The Right to Confront

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Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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  1. Avatar Jonathan McLeod
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    says:

    I’ll write more on this later (there’s a fundamental aspect to Canadian law that I think this type of ruling violates… but that might require a full post), but there’s something that I do want to clear up about this.

    The SCC did not rule that women must be de-veiled. As much as you write a well-constructed argument, the way I take what you’re saying is that people should never be allowed to testify while wearing a niqab in a criminal proceeding. Since the SCC made no such rule (when they really could have), then I would argue it does not fully agree with your argument. The Supreme Court will allow people to wear a niqab while testifying. So, if we’ve established it’s ok in some situations, it becomes harder for me to believe it is so out of bounds in this case.

    But, again, I will write more later. Thanks for taking the time to craft a thoughtful response.Report

    • Avatar Mark Thompson in reply to Jonathan McLeod
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      says:

      I intended to be more clear about this, but I agree that the SCC was wrong to make this a decision within a trial court’s discretion. I would have almost certainly been amongst the two dissenting justices who argued for a hard and fast rule of no veils in criminal trials. To the extent the point of your post was that the SCC was cowardly for not adopting a hard and fast rule of some sort, I agree with you, and apologize for any mischaracterization of that point. I was more interested in engaging you on the part of your argument with which I differ, which was the issue of religious liberty.

      That said, if my only choices were between the SCC’s factor test and a hard and fast rule in favor of the witness, I would go with the factor test on the grounds that, once we determine that there’s an actual conflict of legal rights (and here, I think it clear that there’s either a conflict or there’s no religious liberty interest at all, as the confrontation right is clearly implicated in some manner), hard and fast rules to decide those conflicts tend to work a tremendous amount of injustice and allow the party the hard and fast rule benefits to game the system, particularly when that party is the prosecution.

      There are some cases – and, though I’m not certain, this may well be one given that the crimes alleged are 25-30 years old – where the prejudice to the defendant of allowing veiled testimony will be impossible to overcome, and the defendant ought to be automatically acquitted if he is not allowed to visually identify the witness.Report

  2. Avatar Kazzy
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    says:

    Thanks for fleshing this out, Mark. As noted, I am not a lawyer, so I was working more of hunch and gut than legal precedent or philosophy.

    A few questions:
    1. Would the “right to face one’s accuser” be satisfied by a photograph, perhaps taken in judge’s chambers to confirm everything is on the up-and-up? Or would those testifying need to be uncovered in open court for the duration of their testimony? I don’t know if this would satisfy the woman’s religious beliefs, but it might be better than the alternative.
    2. What if we are talking about people who are compelled to testify, who have no interest in testifying and certainly no interest in doing so in a way that is not in accordance with their religious beliefs? Should we jail subpoenaed (is that the right word?) witnesses who seek to be covered? Or is the right to see those folks not one the defendant possesses?

    And a quibble (with, again, the full concession that IANAL)…
    “[T]he victim … is nothing more than an accuser whose claims are unproven and unreliable until the defendant has had an opportunity to confront her.”
    Is this necessarily so? Certain facts can be determined independent of the defendant’s guilt or innocence. Imagine the victim of a shooting. His testimony as to who shot him may be “unproven” and “unreliable” but certain aspects of the situation might not be so; the fact that he was shot can be proven; where and how the bullet entered his body; the type of bullet; etc. These can all be testified to by the victim or other witnesses with a high degree of provability and reliability, though they are not necessarily determinant of the defendant’s guilt. If the defendant was found not guilty, would we tell the victim, “You weren’t really shot” or “Your accounting of your shooting is unproven”? That seems a bit silly, no? And maybe this is all tangential nitpicking and I realize in this particular case even rape is not always so clear cut on the physical evidence as a shooting (hence my hypothetical), but that stood out to me.

    But, again, informative piece and thanks for contributing to what is a fascinating issue AND for bringing JML’s piece to the FP (MORE JML!!!).Report

    • Avatar Mark Thompson in reply to Kazzy
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      says:

      Regarding question 1: I’m open to arguments that a photograph under seal ought to be sufficient to satisfy the confrontation requirement, though I’m very skeptical. People look different from different angles, in different lighting, etc. And though the argument that “confrontation” must of necessity include the ability to observe a witness’ demeanor is admittedly weaker than the identification argument, it’s still not something that can be tossed away lightly. If, for instance, a witness is smiling while she’s testifying about something terrible, that can easily be something that a defense attorney will want to ask about.

      Regarding question 2: I meant to address this issue in my post, but it was getting too long. But I fully support the idea that a prosecutor cannot be compelled to force a witness to testify in a manner that would violate her religious beliefs. To the extent we’re talking about witnesses called by the defense under a subpoena, the confrontation right would not be relevant since I don’t think they could be considered “accusers” to the extent they are called by the defense. As a result, in that circumstance, I don’t think the defense would have the ability to demand they testify without a veil.

      Regarding your quibble, while we can establish a whole host of facts that would tend to support a conclusion that a person is the victim of a crime, we cannot deem them to have been legally proven to be a victim of a crime until the jury returns its verdict. Nothing is officially “proven” until either the jury returns its verdict or, at bare minimum, the judge issues a ruling telling the jury to treat a given fact as proven. Remember, what the jury decides is not just whether the defendant committed the acts accused, but also (a) whether those acts occurred at all, and (b) if they occurred, whether other facts existed that would render the accused’s actions non-criminal.Report

      • Avatar Kimsie in reply to Mark Thompson
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        says:

        If people look different in different lighting, being viewed in a reasonably lit courtroom is likely not to satisfy the “can id accuser” if the accuser was last seen in a dark place.

        I’d say that there should be allowances made, as much as is possible. To the extent that the defendant is willing, perhaps…. A trusted (neutral) woman be allowed to identify the accuser? A brief showing of a woman’s face, but only to the defendant (unless further contested!).Report

      • Avatar Kazzy in reply to Mark Thompson
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        says:

        “Remember, what the jury decides is not just whether the defendant committed the acts accused, but also (a) whether those acts occurred at all…”

        So a jury could theoretically determine that someone shot with a gun, who has a bullet still lodged in his shoulder, was not actually shot? We’re getting really fuzzy there, no? (And I realize we’re now full blown tangent so disregard if necessary.)

        To the more pressing piece, what legal language is there regarding the right to face one’s accuser? I always had assumed it was simply intended to prevent anonymous accusations, which are indeed troubling. I didn’t realize there was so much more to it.Report

        • Avatar Mark Thompson in reply to Kazzy
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          says:

          I don’t have time for more comments right now, but here’s the text of the Sixth Amendment:

          In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

          The key thing here is that it’s a right to confront all of the witnesses against you, not just the initial accuser. “Confront” generally means that the defendant gets to not only know who the witnesses are but also to fully cross-examine them; to the extent a veil hinders either the ability to know who the witnesses are, but also the ability to cross-examine effectively, it’s a big problem for a defendant.Report

          • Avatar Kazzy in reply to Mark Thompson
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            says:

            Thanks.

            I’m going to get a bit slippery-slopey here, but where do we draw the line?

            Many Orthodox Jewish women don wigs as part of their faith… would they be required to remove those?
            What about a yarmulke?
            What about a woman who dresses modestly per her religion who is testifying against a defendant who feels he cannot fully confront her without exposed arms? Or cleavage?

