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Confrontation and the Niqab

By Richard D. Friedman

I was interviewed yesterday on a Canadian Broadcasting Corporation radio program, The Current, about a pending case in which a Moslem woman, the complainant in a sexual assault case, wishes to testify while wearing a niqab ? a covering that obscures most of her head but leaves her eyes visible. (You can find out more about the case and a link that will allow you to listen to the broadcast ? I'm on for just a few minutes at the end ? by clicking here.) The issue is an interesting one. As I understand it, for this woman at least there isn't an absolute religious command to wear the niqab at all times, but it is clear that she wears it as a matter of her longstanding and consistent religious practice. I am inclined to believe that she should be allowed to testify while wearing the niqab.

So far as the trier of fact's ability to judge her demeanor is concerned, I think there is not really a serious issue. First, ability of the trier to observe demeanor has never been deemed absolutely esssential; traditionally, if the witness is unavailable, a deposition transcript may be read. Second, the ability of the trier to determine credibility by observing demeanor is often over-estimated; people really aren't very good at it. Third, the trier does have a chance to observe numerous demeanor clues ? body language, eyes, and voice. (If the eyes are not visible to the trier because of the niqab, presumably some kind of projection of her image could be used.)

The aspect of confrontation that is essential is the presence of the accused with the witness when she gives her testimony. (I'm going to put to the side the rule of Maryland v. Craig, which allows a child witness to testify in a separate room, electronically hooked up to the courtroom, if trauma seems likely. Perhaps an American court would draw on Craig to make allowances in this situation. But Craig is of doubtful continuing vitality after Crawford; I don't know the Canadian practice.) But here, too, I don't think the impairment is substantial. The witness can still look the accused in the eye when she gives her testimony; presumably her view is unobstructed, and if his presence carries with it a reminder of her obligation to tell the truth I don't believe the niqab lessens that message. And he can see her eyes and hear her voice. I think he's getting an opportunity to be confronted with her.

What if other complainants, without a religious basis, sought to testify wearing a niqab, saying it made them feel more comfortable? I still doubt there's a violation of the confrontation right, but I think the court should probably say, "Sorry, you have to testify the way we say you do it."

Interesting problem. I welcome comments, and mentions of other cases raising the issue. (I know of one American case, a civil small-claims case from Michigan, in which the judge did not allow the plaintiff to testify while wearing the niqab. Silly, in my view.)

Full post as published by The Confrontation Blog on February 04, 2009 (boomark / email).