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Letting Witness Testify Veiled But Discounting the Testimony:

Several comments on the veiled witness thread suggested that the judge should have let the Muslim woman plaintiff testify velied, but discounted her testimony given his (and the other litigant's) inability to judge her demeanor. This alternative, the argument would go, does indeed put the woman at a disadvantage -- but it puts her at less of a disadvantage than dismissing her whole case would, and so it is the less restrictive means of serving the government interest in accurate factfinding. (I assume here, together with the legal system, that looking at a witness's face does advance accurate factfinding; that is certainly contestable as a factual matter, but it is a fundamental assumption of our legal system, and not one that I think the judge can disregard here.)

I at first thought that this wouldn't be feasible, and I'm still not sure that it would be, because it's not quite clear to me how the judge would implement this discounting of her testimony. I take it that he shouldn't just assume that she's lying about everything. Should he assume that she's lying -- or at least uncertain or evasive (demeanor evidence is supposed to be a cue not just to outright lies, but to these matters as well) -- about all those facts that are controverted by the other side? Only about some of those facts? If so, which ones? (To give some more concrete details, one news account reports that Muhammad "was contesting a $2,750 (£1,470) charge from a car hire company for damage to a vehicle she said was caused by thieves," so I take it the issue is whether the damage was indeed caused by thieves, assuming that the contract with the car rental company made her not liable for such damage.)

On the other hand, perhaps this isn't really that far different from a judge's dealing with a person whose face is naturally hard to read (perhaps because the person suffers from some neurological condition that gives him a flat affect). Presumably a judge would try to do as best he can in trying to figure out whether the person was telling the truth; couldn't he do the same here? (Would this suggest that the judge actually shouldn't discount the veiled witness's testimony at all?)

In any case, this struck me as an interesting matter, so I thought I'd put up a post about it and see what others have to say. Naturally, if the case were litigated solely on the testimony of others, or on documentary evidence, the matter wouldn't come up; but I assume that this issue arose chiefly because this small claims case, like other small claims cases, did rely heavily on the plaintiff's own testimony.

Justin (mail):
I'm pretty sure from my clerkship days that, at least, an immigration judge cannot simply state that a witness is lying, and discount everything that person says, simply based on demeaner. The standards as to what a factfinder can do with one who "does not appear credible," in terms of discounting part or all of their testimony, would probably vary from jurisdiction to jurisdiction.
12.14.2006 5:27pm
anonVCfan:
Isn't the argument that the judge could merely give the testimony whatever weight he felt it was entitled to under the circumstances? I.e. take it with a grain of salt, just as one does with other evidence that has certain imperfections?

The main problem I see is that the woman's insistence on wearing a veil puts her opponents at a disadvantage because they can't get as much mileage out of cross-examination. The factfinder can't see indicia of her surprise or discomfort if/when they find something damaging, nor can the cross-examiner detect this and decide to probe further.

Placing conditions on the conditions under which one will testify (I'll only testify in writing, I'll only testify with a veil) undermines the utility of cross-examination.

The benefit of cross-examination is a compelling interest of which the least restrictive means is making the woman show her face.
12.14.2006 5:29pm
steve lubet (mail):
Regarding the necessity of basing credibility determinations on facial expression, Eugene says: "I assume here, together with the legal system, that looking at a witness's face does advance accurate factfinding; that is certainly contestable as a factual matter, but it is a fundamental assumption of our legal system, and not one that I think the judge can disregard here."

Buy why can't a judge disregard a factually questionable assumption? Are judges bound to rely upon unreasonable assumptions forever? If so, how would more accurate assumptions ever be recognized?

And in any event, blind judges make credibility determinations all the time.
12.14.2006 5:36pm
Justin (mail):
anon, I think basically, for instance, if an applicant for withholding tells a story that is consistent and the government cannot show any evidence agaisnt the applicant's story, the general rule is that the IJ cannot simply decide that, because the refugee talks in a funny accent or slurs his vowels or whatever, that the witness is lying and thus rule for the government. A grain of salt will defeat no evidence at all, in that case. When the government provides some objective evidence of duplicity, or the witness's story changes or is internally inconsistent, the result will vary based on jurisdiction, if I recall correctly.
12.14.2006 5:39pm
lucia (mail) (www):
Based on the crack legal training and vast knowledge of the legal system I revealed earlier, I would suspect whether the witness is veiled or not, the judge could just try to do the best he could under the circumstances.

Having watched more episodes of "The People's Court" and other equally silly small-claims court shows than anyone should, it appears the tv judges mostly base their opinion on things the plaintiffs and defendants say. Seeing faces helps, but quite often, the waffling, hemming and hawing, and self contradictions are what make witnesses lose credibility. I know it's a guess, but likely real judges lean heavily on what the witnesses actually say.