            Now, I realize there are real differences between the face and hair or a portion of the head or arms or breasts. I get all that. But I suppose my question is what harm, exactly, is done to the defendant by being unable to confront an unveiled accuser or witness? I think the harm done to the religious individual is rather clear, at least in terms of her being required to go against her religious beliefs. But I’d need to know a lot more about the harm done to the defendant.

            Because the cited text (and I recognize full well there may be much more on the matter elsewhere) doesn’t say anything about the right to read facial expression or identify each feature of the accuser/witness. All it says is that he must be able to confront him/her; putting someone inside a little box, having made them swear an oath of honesty, and requiring them to respond to questions posed by the defendant and/or his representatives sure SOUNDS like “confronting” to me.

            It seems there is a burden on the defendant to show that he has been prevented from confronting the person in question because of the veil.Report

            • Avatar Mark Thompson in reply to Kazzy
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              says:

              But I suppose my question is what harm, exactly, is done to the defendant by being unable to confront an unveiled accuser or witness?

              The Canadian case actually provides a pretty good example. In that case, the defendants are accused of raping the witness while she was a child over the course of a five year period 25 to 30 years ago. Her intended testimony appears to be vast majority of the evidence against them. Approximately 10 years ago, the witness first adopted religious beliefs requiring the wearing of the niqab. Without the ability to see her face, how are the defendants to verify that this is even someone they know? What if they didn’t know her name at the time? How do they cross-examine someone a fact witness whose identity may largely be unknown to them? How do they verify that she even is who she says she is?

              The Supreme Court of the US has gone so far as to say that the confrontation clause at minimum exhibits a preference for face-to-face cross-examination of witness, though it admittedly allows for more exceptions than probably I would like (the rule in the US is generally pretty close to the rule that the Canadian Supreme Court seems to have adopted). See, e.g., Maryland v. Craig, 497 U.S. 836 (1990). However, even to the extent the right specifically to face-to-face confrontations is more of a “preference” than a right, the Supreme Court has done a pretty good job explaining the elements of the Confrontation Clause that do rise to the level of a right.

              Specifically, the Supreme Court has said that the purpose of the right to confrontation is to ensure that a defendant can (1) test the reliability of testimony against him, and (2) do so in an adversarial manner. The Court has further held that the purpose is to ensure “a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.”

              Point being that the ability for both a jury and a defendant to observe a witness’ demeanor is key to ensuring both full cross-examination and – perhaps more importantly – that the testimony is reliable. A veil prevents the observation of demeanor and thus makes it significantly harder to ensure that the testimony is reliable.

              It’s worth a quick mention that the face-to-face preference (which can be more easily disposed with than the other elements of the confrontation clause) doesn’t refer to the ability of the defendant and jury to observe the witness, but rather to the the witness’ ability to observe the defendant, so that isn’t really what’s at issue here.

              It’s true that the text of the Sixth Amendment says little of this specifically, but that doesn’t really get you to a point where you can say that it doesn’t protect the ability to observe demeanor – the word “confront” is unqualified, so it can be interpreted as broadly or as narrowly as one wishes once one has discerned the intention (if any) behind it. The Supreme Court has, correctly IMHO, chosen the broader interpretation that means something akin to “unqualified right to test the reliability of testimony against a defendant in an adversarial manner.”

              To give an idea of why the ability to observe demeanor is essential to this right, let me use a good reductio – imagine a situation where the Confrontation Clause could be satisfied by just requiring a witness to respond in writing, at her leisure, to any questions of the defendant’s attorney. That’s the type of thing that would be constitutionally permissible under an interpretation of the Confrontation clause that dispensed with the requirement that a defendant and jury be able to observe a witness’ demeanor.Report

              • Avatar Griff in reply to Mark Thompson
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                says:

                The Court has tightened its confrontation jurisprudence in recent years, too. Scalia’s dissent in Maryland v. Craig is extremely similar in many ways to his majority opinion in Crawford v. Washington — most pointedly on the idea that the confrontation clause’s purpose is not to ensure “reliability” in some vague and general way (such that the testimony can be admitted if it’s “reliable” enough), but to ensure reliability through the specific means of confrontation, i.e. cross-examination. If Craig came up as a case of first impression before the Roberts court I suspect it would come out the other way and hold that face-to-face confrontation is required wherever possible. Stare decisis will probably preserve the narrow holding of Craig, but I would be surprised if the Court extends it.

                Tangentially, the dissent in Maryland v. Craig closes with one of the classic Scalia passages: “The Court has convincingly proved that the Maryland procedure serves a valid interest, and gives the defendant virtually everything the Confrontation Clause guarantees (everything, that is, except confrontation). I am persuaded, therefore, that the Maryland procedure is virtually constitutional. Since it is not, however, actually constitutional I would affirm the judgment of the Maryland Court of Appeals reversing the judgment of conviction.”

                The guy’s 100% crusty old crank at this point, but he sure can write a dissent.Report

              • Avatar Mark Thompson in reply to Griff
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                says:

                Aye to that.Report

        • Avatar Michael Cain in reply to Kazzy
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          says:

          So a jury could theoretically determine that someone shot with a gun, who has a bullet still lodged in his shoulder, was not actually shot?

          IANAL, but I suppose it could happen in theory. I assume that a good prosecutor presents evidence that the victim was actually shot, then goes on to the who, how, where, when and why questions. Are juries required to explain their reasoning? To say, “Even though the prosecution and the defense agree that there’s a bullet in the shoulder, we decided there wasn’t. Not guilty because the victim wasn’t ever shot.” Or can they just say, “Not guilty,” and stop?

          This is the reason why a lot of rape accusations are never prosecuted. Unless the victim has taken certain actions within a certain amount of time — eg, seeing the proper medical authorities — it can be difficult/impossible for the prosecutor to show that intercourse happened.Report

  3. Avatar James Hanley
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    says:

    Very persuasive, even though it still leaves me somewhat uncertain.Report

  4. Avatar George Turner
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    says:

    I don’t think a blind defendant is the most appropriate analogy. I’d think a blind jury would be closer to the mark. Humans have quite a bit of innate lie-detecting abilities, some of which are based on observing people’s expressions and facial ticks. Justice is supposed to be blind but the jury certainly isn’t.Report

  5. Avatar Mad Rocket Scientist
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    says:

    I have a very hard time bending to religious liberty when a persons freedom is on the line. When one person is leveling a criminal complaint against another, then during those proceedings there is the greatest need for transparency & openness. A veil is, if nothing else, symbolic of hiding something.

    Besides, I am pretty certain that God in whatever tradition it is followed will forgive the wardrobe transgression in the interests of furthering justice.

