court (scc) limits every right in accordance with the Charter; every right has a reasonable limit. that is very different from the scotus approach.

    second, you fail to consider the instances where thecourt allows a witness to testify from amother room or from behind a screen. often it is kids, but not always. to make this issue entirely about religion is a little disengenious.

    • Anonymous

      When they were hearing evidence on this case, the Justice Fish (Supreme Court of Canada) noted that there’s ‘not a single defence lawyer who would assent to having a witness testify against their client unless they were clearly visible.’

  • Reuben Kellen

    An informal poll of the other lawyers at my firm shows that facial expressions rank pretty low on the list of things to note while direct or cross examining a witness. The content is orders of magnitude more important. There is also a whole host of reasons why someone might have difficulty reading the expressions of a witness; maybe their face is disfigured by illness or injury, maybe they never make eye contact due to blindness, maybe they have had so many facelifts and botox injections that their expression is more-or-less locked in place. We would not deny any of those people the opportunity to present their evidence, nor would we force them into a position that makes them feel uncomfortable and as though their personal integrity were compromised. It is just as improper to treat a Muslim woman an that way, regardless of the fact that we disapprove of her reasons for wearing a veil.

    • Dawn0293

      You are conflating physical features with garments, that’s apples and oranges.

      • Reuben Kellen

        If you prefer, consider then a person wearing bandages while some manner of facial injury (that would not in itself radically alter their facial expressiveness) heals. You could even imagine that the bandages are not necessary for the healing process but are simply there to hide stitches and bruising. I do not think it would be right to force that person to remove their bandages, and would worry that doing so might simply result in that person refusing to testify. Nor would it be proper to postpone the testimony until the wounds heal, as that is inconsistent with the right to a speedy trial.

        • Placibo Domingo

          Damn. That’s a tough argument to counter.  And this brings up such an interesting can of worms to consider whether trials would be more fair and impartial if all witnesses were not seen, and not judged on irrelevant characteristics.

  • Dawn0293

    I believe body language can at times, offer visual clues about the veracity of a claim. I say they keep it off. It’s not required by their religion anyhow so they can manage to do a little less and simply wear a hijab instead while remaining pious as it is permitted by their religion.

    • Donalbain

      If you believe that, then surely the best thing to do would be to somehow to study the question and see if facial expressions were a reliable test of honesty.

  • Steve Bowen

    Personally I would not engage with someone who hid their face in the public sphere. However if I was the accused in a court of law there could be several ways in which I was prevented from seeing a witness, and possibly with good reason (hypothetically you understand). On balance if there was no witness safety issue, I think I would be justified in expecting the veil to be removed. Anyway, the niqab is not a religious mandate it’s a cultural one.

  • http://twitter.com/gry9 Gordon Reid

    I can picture myself as a member of a jury where one of the witnesses presents themselves with a covered face for religious reasons.  My first hope would be that the judge would not permit testimony by a witness with a covered face.  But given such testimony was permitted and the witness presented herself in a religious form, I would likely include her religion as part of the testimony.  Her religion specifies that her testimony is worth only half the testimony of any male witness, and thus, she is presenting herself to the court on this religious basis so I would grant her the half value witness that she ascribes as the correct weight for her testimony.

    • http://twitter.com/e__clare Emileigh Clare

      We’re atheists for a reason. Just because religion dictates something absolutely ridiculous doesn’t mean we should go along with it and not treat women (even if they cover their face) fairly. Use logic.

    • http://hauntedtimber.wordpress.com timberwraith

      Yes, it is important that we teach Muslim women a lesson by compounding the misogyny they already experience at the hands of their culture/religion. Perhaps we should also stone Muslim women when people discover they have been adulterous or have a child out of wedlock? If you really want to subject women to the woman-hating aspects of their religion/culture of origin, why go half way? I’m certain you’ll have droves of Muslim women converting to atheism by the thousands.  Good plan.

  • Anonymous

    I don’t like that the judge seems to think he can pick a liar by her face, in the first place. Particularly with a woman who never shows her face in public. Can we assume that she has expressive habits that line up with the judge’s preconceptions of what sincerity looks like?