Just to make this sound less silly, I also think seeing the witness is not all that important because I think in ordinary life people who talk to someone for any extended time also assess credibility mostly on what the person says and does more than how they look. (There are exceptions to this rule. Sometimes, people really do just look like they are lying; it's rare though.)
12.14.2006 5:45pm
John (mail):
What do you do with the witness who's just had a ton of botox?

Perhaps a need to wear a veil is a "disability" that simply must be accomodated...
12.14.2006 5:52pm
AdamSteiner (mail):
After thinking about it some more...

It seems that the judge would discount the testimony primarily based on how much he trusted the witness regarding religious requirements. If the judge thinks the witness is serious and honest, they might give testimony nearly full consideration, whereas, if the judge thought the witness was lying they'd discount it, seeing the veil as a way to mask facial reactions.

That the judge mentioned other Muslims who don't hold by the veil requirement cuts both ways. As Prof. Volokh pointed out, its a legitimate line of inquiry, but it also risks entering an area where the judge takes on an air of supremacy, deciding whether the witness's religious convictions have merit. Especially given that this judge admitted to not knowing the information, that's troubling.

Regarding blind judges...out of curiosity, how many are there? But the analogy may be misplaced. Instead, how about a witness who states "its against my religious convictions to orally testify, I'll only give written testimony," which, even if given in realtime, would rob the blind judge of an ability s/he has come to rely upon in judging truthfulness. Gut call is that this wouldn't be ok, but then again, I'm not blind.
12.14.2006 5:55pm
cvt (mail):
How is the woman in a veil any differnt from an actor who can convincingly disguise his or her true feelings? If an actor is testifying, the fact-finder may conclude that the facial expressions of the actor should be discounted and the credibility of the testimony judged based on other factors, such as whether it is consistent with other evidence.

In any case, it was simply wrong for the judge to throw out the entire case without at least determining whether the credibility of the plaintiff was important to determine a contested issue. The judge should have listened to all the evidence and decided whether he could decide it without giving weight to the contested parts of her testimony. If he thought that was necessary, he would be free to give it less weight than he would otherwise if she had testified without a veil.
12.14.2006 5:56pm
jfalk:
Courts routinely accept (written) deposition testimony where the testifier is not available. Couldn't she have been deposed by women before the trial?
12.14.2006 5:58pm
Steve:
It's a small claims matter. Depositions are out of the question.
12.14.2006 6:07pm
cvt (mail):
jfalk said: "Courts routinely accept (written) deposition testimony where the testifier is not available. Couldn't she have been deposed by women before the trial?"

There problem is that she was available so her deposition would not have been admissible.

But there are other analogous circumstances. For example, in a summary judgment motion, California law provides that when the only proof a material fact is a declaration or affidavit by an individual "who was the sole witness to that fact; or where a material fact [established solely by declaration] is an individual's state of mind, or lack thereof" the motion may be denied in the discretion of the court. CCP 437c(e).

That's not a perfect analogy to the small claims case, but it suggests that the judge should have done two things before he dismissed the case: (1) listened to all the evidence and (2) decided whether her testimony was material to a contested fact for which her credibility would be the decisive factor.
12.14.2006 6:13pm
Ken Arromdee:
As Prof. Volokh pointed out, its a legitimate line of inquiry, but it also risks entering an area where the judge takes on an air of supremacy, deciding whether the witness's religious convictions have merit.

I think we need to distinguish the questions "is this, in fact, required by the witness's religion as she claims" and the question "does the witness sincerely believe that her religion requires this"? The first question may be beyond the purview of a judge, but not the second question.
12.14.2006 6:16pm
JunkYardLawDog (mail):
How much of our we just don't like the whole wear a veil thing predicated on a long cultural history in this country of bad guys, thieves, and murderers wear masks to cover their faces, and the veil is just a slightly prettier version of the old cowboy bank robber or raving lunatic muslim fanatic killer face coverings?

Should muslim males not be allowed to testify while wearing the obligatory terrorist towel wrapped around their faces while holding a plastic AK-47? I mean if you are for the veil how can you be against the male terrorist towel around the face?

Just askin?

Says the "Dog"
12.14.2006 6:20pm
AdamSteiner (mail):
I think we need to distinguish the questions "is this, in fact, required by the witness's religion as she claims" and the question "does the witness sincerely believe that her religion requires this"? The first question may be beyond the purview of a judge, but not the second question.


