The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This is a claim by four plaintiffs for damages for injuries each of them say they sustained during the execution of a search warrant at their home on 18 September 2014. The AFP is the first defendant, and the New South Wales police is the second defendant. Liability is in issue.
The first plaintiff is the wife of the second plaintiff, and the mother of the other two plaintiffs. She is a religious Muslim. She wears what I understand is a niqab; that is, her whole body, other than her eyes, is covered. Senior counsel for the plaintiffs informed me earlier today that he intended to call the first plaintiff to give evidence. The issue then arose as to whether she should give that evidence with her face covered or uncovered. Just before I adjourned I was told that the first plaintiff refused to give evidence with her face uncovered.
Since I have resumed after lunch, I have offered other courses to the first plaintiff; that her evidence be taken while she is in a remote room. Her face would be uncovered, but she could choose not to see who is watching her to give evidence; and/or I close the court so that only lawyers involved in the proceedings would be in the court. She has decided not to do so.
It is my role to ensure that there is a trial which is fair to all parties. I must balance on the one hand the need to respect the first plaintiff's religious beliefs. In this case, those beliefs mean that she may choose not to give evidence which could impact on the successful prosecution of her case.
On the other hand, I must take into account whether I would be impeded in my ability to full assess the reliability and credibility of the evidence of the first plaintiff if I am not afforded the opportunity of being able to see her face when she gives evidence. I am well aware that the demeanour of a witness and the viewing of their face is not the only way in which credibility is assessed. In some cases the demeanour of a witness may be misleading. However, neither of those considerations can, in my view, mean that I should be completely deprived of having the assistance of seeing her face to assess her credibility.
I have only heard the evidence of one of the sons. However, yesterday I asked senior counsel for the plaintiff whether there will be a conflict in the evidence as to what actually occurred, and he replied that there is bound to be. He agreed that I will need to make a finding about whose evidence I prefer.
As the resolution of the likely conflict in the evidence as to exactly what occurred that morning is essential to the determination of the proceedings or the part of the proceedings involving the first plaintiff at least, and the assessment of the weight to be given to the evidence of the first plaintiff is part of that exercise, I have decided that she can only give evidence with her face uncovered. I decline to permit her to give evidence with her face covered.
For more on how this issue has been treated in American courts, see here. A few quick thoughts:
1. In principle, some religious accommodation in courtrooms may make sense. For instance, many courts bar people from wearing headgear in court, for the sake of courtroom decorum. It makes sense that there be an exception for religious headgear, since wearing such headgear isn't seen as a sign of disrespect. To quote noted conservative Judge Frank Easterbrook,
The Constitution does not oblige the government to accommodate religiously motivated conduct that is forbidden by neutral rules, and therefore does not entitle anyone to wear religious headgear in places where rules of general application require all heads to be bare or to be covered in uniform ways (for example, by military caps or helmets). Yet the judicial branch is free to extend spectators more than their constitutional minimum entitlement. [EV adds: Federal and state Religious Freedom Restoration Acts, and some state constitutions, likewise mandate such exemptions.]
Tolerance usually is the best course in a pluralistic nation. Accommodation of religiously inspired conduct is a token of respect for, and a beacon of welcome to, those whose beliefs differ from the majority's. The best way for the judiciary to receive the public's respect is to earn that respect by showing a wise appreciation of cultural and religious diversity. Obeisance differs from respect; to demand the former in the name of the latter is self-defeating.
It is difficult for us to see any reason why a Jew may not wear his yarmulke in court, a Sikh his turban, a Muslim woman her chador, or a Moor his fez. Most spectators will continue to doff their caps as a sign of respect for the judiciary; those who keep heads covered as a sign of respect for (or obedience to) a power higher than the state should not be cast out of court or threatened with penalties. Defendants are entitled to trials that others of their faith may freely attend, and spectators of all faiths are entitled to see justice being done.
2. At the same time, some religious accommodation would so interfere with government functioning that requests for such accommodation should be denied. Traditionally, a judge's and jury's evaluation of a witness's facial expressions is seen as an important part of judging the witness's credibility. It's thus not surprising that, in keeping with this Anglo-American tradition, a judge would insist that the witness show her face, notwithstanding her religious objections.
3. The twist: As I understand it, recent empirical studies suggest that, despite this tradition, people are actually awful at determining a person's credibility based on facial expressions; if that's so, then there's no actual reason to forbid witnesses from wearing veils. The question is how much credence courts should give to those studies, and how much to tradition.
Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.