OK to Let Muslim Witness Testify "Wearing a Scarf Over Part of Her Face"

So holds a Pennsylvania appellate decision.


From Commonwealth v. Smarr, a nonprecedential decision handed down yesterday by a Pennsylvania appellate court:

Christopher Joseph Smarr appeals from the judgment of sentence entered following his convictions for first-degree murder, robbery, and related charges…. The Commonwealth brought charges against Smarr based on allegations that… he shot and killed the victim, Brandon Gray. The shooting occurred during a robbery, as part of a "turf war" between rival drug dealers….

Smarr argues that the court erred in allowing [Janay] Brown [the sole eyewitness to the shooting] to testify while wearing a scarf over part of her face because this denied Smarr his right to face-to-face confrontation under the Confrontation Clauses of the federal and state constitutions. Smarr argues that Brown's testimony was impermissible under the test announced in Maryland v. Craig, 497 U.S. 836 (1990), for two reasons. First, Brown testified she only wears the scarf on Fridays, when she attends religious services at the Jum'ah, and whenever she feels that she wants to; she did not testify her religion required her to wear the scarf while testifying, and it was therefore unnecessary to allow her to do so. Second, Smarr contends the reliability of Brown's testimony was not otherwise assured, as the jury were unable to clearly see Brown's facial expressions and thus fully assess her demeanor and credibility.

The United States and Pennsylvania Constitutions provide criminal defendants the right to confront those who testify against them at trial.  See U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him"); Pa. Const. Art. 1, § 9 ("In all criminal prosecutions the accused hath a right … to be confronted with the witnesses against him")….

In Maryland v. Craig, the United States Supreme Court explained that the right to confrontation includes the following elements: (1) the witness testifies while face-to-face with the defendant; (2) the witness testifies under oath and (3) under the penalty of perjury; (4) the witness is subjected to cross-examination; and (5) the jury is able to observe the demeanor of the witness, "thus aiding the jury in assessing his [or her] credibility." The Court held that the Confrontation Clause is not violated when a defendant is denied the first element, "a physical, face-to-face confrontation at trial," so long as 1) "denial of such confrontation is necessary to further an important public policy" and 2) "the reliability of the testimony is otherwise assured."

We conclude that Smarr has failed to establish that he was denied a physical, face-to-face confrontation with Brown. Smarr and Brown were in the same room, sitting within a few feet of each other, when Brown testified. Cf. Craig (distinguishing testimony via one-way video- conferencing from "live, in-person testimony" and holding that former is not face-to-face confrontation); Commonwealth v. Atkinson (Pa. Super. 2009); (holding two-way video-conferencing not constitutionally equivalent to physical face-to-face confrontation). In addition, Brown's eyes were unobstructed. Cf. Craig  (emphasizing one-way video-conferencing was not face-to-face confrontation because it prevented witness from seeing defendant while testifying); Coy v. Iowa (1988) (holding testimony given while screen was positioned between defendant and witness stand, preventing witness from seeing defendant, did not satisfy face-to-face confrontation).

No precedent has established that a witness's clothing or accessories renders a physical, in-court confrontation other than face-to-face, particularly where the clothing does not obstruct the witness's eyes, and we decline to do so under the facts of this case. We therefore hold that Smarr's right to be brought face-to-face with his accuser was satisfied. [Footnote: We note that other jurisdictions have concluded that partial face-coverings do not undermine the face-to-face aspect of confrontation. See Morales v. Artuz, (2d Cir. 2002) (finding that trial court's decision to allow witness to wear dark sunglasses did not diminish face-to-face encounter under Confrontation Clause because "the obscured view of the witness's eyes … resulted in only a minimal impairment of the jurors' opportunity to assess her credibility"); Commonwealth v. Lynch (Mass. 2003) (holding witness's alleged wearing of sunglasses would not have violated "face to face" confrontation under the Massachusetts constitution).]

Even if we were to conclude that Smarr was denied face-to-face confrontation with Brown, we would affirm the trial court's finding that the testimony was permissible under the Craig test. Assessing the first prong of the test, the trial court found that allowing Brown to wear the scarf "was necessary to further an important public policy[]" …:

"The public policy interest involved in the instant case is the protection of the right to freedom and free exercise of religion. Brown consistently testified that she wore her head scarf for religious purposes. Brown wore a head scarf while testifying during [Smarr's] Preliminary Hearing and Trial. Although Brown testified that she did not always wear a head scarf, she testified that she wore it whenever she felt that it was appropriate."

We find the first part of the Craig test satisfied. The court found that protection of Brown's ability to exercise her religion was an important public policy, and, after a hearing, made a specific, individualized finding and that allowing Brown to cover her face was necessary to further that policy.

Considering the second prong of the Craig test, the trial court found that "the reliability of Brown's testimony was otherwise assured." Specifically, the court found the jury was amply able to observe Brown's demeanor. The court stated,

"… Brown was physically present in front of Defendant and she testified under oath. Brown was subject to cross-examination by [Smarr] and [Smarr] questioned her regarding her head scarf. The jury was able to sufficiently view Brown's demeanor. [Footnote: Defense Counsel correctly noted during trial that 'demeanor' is defined as the 'outward appearance or behavior, such as facial expressions, tone of voice, gestures, and the hesitation or readiness to answer questions.'] The jury was located within close proximity to Brown. They were able to perceive Brown's tone of voice, her gestures, and any hesitation she may have exhibited in answering questions. The jury was also able to view Brown's eyes. Although Brown's mouth was covered, her nose was exposed much of the time and her scarf was pulled tightly to the point where the outline of her mouth was visible. This Court could observe when Brown was smiling or frowning…. Brown's mouth and nose were the only features that may not have been visible to the jury. The jury was otherwise able to sufficiently observe Brown's demeanor during her testimony."