Agreed in theory, but its difficult to keep them separate in fact. Absent an email or other evidence from the witness stating "I know I can take off the veil, but I think I'll win if I don't" the inquiry will boil down to whether the judge thinks the witness needs to do this (and thus isn't lying) or doesn't need to do this (in which case the witness is lying). What else could the judge do?

I also assume you mean the first question, what its required by the witness's religion, to mean that according to the witness, her religion requires it, and not that the religion requires it from the viewpoint of some objective individual. If not it gets even trickier.
12.14.2006 6:45pm
fun!:
How do we deal with blind fact-finders?

And why are we assuming that seeing the witness's face improves the accuracy of fact-finding? Isn't that a rather big assumption? I'd be more worried about jurors taking the side of whoever they most like the look of and ignoring the actual evidence -- why should we care who is the most highly trained actor?

I think it's pretty clear that this should be one subjective factor in fact-finding. If a judge or juror is going to consider witness demeanor, factor it in to the category of witness demeanor! Why is this even a hard question?
12.14.2006 7:10pm
ReaderY:
Unless it it can be shown that the state makes even a pretense of neutrally applying its rule -- if it actually disqualifies blind judges from office or prevents veterans with facial injuries from litigating or testifying, for example -- then the state here is simply not enacting a genuine facially neutral rule, and is instead enacting a rule aimed specifically at the religious based on specifically religious prejudices. If so Church of Lukumi Babalu Aye v. City of Hialeah 508 U.S. 520 (1993) controls here, and the rule needs to be struct down as a violation of the First Amendment.
12.14.2006 7:42pm
ReaderY:
Does this state disqualify blind jurors? Police officers with head injuries? Crime victims with head injuries?

If a criminal bashes a victim in the head, is the victim disqualified from testifying?

If so, welcome criminals! Honest citizens, better keep your heads down.

If not -- and I don't think so -- this judge is off his rocker.
12.14.2006 7:49pm
Nathan_M (mail):
Even when considering demeanor judges use more than facial expressions to assess credibility. Tone of voice and responsiveness of cross-examination are probably more important factors anyway. And of course the usual tools judges use, such as how consistent and plausible the witness's testimony is, and whether it is supported by other evidence, are also available.

As for how the judge would "discount" her evidence, I don't see how it would be any more difficult than any other witness. He might decide not to accept it at all, or to reject it where it conflicted with another witness, or to accept it entirely. It would be the same decision process as judges make with all other witness, except without the information of her facial expressions.

Judges are capable of taking all sorts of factors into account in assessing evidence. We trust them, for example, to weigh the evidence in a criminal trial to determine if an accused to guilty after they have seen, and decided to exclude, highly persuasive evidence such as a confession. What's so hard about deciding whether someone is plausible without looking at her face? Should burn victims be barred from the courts too?
12.14.2006 8:27pm
Respondent (mail):
Prof. Volokh,
Why should automatically assigning cases like this to a female judge do "symbolic damage" to our notions of equality? Surely our citizenry is mature enough to recognize that restricting cases like these to female judges in the name of advancing a first amendment value is no less discriminatory than restricting searches to same-sex officers in the name of advancing a fourth amendement value. The only difference between this case and your search example (feasibility problems aside) is the number of people who would take offense. Because of the culture we live in, far more people would object to a search by an opposite-sex officer than to showing their face to a member of the opposite sex. But it is no more rational to view as "discrimination" the accommodation of a person's objections in the case of the latter than the accomodation of a person's objections in the case of the former. In both cases, an activity that would be open to members of both sexes is being limited to one of sexes due to the sincere feeling of an interested party that placing an opposite-sex member at the position in question would have sexual overtones. And in neither case is there any real discrimination at all. What is really going on is segregation, a practice not to be considered discriminatory when the segregation is sexual as opposed to racial. Both sexes have plenty of opportunities to do the same task; they are only delegated based on the circumstances. While I agree that logistical problems would preclude the accomodation of the woman's request- there are just too many personnel at issue (the judge, the jury where applicable, the balliff, the litigants and the lawyers)- I think there is far more symbolic damage done by flat out rejecting the religious request at issue here (rejecting it without a determination that an objection of this sort would be unfeasible), than any symbolic damage to done by accomodating a sincere religious request due to a paternalistic fear of a perception of "discrimination" that may occur in the minds of the culturally insensitive.
12.14.2006 9:26pm
Sean M:
I do, in one sense, feel bad for this judge. He seems to have sort of tried, and this was a small claims matter on a crammed docket.

Who ever thought that the collective weight of several law professors and an entire cadre of legally savvy commentators would be brought down on his head.