    Also, putting myself in the situation, and thinking about how I’d act and feel if made to expose parts of my body I’m not used to exposing, say, being forced to testify bare-chested, I’d feel pretty naked and uncomfortable, and in my discomfort, would probably look a lot like a liar.

    So no, I wouldn’t have her expose her face, but her opposition may also cover their own faces.

    • Guest

      This is exactly what I was thinking. If she generally goes around with her face covered in public, then being forced to remove it is essentially the same as being forced to wear revealing clothing in public. Being forced to expose parts of your body that you are not comfortable exposing in court would have a chilling effect on people being able to bring suit in the first place.

      If we’re so concerned about body language during testimony, then maybe we should hook people up to stress detectors!

    • Anonymous

      Imagine a sexual assault case where the only triable issue was whether there was valid consent.

      The complainant says the accused forced himself on her. The accused says she consented at the time, but later claimed she’d been assaulted because she was worried about how she’d be perceived in her community.

      This is a situation where, as a defence lawyer, I want to have the witnesses face uncovered. Her credibility is the whole case.

      If that doesn’t sell you – ask yourself what you would think if you were the accused in this scenario, facing Federal prison time, and you knew you were innocent.

      • Anonymous

        I understand that this is something a defense lawyer might want, but is there evidence that judges and juries can reliably spot a lie based on facial expression? Just because something makes us feel more confident, it doesn’t mean it actually makes us more accurate.

  • http://www.facebook.com/jadelackey Jade Lackey

    I think of it this ay in most cases the accuser is the victim , so why let the defendant put them thru more grief while in trial. As for witnesses making them unveil would lead to less witnesses willing to come forward with information. Freedom of religion goes for all and lack there of, I say let them stay veiled.  

    • Sulris Campbell

      while i agree she should have been allowed to wear a veil i worry that everyone in the future will chose to do so, you know like poker players that wear hats and large dark sunglasses.

  • http://friendlyatheist.com Richard Wade

    I remember long ago a psychology experiment where people gave what they thought were moderately painful electric shocks to a person strapped in a chair by pushing a button when the person did not answer general knowledge questions correctly, or not quickly enough.  In actuality, the person was an actor or actress receiving a barely perceptible shock, and convincingly acting as if it was moderately painful.  All the questioners could see the person in the chair,  but one group of questioners could be seen by the person in the chair, and another other group could not be seen. 

    Those whose faces not could be seen by the person receiving the “painful shock,” were much more likely to press the button, and they gave the person much less time to answer.

    It seems that being faceless gives us more social permission and comfort in causing hurt to to others.  I’ve certainly seen that in interactions on blogs.

    I don’t know if this has any bearing on the veracity or perceived veracity of a veiled witness, or on the fairness of such a thing in a trial, but it is an interesting aspect to how face-to-face cues affect how we relate to each other.

    • http://conuly.livejournal.com/ Uly

      Did this experiment draw from a group of people who were habitually veiled? Might those people react differently to having their faces unseen, say, if their voices could be recognized?

      • http://friendlyatheist.com Richard Wade

        I believe the experiment was in the early 1960′s, and things like that often used university students, but I’m not sure. Back then, there were very few Muslims in the U.S., So it’s not likely the subjects were accustomed to any kind of concealment in their daily activities. I think something like a two-way mirror was used for the concealed group. I’m assuming that the person in the chair did not know any of the questioners, because as you say, recognizing their voice would remove the anonymity, even though they would not have to show their face to the friend they thought they were hurting.

        • http://conuly.livejournal.com/ Uly

          So basically a lot more research is needed for more situations?

          • ara

            the research in question is known as the Milgram experiment.  Experimentation like this has since become highly controversial.  Given contemporary human study review boards (hsrb/iirb) your claim for “more research is needed” is a non-starter.

            • Anonymous

              I don’t think this is Milgram. Milgram’s primary measure was the magnitude of shock participants used after the ‘learner’ withdrew his consent to participate. 

              Also, it’s not that hard to study the same thing without IRBs blocking it. The big problem with Milgram’s study is that he made participants think they might have killed someone, and had misled them about the content of the experiment. Simply administering mild shock doesn’t cause the kind of stress as thinking you just gave a guy a heart attack. There are also a multitude of mean things you can get participants to do – make each other eat lots of hot sauce, drink vinegar, cheat them out of money, etc. It just requires some creativity. :)

    • Heisenberg

      Ah, yes! I was honestly thinking, with as whack as many Americans are about Muslims, would she not be inclined to try to leave her religion out of it? I hate to say that because it’s a terrible reality but…hrm?

