Religion and the Law

Veil-Wearing Witness's Religious Concerns Trump Public Trial Rights

A Pennsylvania court decision said they can (though relying on cases generally allowing restrictions on Public Trial Clause and First Amendment trial access rights in the interest of preventing embarrassment to witnesses).

|The Volokh Conspiracy |

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.

Eventually, Copper sought to overturn his conviction on the grounds that his lawyer was ineffective for failing to object to a violation of Copper's Public Trial Clause rights. But a three-judge panel of the Pennsylvania Superior Court said no, concluding that the judge's decision didn't violate those rights:

"[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….

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. Thus, for instance, Rovinsky v. McKaskle (5th Cir. 1984), stated,

The right to a public trial is not absolute: limitations on public attendance may be imposed so long as they are no more exclusive than necessary to protect a state interest that outweighs the defendant's interest in public scrutiny of the proceedings. Indeed, the protection of witnesses from embarrassment or intimidation so extreme that it would traumatize them or render them unable to testify is a state interest sufficiently weighty to justify partial or complete exclusion of the press and public.

Classic examples are (to borrow from a list in another case), "to protect dignity of witness in rape trial," "to protect witness with fear of testifying in public," "to protect witness afraid of testifying," "to protect witnesses from intimidation," to protect child witnesses in rape trial from embarrassment," "to protect witness and his family where safety threatened," "to preserve confidentiality of undercover agents in narcotics case," and "to protect from disclosure of trade secrets."

So the question, under these cases, is whether a witness's reluctance to testify in public for religious reasons should be treated analogously to a witness's reluctance to testify for more commonly felt secular reasons (such as fear of retaliation or embarrassment related to testifying about sex crimes). Perhaps the closest analogy is the "fear of testifying in public" case (U.S. v. Eisner (6th Cir. 1976)), where the court approved of an exclusion based on the witness's relatively idiosyncratic apparent psychological condition (the judge "had apparently determined that the witness was afraid of any spectator being present in the courtroom"); but perhaps that case, too, went too far.

Since I'm not a Public Trial Clause expert, I asked a couple of people who were, and they graciously responded and allowed me to quote them. From Prof. Stephen Smith (Santa Clara Univ.):

In fact, this is not a run-of-the-mill closure case, because it's in Pennsylvania. What does that mean? It appears that Pennsylvania is alone in ignoring the Supreme Court's public trial jurisprudence. As the Third Circuit recently said, in an unpublished case, "[w]e are deeply concerned that Pennsylvania courts, including the Superior Court in Tucker's case, are not applying Waller when analyzing defendants' Sixth Amendment public-trial claims." Tucker v. Superintendent Graterford SCI, 677 F. App'x 768, 776 (3d Cir.).

The Supreme Court's Waller case created a strict scrutiny regime for Sixth Amendment public trial claims (borrowed from the First Amendment right of access to courts cases), but it's an odd one in application. Cases applying Waller often uphold closure orders, so it's an area where "fatal in fact" is not true. Nonetheless, it is, at least nominally, strict scrutiny. Pennsylvania's "abuse of discretion" standard can't really be reconciled with that.

There is some disagreement in lower courts about whether Waller's test must be applied in cases of "partial" or "trivial" closures—excluding only some spectators, or all for a short time, or what have you. I think it's a nice bright-line to apply it in all cases, especially since closures will often survive passing through its not-terribly-hot crucible. In any event, closure of the entire testimony of a witness seems like it should trigger any standard for whether a closure has occurred.

Finally, I should note that while Pennsylvania is a linguistic or formal rogue here, the sort of analysis your excerpt engages in is very similar in kind to that mandated by Waller. It looks at the strength of the interest (religious reservations), it looks at how broad the closure has to be (duration of one witness's testimony), it considers alternatives (remove veil or not, with populated courtroom or not), and it seems to make specific findings. But if words matter, reviewing this for abuse of discretion rather than satisfying strict scrutiny should have some effect on result—one should be more forgiving than the other.