    Full disclosure: I’m an Militant Apathetic Agnostic, and thus I have a hard time bending to religious traditions in general, but I have almost no tolerance for it when someone else’s rights are on the line.Report

    • Avatar Murali in reply to Mad Rocket Scientist
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      says:

      but I have almost no tolerance for it when someone else’s rights are on the line

      Its easy to say this, but the question is whether someone really has a right to see the accuser’s face literally, or just meet the accuser face to face. More generally, what does the right to a fair trial really require? Certain norms of criminal legal procedure were developed in cultures where women were not required to veil. That the customs and norms developed in that cultural context means that it is going to run into hard problems when confronting people of a different culture. It also means that it is unlikely that literally seeing someone’s face is the kind of thing which is a hard constraint on what kinds of rights there are. Think about it this way, if you didn’t know whether you would be a defendent or accuser and didn’t know what proportion of women were required to wear veils and for that matter didn’t know what proportion of accusers were making a correct and just accusation, the question of whether you have to see the face of your accuser is less obviousReport

      • Avatar Kazzy in reply to Murali
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        says:

        Some really great points, Murali.Report

      • Avatar Griff in reply to Murali
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        says:

        Of course, in pursuing that line of reasoning we should recognize that looking at norms of criminal legal procedure that developed in cultures where women WERE required to veil reveals that traditionally women were not allowed to testify at all, or else that their testimony counted only for half as much as a man’s testimony (so that two women were required to overcome the testimony of one man). What this tells us about requirements for a platonic “fair trial” is debatable of course.Report

      • Avatar Mad Rocket Scientist in reply to Murali
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        says:

        I find seeing the face as a matter of ID much less compelling than seeing the face as a matter of trying to determine some manner of the nature of the person on the stand. As George mentioned above, we humans rely heavily upon the visual cues a person displays to determine if we trust/believe them.

        If I was a member of the jury in such a trial, I would have a very hard time granting testimony from such a witness as much weight as it might be due.Report

        • Avatar Kazzy in reply to Mad Rocket Scientist
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          says:

          Would you feel similarly about a man with a heavy beard that obscures the majority of his face? I know people with beards heavy enough you can’t see their mouth or its expressions if they don’t want you to.Report

          • Avatar Mad Rocket Scientist in reply to Kazzy
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            says:

            Yes, actually, I would. If it was obscuring enough, I would have no problem requiring him to shave it off. Beards grow back.

            Listen, it’s a criminal trial, it’s a big fishing deal, a person’s freedom & the conditions under which they will live the rest of their life is on the line. Testifying isn’t like going to the DMV, it’s a terribly serious act. If it’s important enough for a person to agree to testify, it’s important enough for them to do what needs to be done. If that means they shave the beard or they don’t wear the veil, then that is what should be done.

            I accept the one exception with regard to children & CCTV, and even in that case, while the child can not see (& thus be intimidated by) the accused, the defendant, their legal team, & the jury can see the child, so it’s not really the same.Report

            • Avatar Murali in reply to Mad Rocket Scientist
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              says:

              Sikh men are forbidden to cut their hair (facial as well). That means they always go in with turban and full mustache and beard.Report

              • Avatar ThatPirateGuy in reply to Murali
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                says:

                Apparently there is a concensus forming that we should grant attorneys the power to intimidate witnesses by forcing them to break cultural and religious taboos or refrain from testifying.

                All so we can cater to naive assertions of lie detection in humans.Report

              • Avatar Mark Thompson in reply to ThatPirateGuy
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                says:

                For what it’s worth, I don’t approve of the idea of forced shaving or cutting of hair for witnesses or anything else that would involve alterations to something that is literally part of someone’s body.

                And none of this has to do with an assertion of lie detection; it has to do with the fact that non-verbal cues and expressions are part of how we communicate. On this very site, it happens all the time that someone’s meaning is misconstrued precisely because it’s not possible to see and hear the person delivering the comment.

                A good chunk of interpreting words is to know if the speaker is joking or serious, happy, angry, or sad, and perhaps most pertinently, certain or confused.Report

              • Avatar Kazzy in reply to Mark Thompson
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                says:

                But my question is how does a veil do that in a way that a very heavy beard does not? Because I’ve seen folks with beards that obscure just as much of the face as a veil does.Report

              • Avatar rexknobus in reply to Kazzy
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                says:

                Or, since the beard is an organic part of the face and the choice of the wearer of the beard, then the beard is part and parcel of the non-verbal cues that we all respond to when looking at one another. The veil, the burqa, the draped, formless cloth that completely hides identity and affect, is an absolute, non-organic wall shielding the human being within.

                The comparison to me is not beard vs. veil, but witness in the witness box in the courtroom vs. witness in a remote location speaking via a radio and a speaker placed in the court room. I can conceive of a couple of very extreme circumstances where that might be o.k., but certainly very strongly not preferred.Report

              • Avatar Kimsie in reply to Kazzy
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                says:

                Rex,
                May we have the women wear beards in court? Full facial covering beards?Report

              • Avatar rexknobus in reply to Kazzy
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                says:

                Kimsie — o.k., first the chuckle. Heh. Then the response — if the woman wears/has a beard, then no problem.

                Testifying in a trial imposes a lot of unaccustomed things on the witness: an oath of truthfulness backed up with perjury laws; speaking in public; speaking in public in response to direct (sometimes hostile) questions under oath; speaking on the record.Report

              • Avatar Kazzy in reply to Kazzy
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                says:

                Rex,

                I know I’m being a bit devil’s advocatey, but I’m just curious about how and where we draw lines. Which is not to say that we should never draw lines. But that, when we do, we should draw them based on clear and sound principles which we are prepared to defend.

                Why are facial expressions a “right” but not other forms of non-verbal communication? Body language, much of which can be hidden via clothing… can a defendant demand a witness testify in the nude or a skin-tight body suit?

                What if a witness wore his/her hair Cousin It style, obscuring his/her face. Are we going to mandate he/she pull it back?

                I think we can get to a place where we say the face and the face must be unobscured that stops short of requiring beard shaving. And I think you (and Mark and others) are making a good case for what that ought to be where we draw our line.

                But I also think Murali and Zic (in particular, but also others) indicate that certain cultural constructs exist that might undermine the end so desired by such line drawing and/or the undue and ultimately discriminatory (thought not intended to be!) burden that such lines put on people, thereby impacting their full interaction with our justice system.Report

              • Avatar Kimsie in reply to Kazzy
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                says:

                Rex,
                I think such a thing, if put into law, would be not nearly as demeaning/denigrating to religion as a general “veils come off!”Report

              • Avatar rexknobus in reply to Kazzy
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                says:

                Kazzy – I guess for me the principle of where to draw the line is something like: “Truthful communication receives priority in the courtroom.” If Cousin Itt is testifying, and no one objects to the hair, then no problem. But if the attorneys or the judge see cause, i.e., some part of the testimony is obscured or obstructed by not seeing the face, then an order to pull the hair back while testifying doesn’t disturb me. Substitute “veil” for “hair” and I don’t think I have much problem. And that applies to clothing as well. Perhaps a witness is asked to demonstrate a physical action — a burqa would prohibit that action from being seen, so something must give.

                I was trying to get at this when listing the burdens placed on a witness in a trial (the oath, etc.). People in a courtroom aren’t just talking. This is a public event that has a rigidly defined structure and desired outcome. Everything that happens in that room is quite unnatural and very different from day-to-day behavior. And all for an excellent cause (at least in principle).

                A cloaked figure testifying in a courtroom has an automatic strike against them as far as trustworthiness goes, at least to my Western eyes. The whole purpose of the cumbersome court system is to sweep aside obfuscation and concealment in order to preserve the rights of the defendant and interests of the state. Testifying while concealed becomes problematical.

                It’s hard to imagine any defender or prosecutor who would be happy that their line of questioning would depend upon the jury accepting the testimony of a cloaked person.

                And, FWIW, I really think the beard question is something of a red herring. I’ve never seen a beard that completely obscures a human face. The fullest beards I’ve ever seen still allow me to see expressions and read the human face behind them.Report

              • Avatar Mark Thompson in reply to Kazzy
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                says:

                Yes, some of this involves cultural constructs. But in the thing is that the trial takes place in the context of a particular set of cultural constructs – to wit, American or Canadian cultural constructs. The prosecutor has to prove the defendant guilty beyond a reasonable doubt within those American or Canadian constructs, not within the cultural constructs of the witnesses.

