The niqab and the structure of the confrontation right

A few years ago, I posted a couple of messages on the issue of whether Muslim women should be allowed to testify while wearing a niqab, covering the face except for the eyes. One concerned a Canadian case, and the other commented on the adoption by the Supreme Court of Michigan of a rule, unfortunate in my view, meant to authorize trial judges to preclude witnesses from testifying while wearing the niqab. My former student Felix Chang has informed me about this link to a discussion on the public radio show The World of the Canadian case, which is now pending in the Supreme Court of Canada.

My feeling remains that a witness who has a conscientiously religious-based reason for wanting to testify while wearing the niqab ought to be allowed to (whether or not wearing the niqab is an actual religious command), but witnesses ought not to be allowed to testify under such a cover out of mere personal preference.

This highlights a broader issue of the framework of the confrontation right. In some respects, as Crawford indicates, the right is categorical, but in other respects, even after Crawford, it is flexible, subject to balancing.

An accused has an absolute right to be confronted with an adverse witness. Assuming the accused has not forfeited the confrontation right, if admitting a statement would amount to allowing the witness to testify against the accused, then it may not be admitted absent an opportunity for confrontation – and it does not matter how expensive or difficult it would be to bring the witness in or how important the testimony is to the prosecution or how little value it appears that confrontation would have. In these respects the right is absolute.

But if the witness has had an opportunity for confrontation, then the question of whether the witness has to be brought in to trial depends on a balance of numerous factors. How difficult or expensive would it be to bring the witness in? How important is the testimony? How significant is any information that the accused may have learned since the earlier examination and that would assist the accused in cross-examining at trial?

I also think that forfeiture involves various questions of balancing. For example, how much pressure should be considered sufficient intimidation to warrant a determination that the accused forfeited the right? Also, if, as I believe, in some cases the government has a responsibility to take reasonable conduct that might mitigate the problem created by potentially forfeiting conduct, then there will often be a question of balancing; for example, should the government have arranged for a deposition of a witness who lingered for a considerable time before dying of wounds inflicted by the accused?

Similarly, some aspects of what constitutes confrontation are absolute. Putting aside the case of children and the question of whether Maryland v. Craig survives Crawford, the accused has an absolute right (again, subject to forfeiture) to be in the same room as the witness when she gives her testimony. But how close is a matter of balancing. The extent of questioning allowed also must be a balance – for example, how long and how intrusive the examination may be.

And I don’t think the confrontation incorporates an absolute requirement that the witness wear clothing meeting the norm of any particular time and place. Bear in mind that the accused doesn’t have an absolute right for the trier of fact to observe the witness’s demeanor; transcripts of prior testimony have long been acceptable in cases of unavailability. I don’t believe a witness should be allowed to cover herself up simply for personal preference. But given a well-established practice based in religious belief, it seems to me like a pretty easy case.