In terms of these facts and comparisons to other cases, the classic "overriding interest" is witness intimidation. You can exclude someone from the courtroom ("close it" to them) if he is looking at a witness and running his finger across his throat. But it's not that limited. Someone's personal discomfort *may* be sufficient, but the discomfort cases have been pretty extreme—closing courtrooms for child victims testifying in sexual abuse cases. The question is how solicitous a court should be of discomfort arising from religious compunctions.

Here's the reaction of Prof. Jocelyn Simonson (Brooklyn):

[T]he court has an ongoing obligation to ensure open courtrooms, to consider alternatives to closure, and to make findings on the record before closing the courtroom. It's hard to tell from this case whether that happened …. If there were no findings and no explicit consideration of alternatives, then this should not fly (and the attorney should have asked asked for them). If there were, though, then perhaps the court acted within constitutional boundaries.

As for alternatives, why not have the witness face the jury with her back to the audience (and move the defendant's chair for confrontation purposes)? Of course it all depends on specific courtrooms, but full closure is a last resort.

And here's one from Prof. Gregg Leslie (Arizona State), formerly of the Reporters Committee for Freedom of the Press:

My first reaction would be that there's a world of difference between "embarrassment" and "emotional disturbance/trauma." This definitely seems to be an abuse of discretion for protecting a witness from embarrassment. And I'd question whether the trauma of removing a scarf for a jury is any different than doing so for the court spectators.

I think the judge should have to make very specific findings about why the difference protects a compelling interest, since part of the evaluation is whether the protection granted will actually serve the interest stated. Also, part of the test for overcoming a right of access would be whether there is a less restrictive alternative. Here I'd suggest maybe she could have testified publicly with a scarf and then talk to the jury briefly in a closed courtroom; or testified briefly without the scarf but screened from the courtroom but not the jury, as has been done with minors and sex assault victims in some cases. I think my conclusion would be that without specific findings and consideration of alternatives, and with too much deference from the appellate court, this violates First Amendment access rights.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

 

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  1. So let’s see if I have this correct. If you are a Christian who believes that abortion is murder and who does not want to fund that murder, you have to go to the Supreme Court to have your religious beliefs upheld, at which point you will have to fight the battle all over again while the government tries to get around the ruling. If you are a Muslim who believes that you shouldn’t show your face in public (which is not, by the way, a general tenet of historical Islam but a fairly recent adoption by a few radical sects), then you just go straight to having your religious beliefs upheld and respected. Just making sure I have it right.

    Also wondering how soon there will be articles everywhere talking about how religious beliefs have no place in public and that you have no right to those beliefs in places like a court of law, a standard that is routinely applied to Christians.

    I am not arguing for or against the ruling, btw, just wondering about the consistency of how religious beliefs are respected in our legal system.

    1. You don’t find any secular distinction between the act of paying taxes in a society where the government spends them and the act of testifying with your face uncovered?

      1. In the sense that both are government-enforced obligations which (at least for some people) conflict with sincerely held religious beliefs? No, there’s not a really relevant distinction. Heresolong has a point that there is some evidence of double-standards in the protection of religious beliefs.

        (However the comment about the recency and/or prevalence of a religious belief is irrelevant. If you decide tomorrow that the Great Flying Spaghetti Monster requires you to wear a purple hat at all times, the only test is whether that belief is sincerely held.)

        1. Your needing to go up to that level of generalization shows how much you’re reaching to create persecution.

          In terms of compelling governmental interest, difficulty of remedy, and precedents of said remedy for other secular reasons, these are not the same.

          Agreed that the government getting into sincerity is a bad idea.

          1. I think litigating sincerity is inevitable, and many times case results contort doctrines to accord with judicial judgments about sincerity.

            The basic problem with religious exemptions is that claimants tend to understate what a huge, gigantic favor is being done to exempt a claimant from a generally applicable law. Everyone else in society is required to do something, often on pain of civil or even criminal liability, but you get a completely different standard where you get to do things that other people don’t get to do. There should be a super-high standard for that.

