Wednesday, February 04, 2009

Confrontation and the Niqab

I was interviewed yesterday on a Canadian Broadcasting Corporation radio program, The Current, about a pending case in which a Moslem woman, the complainant in a sexual assault case, wishes to testify while wearing a niqab – a covering that obscures most of her head but leaves her eyes visible. (You can find out more about the case and a link that will allow you to listen to the broadcast – I'm on for just a few minutes at the end – by clicking here.) The issue is an interesting one. As I understand it, for this woman at least there isn't an absolute religious command to wear the niqab at all times, but it is clear that she wears it as a matter of her longstanding and consistent religious practice. I am inclined to believe that she should be allowed to testify while wearing the niqab.

So far as the trier of fact's ability to judge her demeanor is concerned, I think there is not really a serious issue. First, ability of the trier to observe demeanor has never been deemed absolutely esssential; traditionally, if the witness is unavailable, a deposition transcript may be read. Second, the ability of the trier to determine credibility by observing demeanor is often over-estimated; people really aren't very good at it. Third, the trier does have a chance to observe numerous demeanor clues – body language, eyes, and voice. (If the eyes are not visible to the trier because of the niqab, presumably some kind of projection of her image could be used.)

The aspect of confrontation that is essential is the presence of the accused with the witness when she gives her testimony. (I'm going to put to the side the rule of Maryland v. Craig, which allows a child witness to testify in a separate room, electronically hooked up to the courtroom, if trauma seems likely. Perhaps an American court would draw on Craig to make allowances in this situation. But Craig is of doubtful continuing vitality after Crawford; I don't know the Canadian practice.) But here, too, I don't think the impairment is substantial. The witness can still look the accused in the eye when she gives her testimony; presumably her view is unobstructed, and if his presence carries with it a reminder of her obligation to tell the truth I don't believe the niqab lessens that message. And he can see her eyes and hear her voice. I think he's getting an opportunity to be confronted with her.

What if other complainants, without a religious basis, sought to testify wearing a niqab, saying it made them feel more comfortable? I still doubt there's a violation of the confrontation right, but I think the court should probably say, "Sorry, you have to testify the way we say you do it."

Interesting problem. I welcome comments, and mentions of other cases raising the issue. (I know of one American case, a civil small-claims case from Michigan, in which the judge did not allow the plaintiff to testify while wearing the niqab. Silly, in my view.)


Mackenzie said...

I'm interested in your comment that Craig is of dubious continuing vitality post-Crawford. I don't know of any circuit courts that have agreed, and at least one has explicitly disagreed. Perhaps you mean that Coy's validity is dubious, that is, face-to-face confrontation is no longer an essential part of the Clause?

For what it's worth, I think the Court, if it heard a case similar to Craig, would reaffirm the general idea, but perhaps tweak the mechanics. Maybe the trial court would have to make somewhat different findings. Obviously, it would have to find some other theoretical underpinning since Craig was founded so much on the "reliability" paradigm that's no longer in effect.

Of course, given the 5-4 split in Craig, who really knows what would happen today?

Richard D. Friedman said...

I meant two things: (1) Not surprisingly, the theory of Justice Scalia's majority opinion in Crawford bears a much closer resemblance to his dissent in Craig than it does to the opinion of the Craig majority, written by Justice O'Connor (who did not join the majority opinion in Crawford). As the comment indicates, the reliability paradigm under which Craig was decided is no longer in effect, and the categorical nature of Crawford may well be seen as not readily compatible with Craig.

(2) Scalia and Stevens dissented in Craig. Presumably they would vote to overrule it. Kennedy was with the majority; maybe he would stick to the same position, but maybe not, given that he bought into Crawford. Assuming the case came up today -- and up to now the Court has not seemed eager to revisit the issue, perhaps because there is no clear split below -- I think there is at least a plausible chance that a challenger to Craig could come up with at least three votes from among Roberts, Souter, Thomas, Ginsburg, Breyer, and Alito.

Richard Klibaner said...

Would your analysis differ under a state constitutional provision which literally requires that the witness confront the accused "face to face"? In Com. v. Amirault, 424 Mass. 618, 677 N.E.2d 652 (1997) the Mass. SJC held that this was violated by a seating arrangement in which the child witness faced the jury and not the defendant. The SJC held that this explicit language of the Mass. constitution provided rights beyond those which the Supreme Court in Craig held to be guaranteed by the 6th amendment's right to "confront."

Anonymous said...

Reliability is no longer relevant when analyzing the admissability of hearsay under the Confrontation Clause. But isn't the question of the visibility of a witness' face a different question? Crawford is based on the historical underpinnings of the Confrontation Clause. Can the history be stretched to reach face coverings? I highly doubt there is a historical basis for allowing, or not allowing, a woman to wear a naqib while testifying. At the time of the Founding, had any considation been paid to the actual mechanics of "face to face" confrontation?

Mackenzie said...

How about forfeiture by wrongdoing? I'm just thinking out loud here, but one could argue that if a child's fear or reluctance to testify arises as a result of the sexual abuse, the defendant has therefore forfeited the right of face-to-face confrontation.

Of course, there is a lot yet to be resolved concerning the mechanics of forfeiture by wrongdoing. I'm just wondering if it could encompass this situation.

Anonymous said...


The New Jersey Supreme Court just decided State v. Nyhammer, which deals with unavailability of a witness. An 11 year old girl is sexually molested. She gave a videotaped interview during which she was "reticent" and "not easily forthcoming." She was asked pointedly leading questions. Using drawings she indicated she was touched on the vagina and buttocks. She demonstrated how defendant had masturbated in her presence.

