Freedom of Religion

Judge Didn't Err by Refusing to Let Witness Testify With Her Face Covered

So holds the New South Wales (Australia) high court.

|The Volokh Conspiracy |

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.

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  1. In the US, a witness wearing a mask of some sort would implicate the right of confrontation. I gather this isn’t the case in Australia?

    1. Even in the US, isn’t the right of confrontation a criminal trial right that would not apply to a civil suit? This decision is from a civil case brought against the government by the woman and her family.

  2. According to the link that lady sounds like quite the pill.

  3. While I agree that a judge should have the power to compel veil-less testimony, I think it ought to be left to the trial judge’s discretion whether to insist upon it. If the witness wants to disadvantage herself and run the risk of impairing her credibility by making it hard for the judge, I don’t see why the judge cannot, in the exercise of discretion, let her run that risk.

    1. CJC,
      I have little doubt that your suggestion is actually the rule and practice. I do not think there is a “witnesses *must* have their faces revealed” law. Not at the federal level…and I’m unaware of any state law. I think that most judges would insist that faces be revealed. But not always.

      When I had a million trials in Children’s Court (in LA County), there were the occasional witnesses who asked for this. And two judges who worked in my courtroom did allow this–but only in cases where the evidence was already leading to a pretty certain result. In other words, I think the judge (and all the attorneys working on that case) all said to themselves, “It does not really matter if she covers her face, since we all know how the judge will be ruling. So why bother with the hassle?…let this witness do what she wants.”

    2. It appears that the judge may have allowed the disadvantage except that this was the primary witness and accuser hence the insistence upon veil-less testimony. Not to mention that in Islamic courts, she would never have had a court case and IIUC even if she had, her testimony would have been taken veil-less in front of males.

      1. Setting aside your paralepsis, how would what would happen in Islamic courts be relevant to this discussion?

        1. If her argument is “I should be allowed to testify dressed however I like”, then no, not relevant.

          If her argument is “I should be allowed to follow my sincerely held religious belief that I dress that way”, then there is a certain question of whether the religious tradition she is claiming to follow allows her to testify AT ALL.

          Of course, she could claim (in the US anyway) that she follows a private version of Islam that requires purdah but also allows women to testify.

  4. Good to see courts not letting 7th century tribal customs intrude into the 21st century.

    1. When did the clergy confessional privilege, or swearing to tell the truth while resting a hand on a book of fairy tales, become part of this discussion?

      1. When you, who has no idea of historical timelines, interjected your ignorance into the conversation

        1. I doubt you missed the point. Or cared for it, of course.

          Happy Clinging!

    2. And what’s with this oathtaking in court? How old and outmoded is that?!

      1. It’s not old or outmoded at all.

        Was there a bet between you and Rev. Arthur L. Kirkland to see who could come up with the stupider example?

        1. I hope not, because I hate to see Arthur win anything.

  5. If I were on a jury, I do not think I would put much credence at all in someone who I could not clearly see.

    But what I really wonder is, how can anyone know who a witness is when their face is covered? Seeing just the eyes alone would not be enough for most people. A nun’s habit, with only the face showing, no hair, nothing else but hands, is about as far as I’d accept, if I were on a jury.

    Seriously though, how are witnessed vetted in general? Does the bailiff or someone check IDs beforehand? Is it entirely reliant on who the witness self-identifies as, and hoping someone else can object if it’s a lie? What protection is there in the case of seeing nothing, except maybe the eyes?

    1. Given that jurors are specifically chosen because they have no connection to the case (a reversal of the common rule at the time of the Founding), seeing the witness’s face does nothing to confirm or rebut their allegations of identity.

      Identification is a matter of testimony elicited from the attorney who called the witness. If you called me to the stand, asked me to state for the record my name and address and I said I was Donald Trump of 1600 Pennsylvania Avenue, 1) the opposing attorney should be ready to accuse me of lying and 2) if you knew I was lying, you would have an ethical obligation to correct me.