    • Anonymous

      If I’m not mistaken, a similar paradigm has also been used to show that participants were less apt to shock another person while dressed in a nurse uniform, suggesting that people tend to behave consistently with the way they outwardly present themselves. As long as this woman associates her religion with moral behavior, it seems to me that she’d be likely to act accordingly when presenting herself as overtly Muslim.

      Also, this woman isn’t anonymous or in another room. She’s only got some of her face covered. Everyone can still make direct eye contact with her, which I think is probably all it takes to feel visible and accountable.

    • Anonymous

      This is why I think, if I were a prosecutor, I might not want my witness to be veiled. The Judge or Jury is much less likely to empathise with her if they can’t see her face, which would be particularly important where the witness was the victim of an alleged crime.

  • Will

    It occurs to me that a witness wearing any kind of face-covering is probably hurting his or her own case.  Masked individuals come off as sinister and secretive.  It’s not for nothing that villains in popular media cover their faces.  And before the inevitable backlash occurs, yes, I realize that the wearing of the niqab is imposed upon women by men and that Islam is a peaceful religion full of trustworthy individuals, etc, etc, etc – but that isn’t the point.  In the US, we’re taught from a young age, by the media, that masked characters are almost invariably untrustworthy badguys.

    If somebody wants to provide testimony in a court of law while under a hood, that’s fine, but they would do well to understand that they are stacking the odds against themselves.

  • Ben

    There was a case here in Australia where a Muslim woman was pulled over for a traffic offence and was asked to remove her veil for the police officer so he could check it against her licence. She refused for “religious” reasons and was charged.

    When it came to paying the fine she later claimed it was not her and that they could not prove it was her. It went to court, and the court ruled that her identity (or rather the identity of the driver) could not be proven because she never showed her face. The law was later changed so that muslim women would be required to show their faces when pulled over by a police officer. The subsequent shitstorm of claims that Australia was oppressing/attacking/targeting muslim women was ridiculous. 

    Here’s the crux of my point: proving your identity is a HUGE part of secular laws. You must be who you say you are so your innocence, guilt, or testimony can be judged. If those judging you cannot be 100% certain of your identity, then the whole concept falls down in a heap. When one woman in a niqab looks just like another woman in a niqab, who’s to say one isn’t masquerading as another? Even just claiming it is enough to get off a charge as that case proved.

    Religion MUST adhere to secular law above their own, not the other way around. If that requires a woman to show her face under certain circumstances, like testifying in court, then that is what is required, religion be damned (so to speak).

    If you’re not happy to give religion exemptions to laws the rest of must follow other times, why for this?

    • HA2

      Being unveiled when testifying in court goes far above and beyond being identified, though.  A requirement to remove the veil for identification purposes – that, to me, is a no-brainer. Obvious. I agree with that law; I suppose I would prefer a compromise with fingerprints or something being taken as alternate identification, but that sounds like too much of a hassle, so oh well.

      Being required to appear in veil-less in public, for the duration of a hearing, though? Why is that necessary? A positive identification only requires a being unveiled with one police officer present. Or one representative from the defense and one from the prosecution, if need be. I think this discussion isn’t about identification.

      • Anonymous

        It does go above and beyond. It’s even MORE important she not be veiled. 

        The jury is passing judgement on someone’s guilt or innocence, perhaps for something very serious indeed. The testimony is crucial to this. How can they determine whether the witness seems credible, whether they seem truthful, if they can’t even see them? 

        A large part of cross-examination, determining whether the witness is trustworthy, is gauging their reactions, their temprament, their demeaner. If they are hiding in a sack, how can the jury see this?

    • Anonymous

      In Canada we’ve run into quite a few situations where identity becomes an issue. The answer has usually been a procedure where the person is allowed to confirm their identity in a private place.

      The government actor (police, election officials, etc.) is typically required to accomodate the person to the extent that it’s reasonable to do so. So if they can’t take off their veil in public – take them somewhere that’s private.

