The Right to Confront

Author’s note – I recently promised myself that I would try to get better about formatting would-be lengthy comments as separate posts.  This post is part of that effort.

At the 49th, Jonathan McLeod discusses a Canadian case centering on the conflict between the right, well-established in both American constitutional and Canadian common law traditions, to confront one’s accusers in a criminal trial and the freedom of religion.  Specifically, the case involves whether a Muslim woman who alleges the defendant raped her may testify against the defendant over his objection while wearing a niqab that, per the dictates of her religious beliefs, fully obscures all of her face except for her eyes.  The Supreme Court of Canada, in a deeply divided decision, found that where a defendant’s right to confront and an alleged victim’s freedom of religion come into conflict, the conflict should be resolved on a case-by-case basis by the trial court.   On remand to the trial court, the trial judge agreed with the defendant, and required her to testify without a veil or not testify at all, primarily on the basis that an essential element of the right to confront is that the defendants and their counsel be able to assess the witness’ demeanor.*

Jonathan objects to this outcome, stating:

Overriding someone’s freedom of religion can never be taken lightly, so I decided to look for a dissenting view. I could not find one. Apparently, trampling religious freedom can be taken lightly.

I am a little disturbed by the apparent unanimity on this issue. I understand that the accused have a right to face their accuser, but does not justice also have some concern for victims – and not just the victim in this case, but potential future victims? We are talking about a women was, allegedly, intimately violated by men. A woman who had her personal dignity, sovereignty and privacy breached. Should the inherent vulnerability that comes with such a crime not be considered when we ask a woman to contravene her religious teachings and expose herself to the court – including those accused of raping her?

In comments, Kazzy agrees and furthers Jonathan’s points, writing:

 I think we need to consider what we mean when we say “face their accuser”.  I’m not a lawyer, but I never understood that to mean use visuals to determine truth or innocence.  If that is the case, we could never try a blind person.  Rather, I always understood it to mean that we do not prosecute people base on anonymous accusations.  And this woman is not anonymous.

While I appreciate Kazzy and Jonathan’s positions here, I must respectfully disagree; if anything, I’d take the position that witnesses for the prosecution in American and Canadian criminal courts** should always be required to testify without facial coverings unless the defendant consents otherwise, regardless of religious beliefs.

I have a number of reasons for this, but ultimately they all come down to the fact that I don’t view this as causing any meaningful conflict with the freedom of religion.

To understand why this is, we first need to keep in our mind the critical difference between when a defendant is deemed guilty in the eyes of the law and when a defendant is deemed guilty in the court of public opinion.  Specifically, in the criminal context, we must always remember that in our tradition, a defendant is legally presumed innocent until and unless found guilty beyond a reasonable doubt.  Implicit in this presumption is that, whatever our sympathies and prior knowledge of the facts, until there is a finding of guilt beyond a reasonable doubt, the victim has not legally been proven to be a victim of a crime.  In other words, the law must presume that, whatever our outside knowledge of the facts, the victim (and other witnesses for the prosecution) is nothing more than an accuser whose claims are unproven and unreliable until the defendant has had an opportunity to confront her. Nor is it the victim’s responsibility to prove herself a victim; that responsibility instead belongs to the prosecutor.

We must also remember that criminal sentencing in our tradition is, by and large, intended to be punitive, not remedial – it is not, in other words, primarily intended to make the victim whole or otherwise compensate the victim, as would be the case in a civil trial.  It is thus not a right possessed by the victim (whose rights are supposed to be addressed in the civil context, where there is no right to confront one’s accuser), but is instead a right possessed by the government, which has the sole authority to decide whether and how to charge a criminal defendant.

What this means is that there is no legal right to testify in a criminal case against someone one accuses of committing a crime, and it is up to the prosecutor to determine who will and will not testify.  In addition, the effect of a victim who refuses to testify is not an automatic end to a criminal case, but is instead that the criminal case typically becomes significantly harder for the prosecution to make.

Given this, I think it is very difficult to conclude that a prosecution witness’ religious freedom is impinged at all by a decision holding that testimony against a criminal defendant must permit the defendant to observe the witness’ face.  The witness has few or no constitutional or common law rights that will be affected by the outcome of the criminal trial, and as long as she may (a) opt not to testify at all if doing so would require a violation of her religious beliefs, and (b) sue the defendant civilly and testify in a civil venue in a manner consistent with her beliefs, those beliefs are not infringed upon or otherwise implicated in this context.

On the other hand, a defendant’s right to confront his accuser is nearly absolute, regardless of the crime of which he is accused.***  Although I understand Kazzy’s argument that the right to confront does not (or at least ought not) include a right to visual observation of a witness, I think his argument is deeply misplaced.

With respect to his point that blind defendants would not have the ability to confront witnesses in this manner, this ignores that even if the defendant is blind, his agents (ie, his attorneys) need not be.  More importantly, just because some percentage of people face physical impediments to visual identification does not mean that there is no fundamental right for defendants to have the opportunity to visually identify their accuser.  We don’t say that the right to free speech is limited to nonverbal communications for all because some people are mute, so I don’t see how we can say that the right to confront your accuser is limited to non-visual identification just because some people are blind.

In addition, I think this argument too easily casts aside the need for visual identification of an accuser in addition to the need to know the accuser’s name.  Indeed, a name, in and of itself, can easily be insufficient to fully identify the accuser to the defendant – for instance, if the accuser is unknown to the defendant outside of the alleged crime, a name does little to identify the accuser to the defendant.  In addition, it raises the possibility of the accuser proceeding under a fictitious name or having someone else testify in her place (not saying that’s what’s happening here, just that it creates a theoretical uncertainty that is really discomforting in a criminal defense context).  Simply put, to have the ability to put forth an effective defense, a defendant must have the ability to verify that his accusers are who they say they are and to determine whether he recognizes the accuser and knows of anything that would contradict her testimony even if he does not know her by name.

This is all, of course, without getting to the issue that was central to the judge’s analysis in this particular case – the need for defendant’s counsel to be able to observe a witness’ demeanor in formulating questions and allowing the jury to evaluate her truthfulness.  Although I think this is a weaker argument, it is also not an element of a criminal defense that can be disregarded.

In any event, I don’t think it should be necessary to reach that issue – in our system, a defendant’s need to recognize the witnesses testifying against him is paramount.  By contrast, as much as I may sympathize with the victim in this case, I have a very difficult time seeing how her right to testify in a criminal proceeding while wearing a veil over her face is or should be legally cognizable.

I realize that the effect of my position here, as applied to rape cases in particular, is to make it less likely that Islamic rape victims will be willing to come forward to accuse their attackers.  I am neither comfortable nor happy about that outcome.  But I am even less comfortable with the idea that a defendant’s fundamental procedural rights should be determined by the type of crime with which he is charged.

*In other words, in contrast to much of my argument here, this particular decision does not appear to have been primarily premised on the need for defendants to be able to identify the witness.

** Although there are obviously huge differences between American and Canadian legal traditions in general, they do not appear to be materially different on a philosophical level for purposes of this specific issue.

***Rape shield laws, in my mind, are distinguishable from a requirement that defendants be allowed to visually observe testifying witnesses because they ultimately don’t affect the right to confrontation but instead amount to a legislative finding that certain evidence is irrelevant per se in a rape case.