                Is that fair to witnesses outside of those cultural constructs? Perhaps not. But the point of a criminal trial has nothing whatsoever to do with being “fair” to witnesses, who have no actual interests at stake in the trial; instead, it has everything to do with being “fair” to defendants, who in some cases have their entire lives at stake in the trial and in all cases have their very freedom at stake.

                I just can’t emphasize this enough – the criminal courts do not exist to vindicate victims or witnesses.Report

              • Avatar zic in reply to Mark Thompson
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                says:

                And how are those cues shifted when you believe it’s appropriate to not reveal your face to strangers in public?

                Does that matter? Could such discomfort be misconstrued as lying?Report

        • Avatar Morat20 in reply to Mad Rocket Scientist
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          says:

          We are, you know, actually very bad at it. Reading facial cues for “truthiness”.

          You know eyewitnesses? The whole “gold standard” of testimony? Turns out those guys suck too.

          Absolutely a witness, victim, whatever should be right there for cross examination. Obscuring their face, however, would probably make jury’s better at their jobs.

          Same way cameras are much, much better at seeing and remembering things than people are.Report

  6. Avatar Griff
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    says:

    Witnesses don’t actually have an unconstrained choice about whether or not to testify, at least not in the US. Parties can subpoena witnesses, and if the witness fails to respond to the subpoena the judge can issue an order for the police to go get her and bring her into court. If there’s no legitimate claim of privilege, the witness must testify truthfully or risk being held in contempt. Of course, a prosecutor will rarely force a victim (particularly of rape) to testify for various reasons both compassionate and strategic, but I don’t think your “she can just decide not to testify” solution quite cuts it.Report

    • Avatar Griff in reply to Griff
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      says:

      I belatedly see that you addressed this in a comment above. Basically what you’re advocating is a testimonial privilege based on religious belief. That sounds like a huge can of worms to me but I need to consider before I really know what I think about it.Report

    • Avatar Mark Thompson in reply to Griff
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      says:

      I address this issue in my comment to Kazzy above. If it’s pursuant to a prosecutor’s subpoena, then the religious freedom issue certainly comes into play; since subpoenas are issued at a prosecutor’s discretion rather than being universal, religiously neutral legal requirements, I don’t think this should fit within an exception to the Free Exercise clause. If it’s pursuant to a defendant’s subpoena, then it doesn’t fit within the defendant’s confrontation rights, so testimony under the veil would presumably be permissible.Report

      • Avatar Griff in reply to Mark Thompson
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        I think I disagree with your (quick) free exercise analysis there. The relevant rule is “if you’re issued a subpoena you have to testify,” and potentially “if you testify against a criminal defendant, you can’t cover your face unless the defendant consents.” These look to me like rules of general applicability whose purpose is not to discriminate against any particular religion, so they would apply notwithstanding the free exercise clause. I think if this issue were to arise in the US the question would be purely about the meaning of the confrontation clause; the free exercise clause probably wouldn’t enter into it.Report

        • Avatar Murali in reply to Griff
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          says:

          But doesn’t the lemon test also require that it have non-disparate impact?Report

          • Avatar Griff in reply to Murali
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            says:

            No, and in any event the Lemon test deals with establishment clause problems, not free exercise problems. The more relevant case would be Employment Division v. Smith, and the biggest question in the hypothetical veiled witness free exercise case would be whether the government has a compelling interest in enacting the relevant rules. Pretty confident the answer would be yes.Report

        • Avatar Mark Thompson in reply to Griff
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          says:

          I could be wrong on this, but my argument would be that the word “if” is doing a lot of heavy lifting in the sentence “if you’re issued a subpoena you have to testify,” since the decision to issue a subpoena is wholly within the government’s discretion and outside of the witness’ control, and whether the government can or will exercise that discretion is wholly dependent on the particular facts at issue. To me, that exercise of government discretion in deciding whether a given individual will be subjected to the rule makes this readily distinguishable from a case where the government says that possession of peyote is illegal regardless of religious beliefs.Report

          • Avatar Griff in reply to Mark Thompson
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            says:

            So, what you’re saying is that courts lack the power to issue subpoenas to witnesses who won’t testify in the absence of consent by the defendant to let them wear a veil? That doesn’t seem to work to me. How is the court to know ahead of time whether the victim will refuse to testify, or whether the defendant will consent? And that’s not the point at which the potential violation occurs in any case, right? That happens when the defendant objects, and the court directs the witness to remove her veil.

            It simply can’t be the case that, because the court decides who to issue an order to, the generally applicable rule that you have to follow court orders ceases to be a rule of general application.Report

            • Avatar Mark Thompson in reply to Griff
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              says:

              The judge may not know ahead of time whether the victim will refuse to testify, but keep in mind that trial subpoenas are initiated by the attorney for one or the other party. It’s inconceivable that in almost all cases either a prosecutor, who we must emphasize represents the government in a way neither the judge nor defense counsel do, or at least someone on his side would be wholly unaware that a subpoenaed witness typically wears a niqab, even if they don’t have specific knowledge as to whether they’d be willing to remove it to testify.

              In other words, the prosecutor would be taking a calculated risk that he is subpoenaing someone for whom unveiled testimony would be against her religion. If the witness then refused to testify without a veil, it would be the prosecutor seeking to have her held in contempt.Report

              • Avatar Griff in reply to Mark Thompson
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                says:

                A subpoena is just a court order to appear and testify. A party requests it, but it’s the court that issues it. It’s also the court that levies the contempt judgment, at its own discretion. I just don’t see how “you have to follow court orders or risk contempt” is anything other than a law of general applicability.

                Also, this is tangential, but I don’t think I agree with you that a prosecutor is “the government” in a way that the court isn’t — or at least I would need more than a flat assertion to be convinced of that.Report

              • Avatar Mark Thompson in reply to Griff
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                says:

                I suspect that’s a topic for another post that I’m probably not prepared to write anytime soon- I’m starting to get further out of my depth than I had originally planned.

                I have to admit that I’m surprised I couldn’t find any on-point case law on this specific issue one way or another. You’d think that the ability of a prosecutorial witness to testify while wearing a religious veil would have come up before.Report

    • Avatar George Turner in reply to Griff
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      says:

      Well, if religious freedom and privilege trumps the normal process then we can toss our legal system out the window.

      How can you tell if a defendant is guilty? Because he’s a stinkin’ heretic. What more do you need to know?

      How can you tell if a defendant should be acquitted? Because they and their lawyer made a persuasive argument that G-d has forgiven them, so how can a jury have the temerity to overrule G-d’s decision in the matter?

      People who get bent out of shape because the courthouse has a display of the Ten Commandments in the lobby shouldn’t passively wink when the whole edifice starts morphing into a religious tribunal, just because they want to feel inclusive and enlightened down at the coffee shop. If the witnesses can wear veils can the judge wear a bishop’s hat that matches his robe? Should we even allow women or non-believers to testify?Report

  7. Avatar Teresa Rice
    Ignored
    says:

    I thought there were hijabs that didn’t cover the face. A compromise may be to okay the wearing of a hijab as long as it doesn’t cover the face.