      But if reasonable accomodation doesn’t work, the legal requirement will win out.

  • http://hauntedtimber.wordpress.com timberwraith

    I don’t know about Canada, but the level of prejudice against Muslims in the US is pretty high. I’m betting that a lot of jurors would find a Muslim woman’s testimony suspect simply because a face covering would allow them to easily identify her as Muslim. Consequently, I think it’s ironic that we are talking about the reliability of a witness because of a veil when simple religion-based prejudice will bring her testimony into question.

    I mean, could y’all imagine what it would be like to testify in court if everyone in the courtroom could (easily) visually identify you as atheist? Could you imagine doing this while living in a religiously conservative part of the country? How often would people discount your words simply because of your belief system?

  • Anonymous

    Side note to this that isn’t making it into a lot of the stories – N.S (the muslim woman at the centre of all this) has actually said she’s willing to remove her veil to testify if that’s the court’s decision.

  • Sue Blue

    Of course what I suggested is not really practical.  I was trying to illustrate a point about how we do not really decide a case based solely on facts, nor is our justice truly blind.  Even as atheists who think our world view is based on evidence we actually interpret the actions and intent of others based largely on inference.  Neurologically, we are hardwired to recognize faces and determine meaning and intent based on expressions and body language.  It would be almost impossible to deny “gut feelings” and “hunches”, in favor of nothing but evidence, but we can still try.

    These are difficult questions.  We really do tend to judge books by their covers.  We see a man wearing a yarmulka and we think “he’s a Jew.”  How we respond to him is based on our personal opinions, experiences with Jewish people, etc..  It’s the same with any cultural dress.  It takes more than an acquaintance to get past personal and cultural biases and see that person as an more than just a representation of a religion or culture.   I don’t think it’s just a question of being able to identify a plaintiff or defendant.  That can be done by other means.  We can also listen to the person’s voice, tone, and word choices when trying to infer their honesty or intentions.   When we start telling people how to dress we get into some thorny issues.  Attorneys tell rape victims to wear modest clothing in court because too many jurors as well as attorneys and judges still think the woman “asked for it” if she wears revealing clothes.   Telling people to change their usual manner of dress in order to sway opinions in court strikes me as dishonest and pandering.  

  • Erik Cameron

    Canada recently prevented women from wearing veils during some sort of immigration ceremony (swearing an oath or pledging something to the country or something silly like that).
    I’m usually against preventing women from wearing religious headdresses in these situations because it usually doesn’t cause much trouble. Most people, even liberals, tend to fall on the ‘if you’re going to move to our country you follow our rules’ argument. I don’t find it convincing and feel bad for women who have been taught their whole life that letting others see your head is shameful.

    • Erp

      Given that a fair number of Canadian judges are female, the obvious option is to allow the women who wear veils to take their oaths/affirmation of citizenship in an all female courtroom (Islam even in its most odious form only requires the veil when non-related adult males are present). 

      Note also that once they have the protection of Canadian citizenship, they face less risk of being forced back to their original country; a fear that might prevent some from rebelling before gaining citizenship.

  • http://twitter.com/TominousTone Tom Lawson

    Being that they’ve allowed videotaped testimony in court, which could be visually altered in this day and age, I don’t think that appearances matter all that much. It’s the testimony that is taken down by the stenographer, not the appearance of the person, and it is that written testimony that is used for perjury charges later, not facial expressions.

  • http://www.facebook.com/profile.php?id=649813048 Nicoline Smits

    And why, exactly, do we need to accommodate all these religious superstitions?
    If the lady in question refuses to take of her veil even for something that is apparently so important to her that she’s willing to go to court for it, then perhaps her claim ought to be dismissed.
    Just recently, the White House had to go through a whole bunch of religious hoopla, just to make sure the WH kitchen followed Bronze Age dietary rules (http://www.nytimes.com/2011/12/14/dining/making-the-white-house-kitchen-kosher-for-a-party.html). FSM only knows what’s supposed to happen when the president invites people who have to eat kosher as well as those who have to eat hallal. I guess they’ll both have to come in and do their hocus pocus and the WH kitchen staff will have to keep them separated so they don’t get into some kind of religious dietary war right then and there.
    I’m reminded of a ca. 1960 book on etiquette. With respect to following diets when invited to dinner at someone else’s house or a restaurant, it is rude to insist on following dietary peculiarities. You simply eat whatever the host serves. If you are too infirm even to allow a single lapse, you must not accept dinner invitations.
    If the lady wants to take advantage of a western legal system, she’ll have to play by western rules. If she prefers to have her case adjudicated by mullahs or whatever they have in her home country, where she probably can’t testify at all based on her sex, more power to her. But we don’t have to pander to each and every superstition.

