Can a Witness Wear a Veil on the Stand?

A tough case forces a choice between the right to confront one’s accuser in a public trial and the free exercise of religion.

The Constitution guarantees public trial by jury, affords defendants an opportunity to confront witnesses testifying against them, and protects the free exercise of religion.

What happens when those rights are in conflict?

On a winter night in 2009, Davina Sparks was sitting in a car with her boyfriend and her 2-year-old daughter when a man approached the passenger-side window. Upon recognizing the man, the boyfriend got out of the car. Suddenly, another man emerged from behind a van and shot the boyfriend nine times. He was later pronounced dead at a nearby Philadelphia hospital.

Sparks escaped. Then she found two police officers and joined them in a drive around the neighborhood, where the man who had appeared at the car window was spotted. Eventually, the police were able to arrest a suspected shooter as well––and when they put him in a photo lineup, Sparks identified him as the guilty party.

Tyreese Cooper was indicted for murder. Pennsylvania began a public jury trial in which Cooper wished to cross-examine Sparks. Sparks, who is Muslim, asked to testify with a veil covering her face and head, in keeping with her faith.

The defense thought she should have to remove it.

The criminal defense attorney Scott Greenfield explained the conflict faced by the court, rooted in the assumption that juries can sometimes distinguish truths from lies.

“Most of the time, witnesses lie with the same sincere face as when they tell the truth. Sometimes, they lie even better than when they tell the truth… There is also the problem of people telling the truth but looking like liars, which can happen for a great many reasons,” he wrote. “The point is that ‘demeanor’ isn’t all it’s cracked up to be, and may just as well deceive a jury as aid it in deciding who is lying to them. Yet, it remains a crucial element of confrontation, and testifying from behind a veil precludes a jury from observing it.”

The trial court decided that Sparks would have to remove her veil in the presence of jurors to testify, but that spectators would be cleared from the courtroom. The right to confront an accuser would be undiluted. The rights to a public trial and the free exercise of religion would be somewhat compromised.

Cooper was ultimately found guilty. He later tried to get his conviction overturned, arguing that his lawyer should have objected that his right to a public trial was compromised by the removal of most spectators during crucial testimony.

The Pennsylvania Supreme Court rejected that argument, asserting that the right to a public trial in the commonwealth is not absolute. A three-judge panel stated:

We have permitted exclusion orders for “the protection of a witness from embarrassment or emotional disturbance.” Moreover, “an exclusion order which is designed to protect a witness from emotional trauma will not necessarily be constitutionally infirm if it excludes the entire public for a limited time.”

…

We discern no abuse of discretion in excluding spectators from the courtroom while Ms. Sparks testified … Striking a balance between Appellant’s right to a public trial and the need to respect the witness’ religious beliefs, the trial court cleared the courtroom, but only for the duration of Ms. Sparks’ testimony. The exclusion was limited in duration to protect the witness from emotional disturbance, as well as to protect Appellant’s right to confront her and to allow the jury to make effective credibility determinations.

The law professor Eugene Volokh, a First Amendment expert, was intrigued by the decision. “The First Amendment has been read as securing the public’s right of access to court hearings (and court records), to much the same degree as the Public Trial Clause secures a criminal defendant’s right to have the trial be public,” he wrote. “The court’s reasoning would thus suggest that the witness’s felt religious obligation to have as few men as possible see her unveiled trumps this First Amendment right of access as well as the Public Trial Clause. Is that right?”

To think the matter through, he revisited the language from a Fifth Circuit Court of Appeals case from 1984. According to the opinion in Rovinsky v. McKaskle:

The right to a public trial is not absolute: limitations on public attendance may be imposed so long as they are no more exclusive than necessary to protect a state interest that outweighs the defendant’s interest in public scrutiny of the proceedings.

Indeed, the protection of witnesses from embarrassment or intimidation so extreme that it would traumatize them or render them unable to testify is a state interest sufficiently weighty to justify partial or complete exclusion of the press and public.

Applying that language raises a thorny question: How relatively embarrassing, intimidating, or traumatizing is it to compel a veil-wearing Muslim to expose her face?

Says Volokh, running through circumstances that meet the minimum trauma threshold:

Classic examples are (to borrow from a list in another case), “to protect dignity of witness in rape trial,” “to protect witness with fear of testifying in public,” “to protect witness afraid of testifying,” “to protect witnesses from intimidation,” to protect child witnesses in rape trial from embarrassment,” “to protect witness and his family where safety threatened,” “to preserve confidentiality of undercover agents in narcotics case,” and “to protect from disclosure of trade secrets.”

So the question, under these cases, is whether a witness’s reluctance to testify in public for religious reasons should be treated analogously to a witness’s reluctance to testify for more commonly felt secular reasons (such as fear of retaliation or embarrassment related to testifying about sex crimes).

Volokh went on to solicit and publish reactions to the case from public-trial-clause experts. One noted, in part, “I’d question whether the trauma of removing a scarf for a jury is any different than doing so for the court spectators.”

The ability of veil-wearing Muslims to cover their face is very likely to come before high courts in the United States and other Western countries as controversies like this one force trade-offs among different rights and state interests. And the cases could be numerous, as decisions may differ depending on whether the veil-wearing Muslim in question is a prosecution or defense witness, or a defendant, among other wrinkles.

“So what gives, confrontation, public trial or the right of a witness to exercise her religion?” Greenfield asked. “Which right would be best to sacrifice, since something has to go?” The coming years will bring thorny cases and new precedents.