“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?