    I agree with your post Mark. Allowing the accuser to cover her face would make it extremely difficult for the accused to face his accuser and defend himself. This may actually be a good ruling for Muslim women. If the ruling had allowed the wearing of a veil or a hijab that covered the face it may have made it pretty easy for the conviction to be overturned on appeal.Report

  8. Avatar Burt Likko
    Ignored
    says:

    In the United States, we’d be comparing the Confrontation Clause (Sixth Amendment) with the Free Exercise Clause (First Amendment). On the one hand: “…in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” On the other hand, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof… .”

    While Sherbert v. Verner (1963) 374 U.S. 398) as the definitive articulation of the test for violations of the Free Exercise Clause is a bit murky, the Religious Freedom Restoration Act of 1993 goes a long way towards putting the two-step test back in such a place. So under that test, the witness who would wear a niqab, hijab, chador, abaya, or similar garment covering the face, must first prove that (a) she has a sincere religious belief that she is required to wear the garment even while testifying, and (b) that removing it and testifying would substantially burden her ability to act consistently with her beliefs. If she did that, then the prosecution would need to demonstrate (a) a compelling state interest requiring the removal of the garment, and (b) that an order that the witness remove the garment was narrowly-tailored to achieve that interest. The tests are evaluated in that order, and the first party in that sequence to fail to meet those burdens will lose the Free Exercise challenge.

    As a threshold matter, it’s not clear to me that Islam requires the wearing of a garment such as a niqab, hijab, chador, or abaya. So far as I can tell, both Quran and Shari’a require only that a Muslim “dress modestly.” I do see Muslim women in real life, and depicted in photographs from other parts of the world, wearing Western-style clothing with faces fully revealed. This seems to vary by country, so it seems clear enough to me that the definition of “modest” in this context is culture-driven rather than set out with exactitude in the sacred texts of the religion. I am not a Muslim, however, so perhaps my understanding of what the phrase “dress modestly” means is incomplete and if I am incorrect on this point I invite a Muslim or someone familiar with the teachings of the Quran to correct me. But the imperative to wear a face-covering garment appears to be cultural rather than religious to me.

    If the witness could demonstrate that she had a sincere religious belief that she was required to wear this garment, a judicial order that she remove it would obviously substantially burden that belief.

    The presence of the Confrontation Clause within the Constitution itself is to my mind a demonstration of a compelling state interest. The Constitution requires that a criminal be able to confront — visually see and observe — an accuser in open court. If it’s in the Constitution, it’s compelling. If it’s necessary to the valid prosecution of a criminal, the more heinous the crime, the more compelling that facet of the state’s interest becomes.

    So is requiring the witness to remove her religiously-mandated garment for purposes of testifying against a criminal the least restrictive possible means by which the criminal prosecution can go forward? I tend to think “yes.” We’ve decided as a matter of our fundamental and supreme law that there is just no substitute for a jury and a defendant with the assistance of counsel actually seeing the face of a real live witness. And there is no rule under discussion which would require that the witness be prohibited from dressing modestly in other ways — a long-sleeved, ankle-length dress that goes to her neck, for instance, would be entirely consistent with the Confrontation Clause.

    I don’t know what the cognate tests in Canada might be, although my expectation is that the test would be similar. But I think that in the U.S., there is no actual conflict between Free Exercise and Confrontation, and to the extent that there might be one, the wearing of the niqab will have to bow to the need to obtain valid testimony such that crimes may be prosecuted. So the government would win the Sherbert test.Report

    • Avatar Jonathan McLeod in reply to Burt Likko
      Ignored
      says:

      Where do you get that “confront” means “visually see and observe” the person’s face?

      I’m not trying to be cheeky. It seems to me you could confront someone wearing a niqab (assuming you could properly ID the person, which shouldn’t be an issue).Report

      • Avatar Griff in reply to Jonathan McLeod
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        says:

        Under US law that comes from a long line of Supreme Court decisions dating back more than 100 years, holding that the confrontation clause’s purpose is to give the defendant “an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox v. US, 156 US 237 (1895).Report

    • Avatar Griff in reply to Burt Likko
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      says:

      Yeah, this is exactly how I would expect the analysis to go under the free exercise clause. But the confrontation clause question remains. Maryland v. Craig held that the face-to-face requirement could be overcome under certain circumstances, if the countervailing interest was strong enough (that case was about allowing a child victim to testify by CCTV instead of being in the courtroom with the defendants), though query whether Craig is still good law in the wake of Crawford. The problem is that Craig also said that one of the core elements of the confrontation right was to allow the jury to observe the victim’s demeanor while testifying, and relied heavily on the fact that they could still do that over CCTV in holding that the procedure was permissible. I tend to think the defendant would win this case (especially with the current Court), but it’s hard to say for sure.Report

      • Avatar Burt Likko in reply to Griff
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        says:

        I believe Mark addressed that there might be valid exceptions to the Confrontation Clause in the OP above, most explicitly regarding rape shield laws. There are circumstances in which the testimony of young children is presented with modified procedures as well. I would have less of a problem with the defendant being physically removed from the courtroom during such testimony than the witness based on the caselaw (quoted nicely upthread), provided the defendant could see what was happening live and have a meaningful way to communicate in real time with the defense attorney in the courtroom. Given today’s technology, that wouldn’t be a big issue.Report

    • Avatar Maribou in reply to Burt Likko
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      says:

      The assumption that in order to be a religious requirement (let alone a sincere religious belief), something must be in the main holy scripture of that religion is in itself a culturally-determined assumption.

      I mean, until not so very long ago, Catholics weren’t even SUPPOSED to read the Bible. Oral tradition can be as powerful as written scripture – just not in mainstream American religion.Report

      • Avatar Burt Likko in reply to Maribou
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        says:

        This may be true, Maribou. I’m not sure. I figured I’d ask a client earlier today, but it turns out that he’s out of town and rescheduled his meeting. By the time I see him again I’ll probably have forgotten about this, frankly. He is not, of course, the only Muslim around, nor am I the only one with the ability to ask.Report

        • Avatar Fnord in reply to Burt Likko
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          says:

          Regardless, the general rule in the US is that the state is not allowed to determine what is or is not a “really” a religious rule, so long as the person in question sincerely believes that it is (which doesn’t seem to be at issue here). Which seems like a good general principle for a secular society; we don’t, in general, want to put the state in the business of interpreting religious law.Report

        • Avatar Maribou in reply to Burt Likko
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          says:

          I’m speaking from having taken a religious studies minor in a school with a big Islamic Studies program, so I’m pretty sure. There were women in niqabs and hijabs in my foundational Judaism, Christianity, and Islam class, and we talked about these things. Not court-standard proofs, but I promise you if you needed those, we could eventually find you about 80 expert witnesses without too much trouble. There will be Muslims who declare that it is absolutely not a religious requirement, and other Muslims who declare that it is, and plenty who say that it is complicated, and etc., because *that’s how religious belief usually works*. The only religions that have complete orthodoxy are tiny ones.Report

          • Avatar Kazzy in reply to Maribou
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            says:

            And that is why things get so tricky when it comes to the 1st.

            “I do this because it is part of my religion and I believe it deeply.”
            “No, you don’t.”

            That itself seems to be a violation of the 1st.Report

            • Avatar Burt Likko in reply to Kazzy
              Ignored
              says:

              Again, I disagree. In many cases it may be the case that there is no dispute about the sincerity of a practice. But if we say that asking about the sincerity of a claimed practice is, itself, a violation, then we’re saying that anyone, anywhere, can claim that anything is a violation of their religious beliefs and the government is intruding upon them. Everything the government does becomes a potential Establishment Clause violation. A minimal inquiry into the sincerity of the claimed practice is necessary if only to prevent abuse of the legal system.Report

              • Avatar Kazzy in reply to Burt Likko
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                says:

                Asking is probably okay. Denying is another.