  • Illustr8r711

    “when a government actor (here, the court), orders someone to violate one
    of the tenets of their religion, there had better be an awfully good
    reason.”

    If there’s a good enough reason to force non-muslim women to be exposed while giving testimony under oath then that should be reason enough. If not then let everybody have the option to cover themselves.

  • Dan W

     My problem with someone testifying in court in a veil is that without seeing their face, you can’t be sure that the person is who they should be or not. It could be a friend or relative under the veil using someone else’s ID, and not the witness or the accused or whatever. In the courts especially, I’m against women wearing the veil for that reason alone- you can’t be sure that a women in a veil is who she says she is without seeing her face.

  • Greg

    Maybe I’m missing the point here, but the answer seems obvious to me:

    If you allow someone to do something because of their religion, then you must allow people who don’t follow that religion to do the same thing too, otherwise you are automatically endorsing it.

    So, if the court allows her to wear a veil, it should allow anyone who so chooses to also wear a mask. If they aren’t willing to do that, then don’t let her wear the veil. That way, everyone is treated equally.

    People who are talking about other people being anonymous and equating it to the veil are missing the point. The other people aren’t anonymous because of their religion, but rather for other reasons which a Muslim woman doesn’t have (necessarily, obviously).

  • Anonymous

    Does it pass the Mickey Mouse test?  That is where a secular alternative to the veil is used to illustrate the point.

    If for some insane reason I decided to wear a Mickey Mouse mask when in public I could reasonably expect to be asked to remove it when at the airport in in a bank.  Is this a situation where the Mickey Mouse mask should be removed. If I am accusing someone of a crime then the principle of the law is that they get to look me in the eye while I lay out their crime.  They can’t do that when I’m wearing my Mickey Mouse mask.  The judge can’t see me blush when I lie.  The jury can’t see me chew on my lip or roll my eyes.

    Normally there is no reason to strip me of my Mickey Mouse mask but there must be exceptions and proof of identity is one.

  • Anonymous

    Something else that’s come up here in Canada – something Katherine or others here might want to weigh in on.

    The government recently changed the rules so that prospective citizens must remove all face coverings when reciting the oath or citizenship at their citizenship ceremony.

    The citizenship ceremony is the culmination of a usually arduous process of gaining Canadian citizenship that requires years of background checks, the satisfaction of a variety of criteria, etc. etc.

    The taking of the actual oath is required by the law, and is presided over by a judge…but it’s really more ceremonial than anything.

    The government’s new rule is based on the idea that you need to be able to physically see the persons involved say the words, or you don’t know if they actually said them.

    Is forcing people (…and by ‘people’ we’re referring almost exclusively to ‘muslim women’) to remove their veils in this circumstance justified?

    • Anonymous

      I became a Canadian citizen a couple of years ago. The process took about 18 months from the time I filed my application. The taking of the oath is not treated as ceremonial. It’s a pretty solemn occasion even when (as in my case) there were about sixty other people taking it at the same time. You receive your certificate of citizenship along with a pamphlet about rights and responsibilities of citizenship. It felt like a big deal to me.

      • Anonymous

        It is a big deal – and don’t get me wrong, I don’t want to take anything away from it.

        But as solemn as a ceremony might be, how would you feel if someone came along and questioned your citizenship because they hadn’t actually seen you say the words?

        When I was called to the bar, there was some confusion over the oath we had to take. It was presided over by a judge, but the oath was ‘administered’ by another person who must have been nervous – he read it so fast that none of us could follow along or have the opportunity to repeat the words ourselves, and when he finished he never prompted us to agree. Long story short – none of us actually recited the oath, or even verbally acknowledged our agreement with its substance.