      The purpose of seeing a person’s face is about identifying subtle behaviors indicative of lying, not about identification.

      That said, statistical studies show that we humans – jurors, lawyers and judges explicitly included – are not nearly as good at identifying liars as we think we are. At 54%, it’s just barely above random chance. Even those specifically trained to observe and detect micro-expressions have a success rate only slightly better.

      1. This question has previously come up on other posts on this subject. I’d be curious to know why people think anyone does verify the identity of witnesses when they appear in court. In this respect, at least, the lawyer shows have it right. On TV, and in real life, the witness gets on the stand and, after taking the oath, identifies himself or herself. Usually, there is not dispute about who the witness is. (Often, the identity of the witness is irrelevant. If John Smith is being called because he happened to be at the street corner and can testify about whether the light was green or red, nobody much cares whether he is John Smith or Bernie Madoff, as long as he was the person standing at the street corner — although if he were Bernie Madoff, or were lying about who he was, that might affect the credibility of his testimony about the color of the light.) If there is a dispute about whether the witness is who the proponent claims the witness is, it will likely be known to all the lawyers, and the person who disputes the identity of the witness will marshall the evidence, on cross examination, in a motion in limine, or otherwise. You never see that on TV and almost never see it in life.

      2. Missed my question. I specifically said I would not put much credence in someone I can’t see; you did nothing by repeating that.

        What I wondered is how witnesses are identified. If it is just by what they say on the stand, then how do they keep random people claiming to be someone else? If a cop takes statement at the scene, does he demand proof of name and address? And then something is mailed out months later, and would the cop, even if present, recognize that someone else has taken their place?

        It seems awful strange to demand ID for voting, which is well-known to have little importance, and not demand ID for witnesses in criminal cases.

        1. It seems awful strange to demand ID for voting, which is well-known to have little importance, and not demand ID for witnesses in criminal cases.

          And my question was why does that seem strange? There is nothing in anyone’s real-life or TV/movie/book experience to suggest that we do do that, and no apparent reason that we would need to do that. How common is it likely to be that the identity of the witness, if relevant, is disputed? If it is disputed, there are ways to deal with the dispute without routinely ID-ing people when they take the stand.

  6. “Now, sir, you are the Grand Wizard of the Ku Klux Klan, are you not?”

    “How did you guess? It’s the mask, isn’t it?”

  7. “Hello, Mr. Fawkes, what brings you back to court…oh, wait, that’s a mask.”

  8. Interesting that all commentators so far is willing to let the woman be completely defenseless. It’s open season on her in Australia. She can be beaten, robbed, raped, anything. You can do anything you want to her, and be confident you can get away free. The courts won’t let her testify as to anything done against her. They won’t even take her word a rape happened.

    All for indicia of truthfulness that are at best slightly – slightly – better than flipping a coin.

    Fair?

    1. Uh, the courts absolutely will let her testify. She chose not to.

      1. True, but assuming her belief is fervent, it does create the potential of having to choose between misery in this world or the next.

        Which is sometimes inevitable, but should be noted as the cost of this decision.

        1. You’ve been around these guys long enough to recognize the drill, Sarcastro.

          Conservatives recognize Christian traditions because they are the one true way, and sometimes tolerate Jewish traditions because Jews have an important role to play . . . right up to the moment at which they no longer are useful, of course, at which great day they will hurtle toward eternal hellfire.

        2. I am far from an expert in Muslim theology, but I don’t think that the injunction is that a woman remain covered everywhere and always, else she burn in Hell, only that she dress and act “modestly”.

  9. A small point- this was a decision of the Court of Appeal, the highest Court in the State of New South Wales, but an Australian lawyer wouldn’t refer to it as a high court. That is because there is one further appellate tier, and that is the High Court of Australia.

