The Volokh Conspiracy
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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).
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.