At trial she said she spoke to the detective who took her videotaped statement a long time ago, and would not give any details. She would not respond to a question asking her who she talked about. When she was asked if defendant touched her anywhere she did not respond. She would not respond to the question whether anyone ever touched her anywhere.

On cross counsel asked her whether she remembered speaking with the detective; she could not give details. Defense counsel then asked if she remembered the prosecutor asking her if the defendant had touched her. She said no. She was asked if she remembered telling the detective about anyone else touching her. She said no. The defendant objected to admitting her videotaped statement on the grounds that the witness was not available since she was not answering questions. The trial court admitted the videotaped statement of the 11 year old girl. Of course defendant was convicted.

The New Jersey Supreme Court affirmed, saying that defendant had had an opportunity to cross examine the girl but did not confront her on directly on her statements made on the videotape. Since defense counsel did not question her on these "core" issues he waived the right to appeal on the issue of lack of confrontation. Only if the girl had remained silent on the questions regarding the core issues could ther be a confrontation clause violation.

As defense counsel I don't want to get that close to the issue, but I don't want the videotape in evidence either. What do you think?

Mitch Ignatoff

Anonymous said...

A couple of points.

@Mackenzie. You wrote, "I'm just thinking out loud here, but one could argue that if a child's fear or reluctance to testify arises as a result of the sexual abuse."

I'm not sure exactly what you mean here as you are thinking out loud. If the defendant had been convicted of sexual abuse against this child and she was testifying against him on a related matter, I can see your logic working. But otherwise the abuse is *alleged* abuse. The logic quickly becomes circular as you assume what you seek to prove.

Back to the OP. The issue that I think is missing from this discussion is the issue authenticity. The defendant does not have to confront just any witness, he has the right to confront the witness against him. As someone who has experienced hijāb first hand, it can be very difficult to identify who is behind that veil unless you are intimately familiar with the person. Indeed, the very idea of the hijāb is to hide the woman from profane eyes to protect her modesty. But if someone is hidden, how can they be confronted? The idea that eyes and voice is enough to make the grade I find a very dubious statement. Voices can be mimicked; indeed, if you are not familiar with the person, a person from a specific country can sound much like another from that same country due to the influence of accents.

Of course, you are absolutely right about transcripts. But I don't think this issue is as cut and dry as you make it. For me, absent some compelling reason, if the person is going to testify in open court, the defendant has a right to visually (as well as aurally) confirm the identity of that person. Indeed, one of the reasons we hold trials in public is not only that the defendant gets to see the witness, but so does the public at large be able to identity the witness. This aspect just confounds the identity aspect even further.

The question is tricker than I think you give it credit for being. It is easy to say let the judge check her ID and move right along. But I think there are traditions to testifying in open court that should not be paltered with.

Anonymous said...

I myself believe in Confrontation Law, if i admit to a crime and mention another person being with me and my statement is used in court against me and the other person,and I was never placed on the stand (yet my statment made to police)was read more then 5 times, I think it is hear say.At trial even the I.D was hear say! no photo line up was done, this guy got 14-24 trial victim couldnt pick him out of a photo, it was based on hear say

Richard D. Friedman said...

I don't know enough about the case described in the most recently posted comment above to discuss it. Several of the other comments warrant a response, and I'm sorry to have been slow in getting to this; I will try within the next few days.

Khadijah said...

QUOTE: "As I understand it, for this woman at least there isn't an absolute religious command to wear the niqab at all times..."

Since no one individual speaks for all Muslims - Islam has no single central human authority, comparable to the pope and Vatican for the Roman Catholic Church, or to various General Assemblies and the Lambeth Conferences for the Anglican Communion. Rather, it is divided into many traditions and schools.

Taking this into consideration I think we need to accept that each Muslim woman in the US, including myself, is constitutionally allowed to interpret Qur'anic verses and Hadith(sayings and actions of prophet Muhammad(PBUH) that pertain to niqab/hijab to their own understanding.

All 4 major Schools of Thought are in agreement that niqab is required or highly recommended except when on hajj (the pilgrimage to Mecca.

There is seldom reason for anyone to see the faces of women.

Al-Ahzab 59. O prophet! tell thy wives and daughters, and the BELIEVING WOMEN, that they should cast their outer garments over their persons...."

In Al-Ahzab 59 it is obvious that Allah is not telling just Prophet Muhammad's (PBUH) wives to cover their faces.

Al-Noor 31 "And say to the believing women that they should lower their gaze and guard their modesty; that they should not display their BEAUTY and ornaments except what (ordinarily) appear thereof; that they should draw their veils over their bosoms and not display their beauty except to their husbands, their fathers, etc....."

In Al-Noor 31 Allah says, "they should not display their BEAUTY."
What is the most beautiful part of a woman? Her face. That is what draws the most attention.

For the first 1300 years of Islam it was the practice of all Muslim women to cover their face around non-related men, even in countries outside the Peninsula, including Egypt, India, Iraq, etc. Because of the different countries in which niqab was worn it is impossible to say that it was a cultural practice - it was an Islamic thing.

The practice of uncovering the face started in the Muslim World after colonization and before that the practice of all Muslim women in Islamic countries was to cover the face. After coloniztion the spirit of hijab was lost.

In this country, by the US Constituion, all people are free to practice their religion in the way THEY believe it should be practiced, regardless of weather it makes people of other religions (or even their own religion)feel uncomfortable.

Muslims don't try to get non-Muslim women to cover their hair or face, so why is it such a big deal to them when Muslim women do?