            And to be clear, the idea that a single insincere person would get an exemption is absolutely horrendous. For instance, if an insincere person gets a draft exemption, some other person could die in that person’s place. If an insincere person gets an exemption from health insurance mandates, some people could needlessly be denied important health coverage. If an insincere person gets to wear a hijab on the witness stand, that person might be able to lie without the jury looking at his or her face.

            So we absolutely, 100 percent, should litigate sincerity. And it should be a high burden of proof. If you are truly devoutly religious, it should be easily to establish your regular church/synagogue/mosque attendance, your devout adherence to religious doctrines, etc. Because obviously you would never allow the god you believe in to punish you harshly if you are a true believer.

            (Having said this, in this case, I don’t see how having a single witness testifying with the courtroom cleared is a significant violation of the public trial right.)

        2. If you decide tomorrow that the Great Flying Spaghetti Monster requires you to wear a purple hat at all times, the only test is whether that belief is sincerely held.

          Judge John M. Gerrard of the United States District Court For The District Of Nebraska disagrees with you finding that:

          The Court finds that FSMism is not a “religion” within the meaning of the relevant federal statutes and constitutional jurisprudence. It is, rather, a parody, intended to advance an argument about science, the evolution of life, and the place of religion in public education. Those are important issues, and FSMism contains a serious argument but that does not mean that the trappings of the satire used to make that argument are entitled to protection as a “religion.” Nor, the Court finds, has Cavanaugh sufficiently alleged how the exercise of his “religion” has been substantially burdened. The Court will grant the defendants’ motion to dismiss.

          1. You’re reading that decision wrong, BadLib. Consistent with my statement, Judge Gerrard found that Cavanaugh’s alleged belief was not a sincerely held religious belief. That decision does nothing to preclude some other person who really does believe in FSMism. I (and the courts) would be justifiably skeptical of the claim but courts have considerable experience with evaluating sincerity.

            My own personal experience with it was as the investigating officer for a claim of conscientious objector status during the First Gulf War. Evaluating the sincerity of a claimed religious conversion takes a lot of legwork but it’s not rocket science.

    2. You’re a bit wrong on Christian beliefs not being upheld in court while Muslim beliefs are. The fact that we can affirm rather than swear is due to Quakers and the religious beliefs of the woman were not upheld, they were just not as violated as they would be otherwise.

      If she had refused to remove her veil even with these concessions I’m pretty sure she would have just been not allowed to testify, like in the NSW case last year.

      There’s also a difference in that the government is unlikely to be partial to a tax evader of any stripe but may bend their standards to get their own witness to testify. Like it or not, judges and prosecutors are human.

  2. At least the confrontation clause wasn’t violated.

  3. Seems about right.

    I wonder what they would do if there were cameras in the court.

    Turn off the camera that shows the witness? Leave it on?

    I like that it was observed that, “The right to a public trial is not absolute. . . . ”

    NONE of our rights are ABSOLUTE (hint hint 2A).

    1. “NONE of our rights are ABSOLUTE (hint hint 2A).”

      True, but gun control proponents mostly treat 2A as a nullity, which is a very long way from it not being absolute. 2A activists treating as absolute is mostly a reaction to the other side trying to treat it as a nullity.

    2. No one argues that the 2nd Amendment is absolute. But the left’s laundry list of demands (bans on semi-autos, bans on private transfers, handgun rosters for guns that don’t exist, absurd carry rules, $340 fees, 10 day waiting periods for people who already own guns) are not just “non-absolute restrictions,” but restrictions that render the right worthless.

  4. This seems like a pretty reasonable closure to me. The defendant got to confront the witness, the judge and/or jury was able to view the witness’s face during her testimony, and the closure was only for a short time. Maybe the judge should’ve discussed other potential alternatives and why they wouldn’t work first, but I think it was a good compromise.

  5. Pretty flexible religious belief.

    “You must cover your face in front of non-family men except for judges, lawyers, baliffs, cops. other court staff and criminal defendants.”

