Should judges allow witnesses to wear the niqab on the witness stand? A modest proposal

by Joseph Shieber

In our pluralistic society, could First Amendment protections of religious freedom, say, clash with other firmly entrenched legal norms? So, to take a particular example, suppose a Muslim woman was called as a prosecution witness in a criminal trial. Could her religious obligation to wear the niqab trump the defendant’s right to confront his accuser?

I began thinking about this particular sort of case because of a September 2018 decision in the Pennsylvania murder trial of Tyreese Copper, who was convicted and sentenced to life in prison. One of the witnesses for the prosecution was a Muslim woman named Davina Sparks, who insisted upon being allowed to wear the veil covering her face while giving testimony in open court.

Here’s what happened next, according to the account at the Volokh Conspiracy blog. The defendant’s attorney

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.

Now, as Volokh goes on to discuss in his post, Commonwealth v. Copper has become an object of debate because the judge’s clearing the courtroom impinged upon Copper’s Sixth Amendment right to a public trial (via the Fourteenth Amendment). But I want to look at the case from a different perspective.

The judge in the case took it for granted — in line with previous decisions — that allowing Ms. Sparks to testify while wearing the niqab would violate Copper’s Sixth Amendment rights for a different reason: the Sixth Amendment guarantees the accused’s right “to be confronted with the witnesses against him”.

Now, you might wonder how Sparks’s face-covering would deprive the defendant, Cooper, of his right to confront her.

The tradition is that the right to confront the witnesses against you means the right to see their faces and to have them see your face as well.

For example, in a preface to a collection of state trials published in the 18th Century, Emlyn writes that one difference betwen the English and Continental legal traditions is that, according to the English tradition, witnesses

are produced face to face, and deliver their Evidence in open court, the Prisoner himself being present, and at liberty to cross-examine them …

This requirement, however, would seem only to require that the accused or his/her attorney must be able to hear the testimony of the witness and put questions to the witness on cross-examination. Why interpret “face-to-face” literally, requiring that witnesses’ faces be visible to the accused (and the judge and jury)?

The reason is that the legal tradition takes the demeanor of a witness to be significant evidence as to the trustworthiness of their testimony. So, for example, the decision in Mattox v. United States, 156 U.S. 237 (1895) suggests that one of the main objects of the right of confrontation is that

the accused has an opportunity not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.

This justification has survived to the present in both the United States and British legal tradition. To take one example, here’s I. H. Dennis in his 2007 3rd edition of The Law of Evidence:

… demeanour is an item of information from which inferences may be drawn about the probative value of the testimony, in the same way as inferences might be drawn from proof, for example, that the witness has previous convictions for perjury. Accordingly, demeanour is rightly treated as an item of real evidence analogous to the appearance of persons and the observable qualities of an object.” (p. 502)

This seems intuitively really plausible. Most people probably think that they’re at least decent at telling when someone is not being honest. They notice if someone won’t make eye contact with them, or if someone is fidgeting, or can’t keep a straight face.

The problem is, as I detail in my book on testimony, that these intuitions are simply false. There is a great deal of evidence from social psychology – going back decades – that you and I would actually do just about as well if we flipped a coin to decide if someone is being dishonest.

Take, in particular, those nonverbal cues for whether someone is being dishonest. Eye contact. Fidgeting. Not being able to keep a straight face.

It turns out that none of those cues are good indicators of dishonesty!

In fact, even more confusingly, it seems that although most people think that they rely on those cues in particular in telling whether someone is being dishonest, it turns out that they actually don’t rely on those cues at all. Which would be good news – except for the fact that the nonverbal cues that we actually rely on are not any better at indicating dishonesty.

The legal community is beginning to recognize the disparity between the growing scientific consensus about human abilities to detect deception, on the one hand, and the legal framework around witness testimony at trial, on the other. And since juries are made up of humans, it’s about time!

However, the sorts of remedies generally considered by the legal community have to do with informing juries about the problems with assessing the credibility of witnesses or instructing them on which aspects of witness testimony they should highlight in their deliberations. And it turns out that even more intensive training on deception detection doesn’t have a very large effect on the accuracy of a person’s judgments about deceptiveness.

We’ve had to take a bit of a detour from where we started out, but here’s where Davina Sparks and her niqab come in.

That’s because one of the perhaps surprising ways at least marginally to boost the accuracy of juries in evaluating witness testimony is to have the witnesses testify wearing the niqab (compare also this).

The reason for this isn’t clear, but it might well have something to do with the fact that the niqab forces juries to ignore those – misleading! – nonverbal cues from witnesses. It forces them to listen to the witnesses, and perhaps to pay more attention to their reasons for testifying.

So rather than ask whether courts should allow witnesses to wear the niqab, perhaps instead we should be asking a different question.

Perhaps we should be asking whether we ought to mandate that witnesses testify wearing the niqab, regardless of their religious affiliation. And yes, male witnesses as well.