Here is a truly tricky religious freedom issue. What do you do with a witness who, because of religious beliefs, insists on wearing something that covers her entire body and face other than the eyes. This is most often seen with Muslim women wearing what is called a "niqab." On the one hand, there are constitutional protections guaranteeing a criminal defendant a right to confront his accuser, not to mention judicial rules, based on common sense, that insists that the identity of a witness be revealed and that judges and juries are able to assess credibility through things such as facial expressions. On the other hand, why should a Muslim woman be required to violate her religion in order to participate in our legal system, especially if they are a party to a lawsuit.
As reported by CNN, Michigan has passed a rule giving judges the discretion to force a witness to remove such a head/face covering. As stated in the CNN article:
The order allows courts "reasonable control over the appearance of parties and witnesses" so as to "ensure that the demeanor of such persons may be observed and assessed by the fact-finder and ensure the accurate identification of such person."
As a lawyer, especially as a criminal defense attorney, I support both the rule and the reason for the rule. In our system, it is essential that I am able to confirm the identity of the witness. Indeed, it is constitutionally mandated that a criminally accused defendant have the right to confront a witness. Concealment of the identity of a witness is rare, and only available where the confidentiality of the witness is essential, such as with certain undercover agents in ongoing investigations. Just as important, whether in a civil or criminal lawsuit, the parties, judges and juries, have a right to assess the credibility of the witness. To know whether a witness is telling the truth or lying is often revealed in facial expressions. Are they smiling, angry, nervous? This is all hidden by the niqab.
On the other hand there is the issue of religious freedom. A rule requiring the removal of a niqab could have the affect of limiting the access of Muslim women to our justice system. It does not take much to imagine a Muslim victim of a rape who does not press charges because to do so would require her to eventually go to court and remove her naqib. A Muslim woman has as much right to access our court system as anyone else. That much is a no-brainer.
This is a tough pickle to resolve. One reasonable accommodation, requested by the Muslim witness was for a female judge. At first glance, this seems like a reasonable request, but any further inquest shows this to be an unworkable request. It would be sufficient just for the purpose of confirming the identity of the witness, but it does nothing for the ability of the lawyer and jury to evaluate the credibility of the witness. For that, all the lawyers, parties, judges, juries and audience would have to be female. This is obviously not an option.
This case represents two extremes, neither of which are attractive. One is to allow people to testify completely covered and gain an advantage that other parties and witnesses don't have. The other is to limit the access to our system of justice based on one's religious beliefs. Equally unacceptable. However, if forced to pick between these two poles, I would have to side with constitutional and judicial equity over religious freedom. In tough cases like this, religious belief has to take its place behind constitutional mandate and judicial fairness.
That being said, the current options represent a false choice, and legislatures and the courts should continue to work on coming up with a solution that protects both the integrity of our legal system as well as the religious freedom of our witnesses and litigants. Until that compromise is worked out, rules like this should be narrowly construed so as to avoid undue impact on religious freedom.
Comments