    Muhammed was really specific how he requires woman to behave.

    1. Skeptical of religious laws that take into account practicalities?

      Has Bob has never met a Rabbi?

      1. Sure, sure. She was a Muslim religious law expert.

        1. Sounds like you have a double standard between the nuances in what Jews can believe and what Muslims can!

          1. You need your hearing checked.

            You said a Rabbi would have a nuanced “practical” interpretation, not Jacob Everyjew. She isn’t an Iman, the chance she was able to be nuanced about it was just about zero.

            1. Jews get guidance from Rabbis.
              Muslims get guidance from Imams.

              1. Is there any evidence she got guidance from anyone?

                If not, then you are arguing that an average Muslim woman would be able to know that there was an applicable “court exception” to her deeply held and sincere belief?

                1. I’m assuming sincerity in religious beliefs. You’re the one ginning up bad faith out of too much praticality and nuance.

                  It’s kinda transparent, really.

                  1. Either non-related men can’t see her or they can.

                    If she was sincere she would have gone to jail for contempt.

                    1. That’s not how it works, and you know this.
                      As my example about Jews showed, faith-based rules exist in the real world and make concessions to it.

                      Insisting all Muslims must be full-on zealots or they’re lying is just another way to hate every Muslim – under your procrustrian rule Muslims are either fundamentalist jihadis or lying, eh?

                    2. Seriously? Every religion with strict tenets allows for their violation if the believer is in danger or the need is otherwise pressing. Orthodox Jews don’t have to wear the proper garb if they attract danger doing so, Christians and Jews in Hellenic Rome were allowed to keep Hellenic iconography so that they didn’t attract negative attention, and Muslims don’t have to perform absolution rites in similar circumstances.

                      You really don’t want to go down the path you’re blazing now. Are Christians who swear blasphemous oaths insincere Christians? How about Amish who use power tools at work? Are Jews who aren’t circumcised insincere Jews? Can we now violate their other religious rights because they don’t follow the strictest tenets of their religion when we force them to transgress?

            2. The religion clauses just don’t work that way. They take people as they are. The Supreme Court has said many times that the fact that people may make compromises in ways that may appear to outsiders to be inconsistent doesn’t invalidate the sincerity of the belief. Nor does it matter if the lines are different from those drawn by official or orthodox authorities in the religious law of the religion involved. The courts have to accept the lines that people themselves draw.

              Professor Volokh has often emphasized the individual character of religious rights. While I think group, organizational, and corporate rights have a good deal of relevance, nonetheless this feature of First Amendment law – everyone is a religion unto themselves for purposes of adjudicating personal sincerity – is a core part of Free Exercise jurisprudence.

              1. I wonder if I can get a tax exemption on my residence since I practice my “religion” there everyday.

                1. There are tax code tests for what constitutes a parsonage.

              2. As an example of the relevance of corporate as distinct from individual case, when Notre Dame dough an exemption from contraception elements of ACA requirements Judge Posner asked how they could possibly claim to be sincere when Notre Dame initially had a more liberal policy itself, was instructed by the Vatican to tighten up, and then tightened up.

                If you take a position the Free Exercise clause and RFRA apply ONLY to individuals and sincerity is evaluated ONLY from an individual viewpoint, then Judge Posner’s position makes sense. The Vatican’s position may well not have reflected what the Notre Dame administrators personally thought.

                But if you see Free Exercise doctrines as applying to churches as corporate entities, then the analysis has to be a little different. Because the Catholic church says that the Vatican sets the policy, what the Vatican says has to be accepted as what the Catholic church believes. This means that Catholics who follow the Vatican’s lead on church doctrine are always being sincere, and it simply doesn’t matter that they may have thought something different themselves the minute before the Vatican spoke up. This is why Judge Posner’s approach was incorrect.

    2. Given that he was a perverted pedophile, it’s not that surprising at all.

      1. Aw man. And the Founders were super into the horror of chattel-slavery.

        Better close down America!