                But I’m also on record saying the 1st has already been gutted. Folks are required to violate or prevented from following legitimate religious beliefs all the time. And I can’t declare a Church of Kazzy that will amount to a hill of beans. The fact that we have the Lemon test and all that other stuff tells me we don’t have an absolute right to freedom of religion.

                Which is probably right. But it gets us to thorny places and fast.Report

              • Avatar Mark Thompson in reply to Burt Likko
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                says:

                So I just looked back at the line of cases I was thinking of on this point, and I seem to have misremembered an important nuance in them. Specifically, the government can inquire into the sincerity of an individual’s religious beliefs, but it cannot inquire into whether a particular church actually holds a particular belief, nor may it inquire as to whether that belief is a mere pretext for an otherwise prohibited act. One case on this issue is Catholic High School Asso. of Archdiocese v. Culvert, 753 F.2d 1161 (2d Cir. 1985).

                In the present case it is not the inquiry into whether a belief is sincerely held by an individual that is at issue. Rather, it is the possibility of recurrent questioning of whether a particular church actually holds a particular belief. We agree with the Seventh Circuit that in order to demonstrate the sincerity of the belief held, “the bishop . . . would have to eliminate the pretextual aspect of claimed justification which would involve the matter of showing the validity [as part of church doctrine] of the claimed doctrinal position advanced.” Catholic Bishop, 559 F.2d at 1129. Inevitably this would lead to the degradation of religion. One of the primary purposes of the Establishment Clause was to avoid just this result. Thus, the First Amendment prohibits the State Board from inquiring into an asserted religious motive to determine whether it is pretextual.

                This makes a certain amount of sense – if the state is going to try to figure out what a religious entity (as opposed to an individual) does and does not actually believe, and then make decisions adverse to that entity if it determines a part of the church’s doctrine is unsupported by religious texts, then the government puts itself in the role of defining what is and is not “Christianity,” “Islam,” “Judaism,” etc.

                If you’re inquiring into the sincerity of an individual’s religious beliefs, you can look into when they first acquired them, whether they, as individuals, actually practice those beliefs, etc. without actually seeking to define what is and is not legitimate practice of that religion.Report

    • Avatar Kimsie in reply to Burt Likko
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      says:

      It is cultural, in some sense, but it’s also religious. It’s like some people who are “Christian” (you know the type, wont’ listen to non christian music, won’t watch tv)… The deliberate overemphasis on things religious is a tendency of those who are rightwingreligious.Report

  9. Avatar zic
    Ignored
    says:

    So if her discomfort at being seen in public is great (and for many Muslim women this would be true,) is misconstrued as agitation/lying/etc., that’s okay?

    And the potential burden in the trial of public opinion within her community? Remember, women are murdered every day is some Islamic cultures because they’ve dishonored their family/tribe; even after a rape that was forced on them.

    Sadly, religion and culture are deeply intertwined; this is not just a denial of her religious freedom, but also a potential violation of her culturally. But that is ever the par for women seeking justice after they’ve been raped.

    Finally, my understanding is that the right to confront your accuser is not absolute, at least in the US. Children, for instance, are often exempted from this when they’ve been victim of a crime.

    I agree with Kazzy; this is really a right to not be accused anonymously. Certainly if someone is accused of murder, they cannot confront their victim in court. And confronting and discomforting and public shaming seem the likel motive for this (plus just getting off on the assumption the woman won’t reveal her face at trial).Report

    • Avatar zic in reply to zic
      Ignored
      says:

      Some of you might benefit from reading this study:
      http://www.d.umn.edu/cla/faculty/jhamlin/3925/Readings/ProsecutingRape.html

      It’s a pretty good review of what woman face from prosecutors in a rape trial.Report

    • Avatar Mark Thompson in reply to zic
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      says:

      The thing is that the Confrontation clause doesn’t protect the right to confront an alleged victim; it protects the right to confront those whose testimony is being used against the defendant. In the case of murder, the victim isn’t typically testifying against the defendant, except in cases where there’s hearsay exception evidence, and even then, the defendant is still able to cross-examine the person who claims to have heard the hearsay.

      It’s sad that this particular case is a rape case, but the need to ensure the reliability of testimony in a criminal case by allowing observation of prosecution witness’ demeanor is no different in every other case.

      One thing that’s also important to keep emphasizing here is that criminal prosecutions are not intended to help victims, at least not primarily (there are often victim compensation funds that pay out nominal amounts, but nothing of any significance) – they’re intended to punish acts that violate the criminal laws of the government, and wrongful or inherently unreliable convictions have terrible consequences.

      As importantly, though, we also need to keep in mind that, even to the small extent they can be viewed as providing a remedy for victims, criminal prosecutions are not the only remedy victims possess. Civil suits are possible, and in civil suits the burdens of proof are lower, the confrontation clause is inapplicable, and the result of a successful prosecution is an award of significant damages to the victim.

      Obviously, these advantages for civil suits are heavily offset by the fact that: (1) private civil litigation is often prohibitively expensive; and (2) defendants often have no assets. These are both problems that need to be addressed.

      I’m also open to any idea, such as strengthening rape shield laws, that would have the effect of encouraging rape victims to come forward more frequently, but only as long as those ideas don’t involve decreasing the reliability of convictions.

      Bottom line is that wrongful convictions happen far too frequently as it is, and I’ve not seen any data to suggest that they happen any less frequently for violent crime of any sort. I am supremely uncomfortable with anything that would have the effect of increasing the likelihood of wrongful convictions.Report

      • Avatar zic in reply to Mark Thompson
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        says:

        Bottom line is that wrongful convictions happen far too frequently as it is, and I’ve not seen any data to suggest that they happen any less frequently for violent crime of any sort.

        Wrongful convictions are horrible; the happen to between 5,000 and 10,000 people every year; typically younger men who already have criminal records.

        In the US, according to the wikipedia rape statistics page, there are about 90,000 rapes reported to police each year; and we know that the reported rapes are only a fraction of the actual rapes.

        Just to give some perspective.

        These are both cruel problems. Sending someone to jail who doesn’t belong there is horrific. But making a woman confront someone who persistently sexually molested her through her childhood is also horrific. Having such an experience in childhood myself, the very thought of sitting in a courtroom, telling people I don’t know what happened, makes me feel sick to my stomach.

        I don’t know the answers; but compounding wrongs only compounds wrongs, it doesn’t bring justice to anyone.Report

        • Avatar Mark Thompson in reply to zic
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          says:

          One thing worth mentioning is that a relatively small percentage of convictions are reached after a full trial since most criminal cases (about 90%, though this decreases for crimes with stiffer sentences, down to about 65-70% for homicide cases) are concluded without a trial by a plea bargain. Additionally, studies have (not surprisingly) found that innocent defendants are far less likely to accept plea bargains (and thus far more likely to go to trial) than guilty defendants.

          This is important because the confrontation issue is only relevant in the relatively few instances when a case goes to trial, and thus also only relevant in the cases with the highest likelihood of an innocent defendant, or at least of a defendant innocent of the most serious allegations.