    1. I appreciate your point, but I was trying to convey things clearly to my mostly American audience. Calling this the New South Wales Court of Appeal would likely make it sound, to American ears, like an intermediate court within the New South Wales system, much as the California Court of Appeal is the court below the California Supreme Court. (A few states, such as New York, do call their highest court “Court of Appeals,” but that’s the exception.) I thought that “New South Wales high court” accurately conveyed that this is the high court of New South Wales, just as “California Supreme Court” would accurately convey that it’s the Supreme Court of California, even though there is also the Supreme Court of the United States.

  10. As justifications go, this one is pretty pants. There is a massive body of work that shows that while we think we are good at detecting lies, we really are pretty bad at it, and using facial features can led to result worse than chance. This is particularly the case when signals are used that are not culturally universal (e.g. interpreting cast down eyes). We are relatively best (still and though) when judging sincerity of emotions from facial expressions – but the inference then to the truthfulness of the content is often flawed well (“more nervous than let on” does not mean “said something false”, merely learned to cope with shyness, e.g.) Some recent discussion including similar cases from Canada is Porter, et al. (2012). Secrets and lies: Involuntary leakage in deceptive facial expressions as a function of emotional intensity. Journal of Nonverbal Behavior, 36(1), 23-37.

    We are better when judging text, hence cognitive interviews as best practice. So if truth assessment is your concern, veils should be mandatory, not prohibited.

    1. One. Some people are very accomplished at telling what they know to be untruths with a completely straight face.
      Two. If someone honestly believes an untruth or nonfact, they are not deceptive in relating it and all a lie detector (reading facial expressions, heart rate, breathing, tea leaves) can say is that they believe what they are saying.

    2. “There is a massive body of work that shows that while we think we are good at detecting lies, we really are pretty bad at it, and using facial features can led to result worse than chance.”

      Leaving aside the massive body of work showing that these types of experiments are not particularly trustworthy, that doesn’t show that we are better at judging truth when we don’t use facial features than we are when we do.

      1. Oh, but they do. In particular when people perform worse than chance, this indicates that they follow misleading folk mythology when using facial expressions (“looking to the left” etc) so it becomes an active error source.
        Second, they show that people overestimate their own ability – getting the evaluation the reliability of your assessment right is as important as gettgingthe assessment right, when making decisions. So removing a source for over-confidence is also important.
        Finally, for the court, “not being worse than” unveiled would not be sufficient as a justification.

        1. Oh but they don’t.

          “In particular when people perform worse than chance, this indicates that they follow misleading folk mythology when using facial expressions (“looking to the left” etc) so it becomes an active error source.”

          No it doesn’t. It doesn’t mean that at all. Just like it doesn’t mean anything if I do significantly worse than chance when predicting coin flips.

          Not to mention the massive body of work showing that these types of experiments are not particularly trustworthy.

  11. If the woman is embarrassed or humiliated by doffing her veil, would that emotion interfere with reading her demeanor in order to judge her credibility? I suspect it would make it harder.

  12. Reading the decision, it seems that the rationale was that the plaintiff never gave a reason for wanting to wear a naqif. Her lawyer just made an out-of-the-blue request, and never once suggested the matter involved religious beliefs or anything like that. It was just a whim. How could the trial judge possibly be expected to have known otherwise?

    On the one hand, this suggests the matter is essentially procedural – the plaintiff’s lawyer should have made a formal written motion with sources and affidavits rather than simply making an oral request and expecting the judge to understand the reasons for it. Perhaps future litigants, whose lawyers put more work into providing a formal foundation, might be more successful.

    On the other hand, the Court of Appeal’s approach seems more than a little disingenuous. It seems just plain wierd to an American observer, used to religious claims being a routine part of jurisprudence, to pretend a judge would have no idea religious issues were involved in a matter like this unless told.

    At any rate, according to the Court of Appeals’ opinion, since religious issues were never raised, they never had anything to do with the case. All the opinion decided is that when courts face requests that, so far as formal evidence is concerned, are pure whims, judges can deny them as a matter of discretion, if there is any rational reason for denial. And they found there was here.

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