  6. If ever there was a compelling reason to override someone’s religious preferences, complying with the constitution would be a reason.

    “The Supreme Court’s Waller case created a strict scrutiny regime for Sixth Amendment public trial claims (borrowed from the First Amendment right of access to courts cases)”

    The difference is that the First Amendment right of access is an inference drawn from that amendment, so exceptions could be inferred as well.

    In contrast, the right to a “public trial” is spelled out specifically in the Sixth Amendment, and I happen to think it’s one of the privileges and immunities of citizenship protected by the 14th Amendment.

  7. The court could have used a less restrictive approach so far as the Public Trial Clause was concerned. Since the witness objected only to men seeing her unveiled, it could have closed the courtroom only to men. This would have partially preserved both the defendant’s and the public’s trial right, even permitting some reporters to attend.

    It’s interesting this alternative appears not even to have occurred to the trial judge.

    But why, exactly, shouldn’t it? Gender discrimination is only subject to intermediate scrutiny, not strict scrutiny. And because all the interests involved are all constitutionally grounded – the withess’ religious rights, the defendent’s and the public’s public trial rights – surely there is a case to be made that they should count as the sort of “important” state interests that tip the Equal Protection balance under existing precedents and justify excluding men but not woman.

    An analogous case could be drawn where a factual issue depends on markings on a witness’ private areas. (That is, the more restrictive set of body areas that contemporary Western mores regard as private). Here too, a witness might be willing to expose in the presence of the same gender, but not both.

    1. “It’s interesting this alternative appears not even to have occurred to the trial judge. ”

      Not very interesting.

      Was the jury all female? You can’y have part of a jury only hear the evidence.

      Was the judge female? The lawyers? The cops and baliff?

      The defendant wasn’t for sure.

      1. In this case, the witness accepted the presence of the participants you named above and wanted only general members of the public excluded. So your hypothetical simply isn’t relevant to this case.

        I replied above to a comment claiming that this compromise rendered her belief insincere. It doesn’t.

        That’s what makes this case so interesting.

    2. What about “trans women”? Shouldn’t they, at least, be entitled to remain in the courtroom?

  8. It seems that whether the defendant was in fact prejudiced in any way should be considered. I don’t see any prejudice, regardless of whether the defense lawyer objected. In fact not raising an objection could have ben a tactical choice, to avoid making it appear to the jury that the defendant was afraid of the witness’s testimony. The reason for an objection could have been seen as an effort to exclude relevant testimony.

    While the “public” was excluded for a short time and the religious practice was perhaps waived, it seems a reasonable accommodation, as might be required by the free exercise clause.

    Another option would be to allow the witness to testify wearing a veil in open court.

    We do not know this particular witness’s actual beliefs. Some Muslims believe that covering the face is not mandatory, others that it is only mandatory in “public” but some believe that is is mandatory at all times any unrelated male is present. It is possible there are exceptions according to the particular version of Islam the witness follows.

  9. To my way of thinking, keeping the public out of the courtroom during part of a trial seems to violate the right to a “public trial,” if we go by the Sixth Amendment, which says nothing of exceptions or balancing tests.

    More interesting is the question of whether a witness can testify (in public) with some kind of face veil if so required by her religion. The answer would I think depend on the original understanding of confrontation, and I don’t know what the original understanding was if any.

  10. If she was essential to the trial I think it would have been better to just have her turn around or situate her such that only the necessary people could see her face and keep the trial public. Indeed, if she is essential it’s even more pressing that it be kept public.

    If she wasn’t really that important they should have just let her testify covered. It might bother people that they can’t see her face but it doesn’t really matter in the end.

    1. Or maybe just reject her attempt to control the trial and have her testify like everyone else.

      I am sure none of the men watching the trial would have been driven mad with lust.

  11. Why not just put a screen between the witness and the public, they hardly need to be removed from the courtroom.

    1. There were a lot of better solutions. I’m guessing they somehow didn’t know that she wouldn’t want to testify uncovered and didn’t think they had enough time once she was there to figure something out.

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