Thursday, June 18, 2009

Michigan allows judges to bar witnesses wearing the niqab

Nothing today on Melendez-Diaz. But yesterday the Michigan Supreme Court again took an action of interest, though this one I regard as very unfortunate. By a 5-2 vote (with Chief Justice Kelly and Justice Hathaway dissenting) it promulgated an amendment to Michigan Rule of Evidence 611(b) so that the rule now reads:
(b) Appearance of Parties and Witnesses. The court shall exercise reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons.
Though the Rule does not so indicate on its face, it is motivated by a recent decision of a Michigan judge not to allow a plaintiff to testify while wearing a niqab, a garment worn by some Moslem women that covers the face except for the eyes. I have already summarized in a prior post the reasons why I bleieve this decision was a bad one. The new rule is not necessary to protect the confrontation right or to allow the trier of fact a fair opportunity to assess the credibility of the witness. It is particularly unforutnate for this state -- with a large Moslem population -- to be taking this step now.

Colin Miller has posted a very useful summary of caselaw on the question of court's control over the attire of witnesses. You can see it by clicking here.

Commentary against the amendment in the form in which it was proposed and eventually adopted was submitted by:

(1) the Michigan Civil Rights Commission, available here. I spoke before the Commission in opposition to the proposal.

(2) the ACLU of Michigan, on behalf of itself and numerous other organizations and a couple of indiivduals, including my colleague Doug Laycock. That commentary is available here.

Commentary in favor was submitted by:

(1) the Michigan District Judges Association, available here. The MDJA statement offers no explanation.

(2) an individual, James L. Rudolph, available here. (He says, "We cannot allow cultures of other countries to dictate how we run our court system." I agree with that; I don't think allowing a witness to testify in the dress style she favors on religious grounds threatens that result.).

(3) another individual, Timothy A. Baughman, an attorney, avialable here. He discusses cases in which witnesses have not been allowed to disguise their identity. I don't think those are particularly apposite.

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