The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In Elzahed v. New South Wales (decided Friday), a Muslim woman (along with her family members) sued the government, claiming that she was mistreated when a terrorism-related search warrant was executed at her home. The woman insisted on testifying wearing a full face veil (niqab). The judge suggested that she might instead testify from "a remote room, [with her] face … uncovered," or "that the court would be closed so that only the lawyers involved in the proceedings would be in court and see the appellant giving evidence." But the woman refused, on the grounds that she "would not reveal her face to men." (The judge was female, but at least some of the lawyers were apparently male; this was a bench trial, so there would not have been a jury present.)
The judge therefore refused to allow the woman's testimony, and the New South Wales high court held that the judge acted permissibly. The court cited an earlier decision stating that "in recent years judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of demeanour. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events." But the earlier decision concluded that this principle "does not eliminate the 'established principles about witness credibility,'" including the view that a court may consider a witness's facial expressions as part of the evidence:
There was no error in the primary judge's ruling that the appellant could not give evidence with her face covered by a niqab. The appellant was a party in the case, not merely a witness. The appellant's evidence was strongly contentious. The resolution of the case would require the primary judge to make findings about whether to accept the appellant's evidence or the conflicting evidence of the NSW police officers.
Viewing the appellant's face while she was giving her evidence was capable of affecting the resolution of that conflict. The primary judge did not err in concluding that fairness to all parties required her to reject the appellant's application….
Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.