Confrontation And The Veil

The Sixth Amendment to the Constitution sets out the Confrontation Clause, which ol’ Nino took very seriously. It also provides for a speedy and public trial, all of which gives rise to a problem when a witness for the prosecution wears a veil.

Eugene Volokh provides the background.

Tyreese Copper was convicted of murder and sentenced to life in prison. (This comes from Commonwealth v. Copper, which was decided in September 2018, but I just learned about it from a follow-up federal opinion filed early this month.) At trial, eyewitness Davina Sparks was called to testify; but she was a veil-wearing Muslim woman, and (to quote the government’s brief),

[C]ounsel objected to Ms. Sparks testifying while wearing her Muslim garb that covered her face. Ms. Sparks refused to remove the garb, citing her religion as the reason for her refusal. Out of deference to Ms. Sparks’s religious beliefs, the court decided to clear the courtroom for Ms. Sparks to testify without her face garb “so I can at least have her taking off her covering only in the presence of the people who are absolutely essential to being here,” i.e. the jury, court staff, defense counsel, and defendant. Trial counsel did not object to the court’s proposal. Ms. Sparks agreed to remove her face garb in a courtroom cleared of spectators.

There being no contention that Sparks wasn’t entirely sincere in her religious belief that compelled her to wear a full face veil, yet another constitutional right is implicated; her First Amendment right to free exercise of her religion. Our Constitution can make things very complicated at times.

The Confrontation Clause has various aspects of significance, most notably the ability to confront by cross-examining a witness. For example, if a lab report concluding that a substance is heroin is introduced as a necessary element of an offense, but the prosecution puts it in as a piece of paper through the testimony of a records custodian, there’s no way to question the methodology of the lab analysis.

You can ask a piece of paper questions all you want, but it’s not going to answer because it’s a piece of paper. You can ask the custodian, but the best you’re going to get is the routine methodology rather than what was done in this particular instance. And, of course, it’s not likely to serve any useful purpose. This is why the report shouldn’t be allowed into evidence if the person who conducted the particular analysis doesn’t testify. Cross matters.

But there is another component, the ability of the jury to observe the witness’ testimony. This is, in essence, a throwback to the belief that people have some magical ability to discern truthful testimony from lies. Courts generally phrase it as the jury’s ability to observe the witness’ demeanor, to see the witness squirm when asked tough questions, to watch their face contort, the redness of their face, the tears well up in their eyes when the blow lands hard.

Sometimes this happens, and when it does, it can be amazing. But most of the time, witnesses lie with the same sincere face as when they tell the truth. Sometimes, they lie even better than when they tell the truth. And there’s no way to distinguish which is which, absent extrinsic evidence. There is also the problem of people telling the truth but looking like liars, which can happen for a great many reasons.

The point is that “demeanor” isn’t all it’s cracked up to be, and may just as well deceive a jury as aid it in deciding who is lying to them. Yet, it remains a crucial element of confrontation, and testifying from behind a veil precludes a jury from observing it. Is that a Sixth Amendment deprivation? What about the right to a public trial, which was once a right due solely to the defendant but has since morphed into a right of the public to watch? And then there’s Sparks’ right to exercise her religion. What about that?

“[T]he right to a public trial is not absolute; rather, it must be considered in relationship to other important interests….” Commonwealth v. Conde (Pa. Super. 2003). We have permitted exclusion orders for “the protection of a witness from embarrassment or emotional disturbance.” Moreover, “an exclusion order which is designed to protect a witness from emotional trauma will not necessarily be constitutionally infirm if it excludes the entire public for a limited time.”

Based upon the foregoing, we discern no abuse of discretion in excluding spectators from the courtroom while Ms. Sparks testified…. [I]n striking a balance between Appellant’s right to a public trial and the need to respect the witness’ religious beliefs, the trial court cleared the courtroom, but only for the duration of Ms. Sparks’ testimony. The exclusion was limited in duration to protect the witness from emotional disturbance, as well as to protect Appellant’s right to confront her and to allow the jury to make effective credibility determinations….

As Sparks was compelled to testify without her veil, but in a closed courtroom, the Confrontation Clause concern was addressed at the expense of her religious freedom and the right to a public trial. Of the three constitutional rights in conflict, two gave way for the sake of the jury observing the witness’ demeanor.

The standard applied by the Pennsylvania Supreme Court was abuse of discretion, which is nearly impossible to overcome. The trial judge has to be outrageously wrong, and the effort to accommodate the conflicting rights was, even if wrong, close enough. But as Eugene notes, the most inflexible of these rights is the one the court called “not absolute.”

Note also that the First Amendment has been read as securing the public’s right of access to court hearings (and court records), to much the same degree as the Public Trial Clause secures a criminal defendant’s right to have the trial be public. The court’s reasoning would thus suggest that the witness’s felt religious obligation to have as few men as possible see her unveiled trumps this First Amendment right of access as well as the Public Trial Clause.

Is this right? The seemingly unlimited command of the Public Trial Clause suggests that it isn’t, but there are indeed lower court cases that do allow that command to be trumped in some instances.

