A recent British case pitted a defendant’s religious expression against the jury’s ability to evaluate a witness’s credibility. According to BBC news coverage, the defendant, a Muslim woman, was charged with intimidating a witness. For religious reasons, she sought not to remove her veil (niqab) while in court, even while testifying. The judge ruled that she could keep her face covered while sitting in the dock but would have to remove her veil while testifying. A screen would block her from public view, but she would have to be visible to him, the jury, and the attorneys (rather, since the case is in England, the barristers).
On the one hand, the judge’s ruling seems a reasonable compromise between the defendant’s religious freedom and the jury’s need to scrutinize witnesses closely to determine if they are telling the truth. On the other hand, both sides expressed dissatisfaction with the ruling—prima facie evidence that it was basically fair—and it leaves a number of questions unresolved. On the defendant’s side, her right to exercise her religion has clearly been infringed. Her religion dictates that she not expose her face in public, yet she is forced to do so. On the prosecution’s side—and arguably even on the side of “justice” writ large—the jury needs to be able to observe not only witnesses while they testify, but also defendants while they react to others’ testimony.
Which consideration wins? The British judge’s ruling implicitly gives them roughly equal standing. But it is worth speculating how an American court might decide the issue, in light of the great deference granted to the First Amendment’s free exercise clause. Suppose hypothetically that the woman were allowed to wear her veil the entire time she was in court. The jury would have a harder time weighing her credibility, especially in terms of whether or not she was telling the truth. This presumes that jurors can do a decent job of that with unveiled witnesses. But they can’t. Research consistently shows that laypeople do barely better than chance, if at all, at telling liars from truth-tellers. So a negligible ability is impeded further. Moreover, we should consider the direction of any possible error. The jury might judge her more harshly for testifying while wearing a veil; this seems likely, considering some studies show juries, at least predominantly White ones, are biased against minority defendants. Such an outcome is undesirable, but since no one (presumably) forced her to wear the veil, she assumed the risk herself. Alternatively, the jury might judge her more leniently than they would otherwise. That outcome seems less likely, but if it happened, it could contribute to a false acquittal (i.e., an acquittal of someone who is genuinely guilty). It would likewise be undesirable, but I don’t know that it is much different from the myriad other things defendants do with their appearance to make them seem more sympathetic (and note that I am not at all suggesting that is the present defendant’s motivation for wearing a veil).
It is hard to imagine that a court would regulate whether or when a Jew could wear a kippah, or a Sikh could wear a turban. It is similarly hard to imagine that a single defendant’s right to observe her religion as she sees fit could possibly outweigh society’s interest in a fair trial. But in these circumstances, perhaps it should. The tricky thing about the niqab is that, unlike a lot of other religious garb, it covers the face. But if wearing it would work against the defendant more than it would benefit her, and she nonetheless chooses to wear it, then where is the harm?