          The link you provided indicates that wrongful convictions are estimated in about 3% of death penalty cases, significantly higher than the .5-1.0% estimate for convictions overall. That number is important because death penalty cases just about always go to trial since no defendant would ever accept the death penalty as a plea bargain, and there’s no reason to think that a death penalty trial would be any less reliable than trials for other felonies, including rape. In other words, it’s reasonable to estimate that, in the 10% of criminal cases that go to trial, a minimum of 3% of the resulting convictions are wrongful.

          I don’t see any way to make things meaningfully easier for rape victims at trials without significantly increasing that already too high erroroneous conviction rate, a major concern given the consequences of a wrongful conviction in a rape case. I’m amenable to the idea, already in place to protect child victims, of one-way mirrors so that the child does not have to actually see the defendant. But I don’t see anything else that can be done that wouldn’t dramatically undermine the principle that defendants need to have the ability to fully, publicly, and adversarially cross-examine the witnesses against them.

          However, I think there are a number of reasonable reforms that can be made to make civil suits easier on potential rape victims. (As an aside, it’s worth noting that civil liability for intentional torts, including civil liability for rape, is already not dischargeable in bankrutpcy). One thing that would help would be to allow for awards of attorney fees to successful plaintiffs in sexual and/or violent intentional tort cases. Another would be to make deposition testimony of plaintiffs in sexual intentional tort cases admissible in lieu of trial testimony per se, meaning that such plaintiffs would never have to testify in front of a jury, and only in front of the attorneys for both parties and the court reporter.Report

          • Avatar zic in reply to Mark Thompson
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            says:

            And how many civil trails for rape are there each year? And does any such civil trial take a rapist off the streets?

            And in this case, in particular, we’re seemingly not talking about just a rapist, but a potential pedophile.Report

            • Avatar Mark Thompson in reply to zic
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              says:

              I have no idea how many civil cases involving rape allegations actually go to trial, but I do know that it is not uncommon for rape cases to involve separate civil suits. The Penn State litigation is one example. Another example that quickly comes to mind would be the Kobe Bryant case, where the accuser sued and obtained a settlement despite dropping the criminal charges. As I understand, there is also a civil suit proceeding in the Steubenville case.

              So it’s not uncommon, at least when an accuser has access to adequate resources to file suit. Assuring better access to civil courts for those with inadequate resources is something that is well worth pursuing.

              Obviously civil cases do not take rapists off the streets – nor should they, since the burden of proof in civil cases is so much lower. But the important thing to remember here is that until someone is convicted in criminal court, in the eyes of the law they are innocent of any crimes. We don’t lock people up for the rest of their lives because they are merely “potentially” anything; we lock people up only when we have determined beyond a reasonable doubt, in a court of law, that they “are” something, and even then we still make mistakes with troubling frequency.

              Yes, having such a high bar creates a potential that dangerous and horrible people will be allowed to remain on the streets because they are able to create “reasonable doubt” as to their guilt. But that is a calculated and necessary risk that must be taken. Even at trials, the acquittal rate is relatively low – about 25-30%, and presumably the bulk of those acquitted are actually innocent of the crimes they are accused of. To decrease the already fairly small number of actually guilty people who walk, we would need to significantly increase the number of actually innocent people who get convicted.Report

              • Avatar Mark Thompson in reply to Mark Thompson
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                says:

                “who walk after a trial,” I meant. Obviously a good number of guilty people are never actually charged.Report

              • Avatar Maribou in reply to Mark Thompson
                Ignored
                says:

                It doesn’t create a *potential* that dangerous and horrible people will be allowed to remain on the streets. It contributes to the reality that some dangerous and horrible people *are* allowed to remain on the streets; it also contributes to the reality that overworked prosecutors and police departments (thank you, drug war) *do* settle for what they can prove, or for what the alleged criminal will admit to, rather than conducting the most thorough possible investigation, charging the alleged perpetrator with all the crimes they can establish that he or she committed, and risking an acquittal.

                I agree with the rest of your comment (though not necessarily with the conclusions about the niqab); I am 100 percent in favor of innocent until proven guilty, and I would actually go so far as to say that I would rather a serial killer walked than that an innocent man was left in jail for 20 years, if those are our choices; but I think it’s important to always be very blunt about the high cost that “innocent until proven guilty” carries with it. For one thing, out of respect for the victims of the only-theoretically innocent; for another, so that we remember that society is fishing broken, and there’s a lot of fixing left to do.Report

              • Avatar Mark Thompson in reply to Maribou
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                says:

                That was poorly worded on my part – it should have said “the potential that a given dangerous and horrible person will be allowed to walk free.” I agree with your points in full.Report

              • Avatar zic in reply to Maribou
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                says:

                Maribou, this. I agree 100%. It is crucial to recognize that there is no right to justice for victims here; and the cost of that right can be heavy on other innocents as well as the victims.

                I, too, would not see an innocent person jailed.

                But at the same time, I can mourn so many who are emotionally raped by the system of justice we use to try their rapists.Report

              • Avatar Mark Thompson in reply to zic
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                says:

                But at the same time, I can mourn so many who are emotionally raped by the system of justice we use to try their rapists.

                I sincerely hope I did not come across as suggesting otherwise.Report

              • Avatar zic in reply to Mark Thompson
                Ignored
                says:

                You didn’t.

                Most folk don’t come across this way; pretty much everyone agrees rape is a horrible crime.

                But reality for rape victims is what it is, also. So, too, for the condemned innocent.Report

  10. Avatar Michael Cain
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    says:

    IANAL, so I’ll display my ignorance. Can the defense challenge a witness on the grounds that their identity hasn’t been established? If it’s ten years of my life in prison that’s on the line, I’d certainly ask for more than the “state your name” bit if the witness were wearing a garment that showed only their eyes. That seems almost as relevant as the chain-of-evidence routine for physical evidence. So-and-so identified the witness uncovered, escorted them to the courtroom, and remained in proximity until they took the stand so there was no possibility of a switch.Report

    • Avatar Griff in reply to Michael Cain
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      says:

      Probably the witness’s testimony under oath that she is a particular person would be sufficient for the jury to conclude that she is, in fact, that person.Report

    • Avatar George Turner in reply to Michael Cain
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      says:

      But then why wouldn’t white folks be allowed to testify in inter-racial rape trials wearing Klan hoods with two little eye slits? The fact that they’re on the stand and claiming to be Jimmy Ray Butts, the victim’s cousin, should be more than enough.Report

    • Avatar Morat20 in reply to Michael Cain
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      says:

      Given the modern world, identifying a witness by simply going “Yep, that LOOKS like Bob” seems to be, you know, kinda…minimal.

      I don’t think the confront clause is there to make sure it’s really Bob on the stand, nor do I think courts have any real problems verifying identity if it’s questioned.

      Which has jack-all to do with veils during testimony, since identification should be handled before Bob starts yakking and is a matter between the lawyers and judge. I’m pretty sure juries aren’t generally used to determine identification. If they are, then yes — veils might be a problem.

      But then, if you’re religiously required to wear a veil, wouldn’t pretty much everyone you’d ever met have only seen you in a viel? So how would removing it help, unless it’s a husband or immediate family doing the identification? And at that point, wouldn’t they recognize you anyways?Report

      • Avatar Mark Thompson in reply to Morat20
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        says:

        In this Canadian case, the accuser is alleging she was raped 25-30 years ago, but did not start wearing a veil until the last 10 years.Report

        • Avatar Morat20 in reply to Mark Thompson
          Ignored
          says:

          Yeah, again — I don’t think seeing her face 25 years later is gonna add anything on the stand in terms of’ ‘identification’.