Running through a laundry list of reasons to close a courtroom, most of which are grounded in a witness’ claim of trauma from public scrutiny, Eugene turns to some “public trial” prawfs for an answer, none of which do much to provide any meaningful guidance to a lawyer facing this situation at trial. So what gives, confrontation, public trial or the right of a witness to exercise her religion? Which right would be best to sacrifice, since something has to go?

20 thoughts on “Confrontation And The Veil

  1. Noxx

    My stab at this. It seems that the concepts of a public trial and confrontation are fairly well defined and easily understood. The free exercise of religion however, depends entirely on the Sky Daddy in question doesn’t it? In this instance it’s a veil, in another it’s an entirely different tradition (or brand new foolishness, equal time and weight for all Sky Daddies). Because one of these cannot be considered until it arises, the loser seems obvious to me.

  2. Richard Kopf

    SHG,

    I am assuming the government, the defendant and the witness are inflexible. I further assume that this matter is really more of a hypothetical inasmuch as we don’t know a lot about what the trial judge actually did or found.

    With the foregoing in mind, if she is a government witness in a criminal trial and she invokes her First Amendment free exercise right to cover her face then the government must be precluded from seeking to compel her testimony assuming her religious beliefs do not appear to be a pretext. But even then whether a court can pry into the sincerity of her religious beliefs rings all sorts other warning bells. In short, the government is precluded from calling her as a witness.

    The more difficult question (apparently not raised by Volokh) would arise if the defendant sought to compel her testimony as an adverse witness, she insisted on her veil while testifying and the defendant insisted not only that she remove the veil but also that the courtroom remain open (perhaps so his homies could stare at her or not)..

    All the best.

    RGK

      1. Richard Kopf

        SHG,

        Well, yeah. That is what trial judges do!

        But, if I had to sacrifice a right it would be the public trial right.

        Why? I don’t like crowds.

        All the best.

        RGK

  3. Bruce Woodrow

    You are critical of the importance of demeanour to truth assessment. Is there any move to reduce its importance?

    Suppose the person wishing to remain veiled is not just a witness but a Defendant (criminal or civil proceeding), and her giving testimony is necessary to her defence. In that case, clearing the Courtroom might be for an extended period. And there might be many males who remain (Judge, lawyers, court staff, perhaps security).

    Allowing the veil to remain in place might best satisfy Occam’s Razor, but maybe not the Constitution.

    (My head hurts so I’ll stop now. Thought-provoking post and comments as usual.)

    1. SHG Post author

      I’m not so much critical of demeanor as recognize that it’s value has become more a matter of rubric than reality.

  4. Boffin

    There should be something of a Blackstone’s Ratio for constitutional rights: Better that a hundred guilty men go free than a single rule be broken. If you can’t convict without a speedy public trial, confrontation, and all the rest, the defendant walks.

    I suspect this is the understanding of most non-legal folks, who still believe that if a speeding ticket or warrant has a typo that means they’ll get off scot-free.

    1. SHG Post author

      Some rights merit a walk. Some a fix. Some don’t mean much at all. Which is which, and why, is often hard to explain and harder, if we’re being entirely honest, to justify. But when you’re a lawyer, you deal with it because we have no other choice.

  5. Pedantic Grammar Police

    To this outside observer it appears that the most important rule in any criminal trial is that no defendant can ever be “let off the hook” by a technicality, unless he is a billionaire. Courts will perform any contortions necessary, and every other rule will be bent or broken, to avoid breaking this primary rule.

    As you mentioned the other day, even a Supreme Court ruling slapping down a conviction on technical grounds will only result in the lower court moving the goalposts and scoring anyway.

    1. SHG Post author

      You would have done better to leave out the “unless he is a billionaire.” That’s one of those false and damaging red herring tropes that really needs to die.

      1. Pedantic Grammar Police

        Cough*Epstein*Cough… OK it was the US Attorney that let him walk, not the courts. But you’re right, a non-zero number of billionaires have gone to prison.

        1. SHG Post author

          Forget the thousands of wealthy people in prison you never heard of to offset your one person that was highlighted in the news? Remember, if you know about it, it’s by definition the oddball, as “dog bites man” doesn’t make the news.

        2. Leo

          Only poor and black people are in prison, everyone on twitter says so. This will come as a huge relief to all the white and wealthy people, who are waiting in lines at the prison gate to be let out.

  6. Ben

    People have been jailed for contempt after refusing to testify on religious grounds. A quick search finds Rabbi Moshe Zigelman, and a Mennonite called Greta Lindecrantz.

    This is right. Religion has to give way on purely practical grounds: If there are no consequences the exemption will be claimed frivolously. Conversely accepting punishment rather than testifying is some sort of evidence that a religious objection is sincere, but doesn’t defeat the state’s overriding interest.

    (It’s questionable whether Zigelman’s objection was actually religious rather than a sort of omerta, since he was a co-conspirator. But he claimed it was religious, and he was released after seven months when the prosecution accepted he wasn’t going to change his mind)

  7. Black Bellamy

    Everyone should have to testify naked. In fact, everyone in the courtroom has to be naked. Every chair and podium made of lucite. 800W bulbs in the ceiling and the floor. All testimony has to be yelled out so everyone can hear. These are my Sincerely Held Religious Beliefs.

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