In our legal system, appeals courts very rarely assess the credibility of witnesses; the theory is that, unlike the appellate court, the jury and trial judge had an opportunity to observe the witness firsthand, and were in the best position to determine whether the witness was telling the truth.
Last October, a Muslim woman sued a car rental company in Michigan small claims court; after the court would not agree to give her a female judge, she refused to take off her veil when testifying. (She was wearing a version of the veil which covered all but her eyes.) The judge explained to her that he needed to be able to see her face to evaluate her credibility, but she still refused; as a consequence, he dismissed her case.
Yesterday, she filed a federal lawsuit against the judge, arguing that he violated her First Amendment rights. (It appears that she asks only that she be allowed to wear a veil while testifying at her next hearing (the car rental company has now sued her); she currently is not seeking monetary damages.)
The issue was discussed extensively on the Volokh Conspiracy last December; Professor Volokh’s conclusion: the judge was probably legally in the right when he dismissed the case.
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From the research I’ve seen into how liars get away with lying, it might be better to veil *all* the witnesses so judges and jurors don’t fool themselves about their abilities to read faces. Most people do worse than random chance at detecting a good liar…
There is another issue with a veiled witness: how does the court verify his or her identity? In the context of this case, is the person suing even the same person who made the contract originally? Normally, it would be a huge risk to bring in a “ringer” as a witness, as there would probably be someone in the courtroom who had seen the person the witness was impersonating before.
Diversity is our greatest strength, says our fearless president. Yet how this episode makes us “stronger” is beyond me. Certainly, if a Western woman were to protest, say, being stoned to death in a Muslim country on grounds that her culture should prevail over their legal norms, you can bet what the response would be. But our timidity will not allow that, and I believe it will be our undoing. What we consider to be “tolerance” and “enlightenment” are properly seen by others as foolishness and weakness.
If she was living under Muslim law, I doubt she would have been allowed to testify at all – or file a lawsuit. She needs to pick one system and live by it.
Without focusing on any person in particular, I want to encourage commenters in this thread to stick to the legal issues raised; there are plenty of sites to debate Islam generally, but this isn’t one of them.
Interesting that this comes up just after Richard Casey’s passing. The NYT was skeptical of his nomination because of his perceived inability to evaluate witnesses’ credibility. (Mr. Casey was blind.)
I understand David Nieporent’s concern that this thread will turn into muslim-bashing, but the woman is challenging the court based on her religious convictions, so some discussion of religion is unavoidable. The Koran puts a woman’s testimony as worth half that of a man’s – I wonder how the woman would feel if a Muslim judge felt he should also assert his religious beliefs and apply this standard to the case?
I’m also rather disturbed that the judge based his entire objection to the woman’s face mask on a claim that he needed to see her face to tell if she is lying. As someone else pointed out, how else does the judge and the defendants verify her identity? That seems to be a far more important issue.
If you are only concerned about verifying identity, the woman’s fingerprints could be used to verify. If we are to believe what we see on TV, that verification should only take seconds, especially since you would be comparing against a known – her previously registered fingerprints.
Note that I’m making no comment about the legality or reasonableness of her position, but merely dismissing the identification part of the above arguments.
Picture ID (that shows your actual face) is required for a driver’s license in Michigan if I recall, correct?
If true, then I don’t see why it’s an issue here. I’ve never been asked to prove my identity in a court via any other means.
The jury is the finder of fact, why not let her testify and allow the jury to decide if they found her credible?
Possibly allow counsel to express concern about the veil.
I disagree with MF. Fingerprints are often not good enough. What good would they do for eyewitnesses to a crime? Or like in this car rental dispute, the defendants may need to see the plaintiff to identify her, or to remember if they ever saw her patronize their business.
Besides, most people don’t have their fingerprints on file anywhere.
Invid: two problems with that:
1) Assuming Michigan is like many states, since this is small claims, there isn’t a jury — just a judge.
2) Opposing counsel and the opposing party generally have a right to observe the witness also.
Incidentally, because of that (as well as the possibility of a jury) the compromise offered by the woman — to have a woman judge — wouldn’t help.
JHS: If she’s this adamant about wearing the niqab, no party to the case ever saw her without it, so seeing her would prove no help to identification.
For you lawyers out there, is there anything to stop Muslims from making us conform to Sharia law in the name of our constitutional freedoms? That’s what seems to be the underlying goal in all these cases cropping up.
Isn’t one of the foundations of our legal system, the ability of the accused to confront the accuser (s) ? How can one properly “confront” an accuser if said accuser can hide his/herself behind a disguise. Irrespective of ones alledged religious convictions, I would want to see my accuser, indeed would demand it. This is also an excellent illustration of just why government and religion should not be intermingled.
“Or like in this car rental dispute, the defendants may need to see the plaintiff to identify her, or to remember if they ever saw her patronize their business.”
Nitpick — if this woman wears a veil in public all the time, then the only way the defendants would be able to identify her is by seeing her *with* the veil, right?
To “JB” and “Denver Lawyer”: Poor wording on my part; granted in this case seeing her face wouldn’t help the defendants much. In other cases, it could lead to absurd situations. A woman accused of shoplifting, for example, could show up on her court date wearing a niqab, claiming that she has suddenly converted to Islam. The case against her could fall through if male witnesses were not allowed to identify her.
JHS, I’m sorry I didn’t mean to pile on. I don’t think JB’s comment had been approved by the webmaster when I wrote mine.