Confronting Religion: Veiled Muslim Witnesses and the Confrontation Clause
Murray, Brian M., Notre Dame Law Review
On October 11, 2006, Ginnnah Muhammad appeared in Michigan small claims court before District Judge Paul J. Paruk in her suit against Enterprise Rent-A-Car. (1) Muhammad is a practicing Muslim who wears the niqab (hereinafter "veil"), which covers every part of her face except her eyes. (2) The judge asked Muhammad to remove the veil prior to testifying so that he could gauge her reliability and credibility. (3) She refused on religious grounds and Judge Paruk ultimately gave her a choice: remove the veil and continue testifying or continue to refuse and risk having her suit dismissed. (4) Muhammad chose the latter option and her suit was ultimately dismissed. (5) In effect, Muhammad lost her day in court because of her desire to practice an aspect of her religion. This past summer, partially in response, the Michigan Judges Association and Michigan District Judges Association adopted a new statewide rule "giving judges 'reasonable' control over the appearance of parties and witnesses to observe their demeanor and ensure they can be accurately identified." (6)
Now imagine a similar situation in the criminal context: A lead prosecutor decides that the key witness is a Muslim woman, who happens to wear a veil, and he needs her to testify against the criminal defendant. The witness will appear in the courtroom before the judge, jury, and each side. But the Muslim believes, as Muhammad does, that removing her veil is a burden on her religious practice, offensive to her dignity, and an infringement of her Free Exercise rights under the First Amendment. She refuses to remove the veil but is willing to give her testimony while her face is covered. Defense counsel immediately cites the Sixth Amendment, quoting, "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." (7)
Defense counsel claims that the defendant's general right to confront witnesses includes a face-to-face meeting in which the finder of fact is given ample opportunity to judge the credibility and reliability of the witness. (8) Meanwhile, the Muslim witness argues that she is entitled to an exemption from general court procedures concerning witness attire due to the protections of the Free Exercise Clause in the First Amendment. The government is caught in the middle because it has an interest in upholding both constitutional rights. Protecting religious freedom seems just as important as ensuring that criminal defendants receive a fair trial, especially given the explicit guarantees of both the First and Sixth Amendments.
The above hypothetical scenario has not occurred in any criminal case to date. However, in a post-9/11 world this scenario is certainly foreseeable given the heightened awareness of the place of Muslims in American society and an increasing interest in the intersection of religious practice and the law. This is especially true considering the increase in the number of U.S. residents that identify as Muslims. (9) In such a situation, which constitutional right takes precedence? Is the liberty interest found in the Free Exercise Clause stronger than that found in the Confrontation Clause? Does the government have a stronger interest in the protection of either right and should the government take sides in such a conflict? Does current Supreme Court jurisprudence, concerning both clauses, provide an adequate solution to this problem? Is it possible to have a workable resolution of a conflict between two fundamental constitutional rights, grounded in both the history and text of the Constitution? These are the issues underlying the threshold question that this Note will address and attempt to answer: whether a Muslim witness must unveil while on the witness stand in a criminal trial. It seeks to elucidate future discussions about this topic.
Part I acknowledges the various interests held by the witness, the defendant, and the State. …