Confrontation And The Veil

The Sixth Amendment to the Constitution sets out the Confrontation Clause, which ol’ Nino took very seriously. It also provides for a speedy and public trial, all of which gives rise to a problem when a witness for the prosecution wears a veil.

Eugene Volokh provides the background.

Tyreese Copper was convicted of murder and sentenced to life in prison. (This comes from Commonwealth v. Copper, which was decided in September 2018, but I just learned about it from a follow-up federal opinion filed early this month.) At trial, eyewitness Davina Sparks was called to testify; but she was a veil-wearing Muslim woman, and (to quote the government’s brief),

[C]ounsel objected to Ms. Sparks testifying while wearing her Muslim garb that covered her face. Ms. Sparks refused to remove the garb, citing her religion as the reason for her refusal. Out of deference to Ms. Sparks’s religious beliefs, the court decided to clear the courtroom for Ms. Sparks to testify without her face garb “so I can at least have her taking off her covering only in the presence of the people who are absolutely essential to being here,” i.e. the jury, court staff, defense counsel, and defendant. Trial counsel did not object to the court’s proposal. Ms. Sparks agreed to remove her face garb in a courtroom cleared of spectators.

There being no contention that Spark’s wasn’t entirely sincere in her religious belief that compelled her to wear a full face veil, yet another constitutional right is implicated; her First Amendment right to free exercise of her religion. Our Constitution can make things very complicated at times.

The Confrontation Clause has various aspects of significance, most notably the ability to confront by cross-examining a witness. For example, if a lab report concluding that a substance is heroin is introduced as a necessary element of an offense, but the prosecution puts it in as a piece of paper through the testimony of a records custodian, there’s no way to question the methodology of the lab analysis.

You can ask a piece of paper questions all you want, but it’s not going to answer because it’s a piece of paper. You can ask the custodian, but the best you’re going to get is the routine methodology rather than what was done in this particular instance. And, of course, it’s not likely to serve any useful purpose. This is why the report shouldn’t be allowed into evidence if the person who conducted the particular analysis doesn’t testify. Cross matters.

But there is another component, the ability of the jury to observe the witness’ testimony. This is, in essence, a throwback to the belief that people have some magical ability to discern truthful testimony from lies. Courts generally phrase it as the jury’s ability to observe the witness’ demeanor, to see the witness squirm when asked tough questions, to watch their face contort, the redness of their face, the tears well up in their eyes when the blow lands hard.

Sometimes this happens, and when it does, it’s can be amazing. But 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. And there’s no way to distinguish which is which, absent extrinsic evidence. There is also the problem of people telling the truth but looking like liars, which can happen for a great many reasons.

The point is that “demeanor” isn’t all its 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. Is that a Sixth Amendment deprivation? What about the right to a public trial, which was once a right due solely to the defendant but has since morphed into a right of the public to watch? And then there’s Spark’s right to exercise her religion. What about that?

“[T]he right to a public trial is not absolute; rather, it must be considered in relationship to other important interests….” Commonwealth v. Conde (Pa. Super. 2003). 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.”

Based upon the foregoing, we discern no abuse of discretion in excluding spectators from the courtroom while Ms. Sparks testified…. [I]n 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….

As Spark’s was compelled to testify without her veil, but in a closed courtroom, the Confrontation Clause concern was addressed at the expense of her religious freedom and the right to a public trial. Of the three constitutional rights in conflict, two gave way for the sake of the jury observing the witness’ demeanor.

The standard applied by the Pennsylvania Supreme Court was abuse of discretion, which is nearly impossible to overcome. The trial judge has to be outrageously wrong, and the effort to accommodate the conflicting rights was, even if wrong, close enough. But as Eugene notes, the most inflexible of these rights is the one the court called “not absolute.”

Note also that 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. 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 this right? The seemingly unlimited command of the Public Trial Clause suggests that it isn’t, but there are indeed lower court cases that do allow that command to be trumped in some instances.

Running through a laundry list of reasons to close a courtroom, most of which are grounded in a witness’ claim of trauma from public scrutiny, Eugene turns to some “public trial” prawfs for an answer, none of which do much to provide any meaningful guidance to a lawyer facing this situation at trial. So what gives, confrontation, public trial or the right of a witness to exercise her religion? Which right would be best to sacrifice, since something has to go?

Confrontation And The Veil curated from Simple Justice