          She is who she is, and I sincerely doubt he actual name and identity was established through visual contact in the courtroom during testimony.Report

          • Avatar Mark Thompson in reply to Morat20
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            says:

            With all due respect, it doesn’t much matter how likely you think it is that this will add anything to the defense; it matters only that there be a legitimate possibility that it will add something to the defense. I know I sound like a broken record on this, but we don’t have trials to vindicate victims or witnesses, we have them to protect defendants against wrongful convictions.

            I can easily envision a scenario in which visual identification would be highly relevant in circumstances only slightly different from this case. Start with the presumption, as we must in the context of evaluating defendants’ rights, that the defendants are not guilty. This accuser’s testimony will be the entirety or near entirety of the prosecution’s case, which actually is the circumstance here.

            Now….what are the ways they can disprove the witness’ testimony? They need to get the witness to contradict herself, right? If they can’t do that, they also need to find their own witnesses who can contradict parts of her testimony. It’s typically not going to be enough for the defendants themselves to just go on the stand and deny everything – they’ve got to be able to provide testimony that provides an alternative explanation.

            Now for the slight factual change – this is 25 years ago, so it’s not hard to imagine a situation in which the victim’s name just doesn’t ring a bell with them or with one or more potential defense witnesses – maybe she was just a kid from around the block, or a student in a class, whatever. Let’s also suppose that, although the alleged abuse stopped 25 years ago, the girl claims she continued to encounter the men on an occasional basis for several years thereafter, such that they would have seen her grow to early adulthood. Under these circumstances, the accuser is effectively anonymous to the defendants, with the effect that they can’t contradict her testimony or give their lawyers facts to use in questions that would get her to contradict her own testimony for the simple fact that they don’t remember anything about her or their relationship with her.

            Is it that far-fetched that seeing her face under these circumstances would ring the bell that her name wouldn’t?Report

  11. Avatar Stillwater
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    says:

    There is a deep and (for me) awe-inspiring beauty found in legal reasoning. Mark, Burt and Griff are inspiring my awe.Report

  12. Avatar Shazbot4
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    says:

    I don’t get this issue. It is weird.

    Why can you only confront someone (an accuser, a witness, etc.) if their face is naked? And how much of the face can be covered?

    And are big beards that different from veils? I’ve sure seen some dudes who are pretty hidden, darn near up to the eyes, behind a crazy beard. (And it isn’t always easy to tell one big bearded dude from another.)

    Should accused people have a right to demand witnesses and accusers shave beards?

    Certainly I can see cases where it is important that a person get to look at someone’s naked face or even naked body for some weird evidential purposes.

    But those issues can be solved on a case by case basis. Let the judge do his job and judge whether the accused really does need to see behind the veil or behind the beard or even under the clothing of an accuser or witness. In most cases, I think this won’t matter.Report

    • Avatar George Turner in reply to Shazbot4
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      says:

      If you shaved someone’s beard you’d get ten years in federal prison for transporting scissors across a state line (famous recent Amish case). And beards don’t hide much facial expression. Our species is premised on successful communication (apparently it’s why we’re one of the few animals who show the whites of our eyes, to make where we’re looking more obvious), and if beards significantly impeded conveying our intentions, honesty, or reliability then their growth (which serves virtually no useful purpose) would’ve been weeded out of the gene pool.

      There’s also the possibility that people who’ve grown up in a culture where women keep their face covered get better at reading things purely from the eyes, an ability which a fresh picked US jury would probably lack, compromising their abilities as jurors.

      Not mentioned in any of this is that the Muslim prohibition against women exposing their faces is because men can’t control their urges and might become inclined towards rape. So shouldn’t an equal question involve a non-Muslim female witness testifying without a facial covering in front of a jury that includes a Muslim whose judgment is compromised because of her beauty? Taken at face value, he might even be a potential rapist. So should Muslim men be allowed to sit as jurors at any trail where a non-Muslim female takes the stand or serves as a judge or lawyer?Report

      • Avatar Murali in reply to George Turner
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        says:

        Not mentioned in any of this is that the Muslim prohibition against women exposing their faces is because men can’t control their urges and might become inclined towards rape

        Its a modesty standard. Its stricter than yours or mine but it plays the same role as modesty standards in other societies.

        So shouldn’t an equal question involve a non-Muslim female witness testifying without a facial covering in front of a jury that includes a Muslim whose judgment is compromised because of her beauty? Taken at face value, he might even be a potential rapist. So should Muslim men be allowed to sit as jurors at any trail where a non-Muslim female takes the stand or serves as a judge or lawyer?

        Dude, can you be any more deliberately offensive?

        1. People judge eachother on based on what they war all the time. That some Muslim men have extreme standards does not make their judgments qualitatively diffrent than other kinds of judgments people make about others based on their clothes.

        2. The key word is some Muslim men. The vast majority of Muslim men living in pluralistic societies are capable of separating the standards for women in their own cultures and for women in other cultures.

        3. The requirement for a face veil is not uniform among Muslim societies. Just as there are liberal and conservative christians. There are also liberal and conservative muslims. Most Muslims in western countries are not so conservative as to think that a face veil is a requirement. Only some are, which is why the problem only cropped up recently.Report

    • Avatar LeeEsq in reply to Shazbot4
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      says:

      The common law system places a lot of weight on a person’s demeanor when the testify as a way to determine whether that person is credible or not. A witnesses’ facial expressions is seen as an important factor in determining demeanor. If a witness appears very nervous in some way than its kind of assumed that the witness is not credible. Thats why its important to be able to see the face of the person you are confronting in court, so that the jury coul analyze his or her expression and determine their demeanor.Report

      • Avatar Shazbot4 in reply to LeeEsq
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        says:

        So Jewish men should be required to shave their beards before testifying at any legal proceeding?

        IMO, people shouldn’t be encouraged to base their evaluation of evidence and testimony on how someone looks (how their face looks). Not at all. They don’t need to see faces.

        It is harder to see a face if a guy has a giant beard and long hair and if a woman wears a veil.Report

  13. Avatar Richards
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    says:

    I don’t really know how relevant this would be ot the conversation, but the Conservatives under Stephen Harper have installed an Office of Religious Freedom and is also heavily focused on victim’s rights….Report

  14. Avatar Damon
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    says:

    The trail is essentially a public event. The accuser is there to accuse someone of a crime in front of those who will pass judgement. The defense is entitled to challenge those accusations, and the jury is there to hear and see the reactions of the accuser and the defendant. Both visual and audio clues give input to the jury to help them determine the veracity of the accuser.

    If this is not something the accuser can do given the restrictions of their religion, the accuser has the option of not testifying.Report

  15. Avatar switters
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    says:

    Any reason to think the wearing of the niqub will induce the jury to believe her more, rather than less? I don’t think so. Quite frankly, in the US and probably Canada (although i am less comfortable making this guess), I’d guess it would make the jury less likely to believe her. And if that is correct, as long as she wears the niqub while she testifies for the prosecution, I don’t see how the defense would be prejudiced by being forced to cross examine her with it on. I think you’re right to confront the “witness”, is, or at least should be (not making any claims about the actual state of the law) you’re right to confront the “witness” that testified against you, whether that be with a beard, glasses, or marilyn manson face paint, and not the witness you wish had testified against you.Report

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