In addition, during trial, the court stated the scarf covering Brown's nose and mouth was somewhat transparent. Moreover, Smarr did not deny that the jury witnessed Brown "br[eak] down into tears."

Thus, the jury could view Brown's eyes, and to some extent, her facial expressions; her posture, her gestures, and her body language; hear her tone of voice, her cadence, and her hesitation; and observe any nervousness, frustration, or hostility. We therefore hold that under the second prong of the Craig test, the other polestars of the right to confrontation—testimony given under oath, facing the penalty of perjury, subject to cross-examination, and with the jury's observation of the witness's demeanor—were amply preserved. Smarr's right to confrontation under the federal and state constitutions was not infringed, and a new trial was not warranted….

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  1. How do courts decide what’s precedential?

    I understand that in Panama, the high court’s decisions have to be reaffirmed four times to be precedential. That’s at least a clear rule, and it guards against the possibility of a single mistake becoming normative.

    But what’s the American rule? When does a case weighing the rights of a Muslim witness against the rights of a defendant, become worth citing in future cases?

    1. “I wear a scarf on Friday afternoons, and whenever I feel like it” doesn’t seem like much of a precedent to me

      1. I’m pretty sure that everyone who wears religious garments wears them when they have to or when they feel it’s appropriate, not just one unorthodox Muslim lady.

  2. In this case, the question of whether the scarf was a religious requirement or a fashion accessory was hotly disputed. If partial covering satisfies the Confrontation Clause, there is no need to evaluate Religion Clause issues. If it doesn’t, then I think the facts have to be established for religious liberty to come into play.

    Since the decision was partial headcovering doesn’t implicate the Confrontation clause, I would have left things at that. In order to establish whether the Religion Clauses were relevant, I would have remanded to the trial court to determine whether the Defendant’s claims that the scarf wasn’t actually necessary were valid.

    1. I assume they were just heading it off. “Don’t bother trying to argue another angle: we don’t like that one either.”

    2. “. . . I would have remanded to the trial court to determine whether the Defendant’s claims that the scarf wasn’t actually necessary were valid.”

      Ouch – aren’t we then getting into a U.S. court making decisions based on someone’s interpretation of a religious law/tenet/practice?

  3. What other procedures designed to maximize the fairness of a trial are we going to dispense with on the basis that one of the participants “feels” disinclined to cooperate?

    1. Feels, eh? You one of those evangelical atheists or something?

    2. It depends, is it important and does the change undermine the intended procedure?

      Allowing a woman to testify while wearing a veil does not in any meaningful way violate the right of confrontation, no more than allowing a blind man to wear sunglasses. Should wearing an eyepatch count?

      So long as the witness is present there is sufficient ability to identify them, what purpose would be served by mandating that a certain fraction of their face is uncovered?

  4. And are one of those illiterates or something? I said “feels” because that’s the word used in the article.

    1. Heh. I do like the snappy comeback, and that was a good one.

      But your OP is implying a very different thing than the post – this is pretty clearly a matter of faith, not about not wanting to cooperate.

      Or did you mean something different than what one of the participants “feels” disinclined to cooperate connotes?

  5. If one wears an article of clothing when one’s religion requires it, and also when one “feels” like it, it seems to me that in the later instance, the wearing of the article is not an exercise of one’s faith. That is, one is not wearing it because the tenets of one’s faith requires it at that time. That’s what I was saying. And I think I originally said it clearly, regardless of whether you understood.

  6. It is not for us to decide what faith commands are legit and what are only feelings.

  7. Yeah, but someone has to draw the line somewhere, or else any conduct can be a matter of faith simply because the actor says he did it because he felt that his faith required it. Even if that’s fine, some matters or faith still must be subject to legal strictures, like child sacrifice, to take an extreme example

    1. That’s why I think it’s important that this was not decided based on faith. It stated the obvious fact, a veil does not impede confrontation of a witness. That was an absurd argument from start to finish.

  8. But I disagree with the conclusion that the defendant’s right of confrontation was not impeded. And even if his constitutional right was not transgressed per U.S. Supreme Court case law, his general right to the fairest possible trial was impeded only to satisfy the feelings of the witness. The court stated that the witness’s mouth and nose were features that “may not have been visible to the jury.” That being so, the jury did not have the fullest possible opportunity to assess the witness’s demeanor. To me it follows, certainly when the covering was not required by the tenets of the witness’s faith, that the defendant’s ability to obtain as full a confrontation as possible — so that the jury would have the best opportunity to evaluate her believability, so that the chances of reaching a just verdict, that is, one based on the truth, were optimized — should have prevailed over the witness’s feelings. I also think this is so because to me, a witness’s desire to cover some of her face while testifying, at least when based only on her feelings, and not because she is compelled to do so by her faith, constitutes an indication that she may be concerned with being caught not telling the truth.

    1. Do you really think that there is a correlation between the jury’s ability to assess the witnesses demeanor and accuracy of the verdict?

      1. I think there is a _negative_ correlation. People who play human lie detector often fool themselves, and while they are watching the witnesses demeanor, they are more likely to miss inconsistencies in the testimony that would reveal actual lying.

        And it’s worse when you get a sociopath on the witness stand. They often look absolutely sincere and honest while they’re making up the entire tale. But quite often, if you let them just keep on talking, within 10 minutes they’re telling a different story. Someone who has no conception of objective truth, or of any relationship between the truth and what is coming out of his mouth, never has trouble _looking_ and _sounding_ honest, but has to work hard at keeping the story consistent.

        So I suspect that putting all witnesses behind a screen might improve the accuracy of verdicts.

  9. I agree with the outcome, but I get the distinct impression that it involved a lot of magical thinking about people’s ability to tell whether witnesses are lying.

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