        I know if someone came along and said I had to imediately stop practicing because I’d never properly taken the oath, I’d laugh and tell them to get lost. Being called to the bar was still a big deal – but the point of the ceremony, any ceremony, is really to reinforce the gravity of the accomplishment. Oaths are part of that – but there’s no magic in the words.

  • Anonymous

    Here’s a great opinion piece by the always thoughtful and articulate columnist Dan Gardner (http://www.dangardner.ca):

    ‘See The Veil For What It Is’
    http://www.ottawacitizen.com/opinion/veil+what/5853644/story.html

  • Scott Garrett

    To be more accurate/fair, the covering of the face is more a ‘modesty’ thing than a religious thing. For the same Puritanical remainders that women must keep their chests covered in public, the hard-line Muslim rules dictate that more has to be covered. The fact that the religion dictates it doesn’t make it exclusively a religious affectation; it becomes de facto a personal and cultural one. My understanding is that it has its roots in the belief that men can’t control themselves, and that women must cover to control the men. Some might say this is also why we can’t see Janet Jackson exposed on TV as well. The amount of that coverage may have cultural and religious roots, but it also changes over time; a bathing suit from the 1900s is NOT the same as one from the 1970s.

    While I may be off on this one, I believe your right to face your accuser is simply the ability to adaptively cross-examine them. Whether they’re physically in-court, or covered isn’t in question.  What IS in question is the ability to ask them questions. For this reason, signed and notarized affidavits are of questionable use in court.

  • Scott Garrett

    Additional thought: there have been plenty of “mob-trials” where the witness is completely behind a wall or shield. Does THAT also deny the defendant a right to “see” their accuser?

    • Anonymous

      Citation, please? I don’t think there have been “plenty” of these.

  • Insightfill

    To be more accurate/fair, the covering
    of the face is more a ‘modesty’ thing than a religious thing. For the same
    Puritanical remainders that women must keep their chests covered in public, the
    hard-line Muslim rules dictate that more has to be covered. The fact that the
    religion dictates it doesn’t make it exclusively a religious affectation; it
    becomes de facto a personal and cultural one. My understanding is that it has
    its roots in the belief that men can’t control themselves, and that women must
    cover to control the men. Some might say this is also why we can’t see Janet
    Jackson exposed on TV as well. The amount of that coverage may have cultural
    and religious roots, but it also changes over time; a bathing suit from the
    1900s is NOT the same as one from the 1970s.

    While I may be off on this one, I believe your right to face your accuser is
    simply the ability to adaptively cross-examine them. Whether they’re physically
    in-court, or covered isn’t in question.  What IS in question is the
    ability to ask them questions. For this reason, signed and notarized affidavits
    are of questionable use in court.

    Also: there have been many “Mob” trials where the witness is kept behind a shield and even has their voice altered. I’m not positive on this one: does the defendant get to see and hear the witness unaltered?

     

  • JeseC

    As a practical concern, I would be worried at how a provision like this would affect female muslim crime victims.  In a small claims case, this may not seem like a big deal…but what happens when the woman is a victim of an attack?  Domestic violence?  Would it be different if a woman was forced to remove her veil before testifying in a rape case?  Maybe we think it’s silly, but do we want to force a potential victim to give up something that is probably very important to her in order to get justice?  Even if it means that some of these women might not otherwise seek justice?
    IIRC, there are set-ups already in some places to allow an (adult) accuser in rape or domestic violence to not have to directly face the accused perpetrator.  Mind, that is in the US and not Canada.  The legal systems are a bit different.

    For that matter, there’s some pretty strong arguments that the court system might benefit from generally not being able to see the different people.  It’s been well established that racism and sexism affect juries to a far greater extent than most people think.

    • Anonymous

      Under-reporting of sexual assault is a massive issue – particularly where women may face pressure or stigma in their communities. Telling a muslim victim she may have to remove her veil to testify is another potential barrier. It’s probably why a ‘one size fits all’ solution to this problem doesn’t make policy sense.

  • publicmeanspublic

    It says you may CONFRONT your accuser, not FACE your accuser. Even if it is over the phone, you are still “confronting them” as they are making themselves known, in open court, who they are and that they are accusing you.


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