Not saying the decision was right or wrong (I find the back and forth in the thread interesting), but who ever thought that a small claims case would get so much attention?
12.14.2006 10:14pm
Richard Aubrey (mail):
Respondent: Ref same-sex judge assignments.
First, we may have more than one interested party, of more than one gender. Then what?

Secondly, you presume sincerity on the part of the woman complaining.

Why? We have a number of examples of clearly manipulative appeals to cultural and religious practices which have no redeeming value. The woman who claimed to have been dissed for merely praying in a health club was actually blocking another's access to her locker. Confrontation and manufactured Islamophobia was the point.
The no-booze cabbies in Minneapolis were just informed this summer by the local Muslim Brotherhood Auxiliary that there was an ages-old Islamic custom.
Sort of like the ancient custom of firing automatic weapons at weddings.
The non-flying imams were not "just praying".
A slice at a time until only the string is left. Who'd fight for a single slice, and when only the string is left, why bother fighting for the string?
12.14.2006 10:37pm
ReaderY:
The First Amendment requires a presumption that religious beliefs are sincere.

Thir is a normal practice in a number of Muslim communities. There's no objective reason to assume anything unusual. Any perception of unusualness would be due solely to the observer's personal unfamiliarity or discomfort. -- no reason to project such things onto the person being observed.

I see no difference between people who presume that Muslims are insincere and people who presume that black people are guilty. It's not clear to me that this idea that people belonging to religions one disagrees with can be presumed to be insincere in their beliefs represents a genuine belief -- a misguided but sincere prejudice -- or simply a manipulative attempt to make an end run around the First Amendment's protections. Do the people making these blanket statements about people of other faiths sincerely believe what they are saying?
12.14.2006 11:16pm
ReaderY:

religious practices which have no redeeming value



The Framers of the Bill of Rights, in enacting the Free Exercise Clause of the First Amendment, enacted into our Constititution the fundametnal idea that all religious practices have redeeming value, and government is not to distinguish between practices the majority likes and practices it dislikes. Religious people are entitled to their own ideas about redemption and do not have to accept other people's notions of what does and does not redeem. We are not at liberty to run our society otherwise.
12.14.2006 11:23pm
Lev:
So. This women wants the requirements of Islam to be applied in the processes of US courts. That's a real good idea.

But if we are going to do that, then, what is the value of a woman's testimony, under the requirements of Islam, eh? Is it worth anything?
12.15.2006 12:25am
Respondent (mail):
Richard,
Your point about more than one interested party merely underscores my view that the accomodation of the woman's request here was unfeasible. I was just responding to Professor Volokh's contention that accomodating the woman's request would do "symbolic damage" to the court system.
As to your point about sincerity, I certainly would agree that you can't always tell if a religious objection is sincere. (The benefit of hindsight almost certainly answers the question here; the woman chose to forfeit her suit rather than to expose her face to the judge). However, if we are to maintain our nation's long tradition of providing accomodation to religious groups, we will have to judge the sincerity of beliefs and do are best to accomodate them, and do so with respect and sensitivity for cultural traditions that are very differnet from our's. I don't think that there can be any reasonable doubt here that, of the world's approximately one billion Muslims, at least some of them sincerely believe that women are obligated to cover the faces in the presence of men. In any event, we have no right to deny reasonable requests for religious accomodation just because, like any right, there will be people who abuse it.
12.15.2006 12:52am
Public_Defender (mail):
While I agree that the result was right, the woman's demand wasn't outrageous on a moral level. As the professor points out, there's a darned good argument that seeing someone's face doesn't really help us determine who's telling the truth. But it's a tradition that's part of our system (right to confront your accuser, for example).

The degree that we must cover ourselves is cultural. To some women raised in Islamist (as opposed to Muslim) countries, showing their face in public would make them feel as naked as an American woman showing her breasts in public. By contrast, in parts of Africa, showing breatss is as normal as showing the face.

[The judge is right: many, if not most, Muslims believe that there is no religious requirement to cover the face. The Quran only requires modesty and for women to cover their "odornments." Interpretation of these sections varies wildly.]

Remember, it may be more superstition than reality to say that seeing someone's face helps us determine whether they are telling the truth.

So, what would we think of an African court that told an American woman that she had to remove her shirt during her testimony so that they judge whether she was telling the truth by how her breasts jiggled?
12.15.2006 7:01am
Richard Aubrey (mail):
ReaderY.

A perception of unusualness doesn't need to come from the observer's discomfort. Most of us are grownup enough to either not be discomfited by such trivia, or to overlook discomfort.

The concern for sincerity may come from a larger context, such as the provocations I mentioned in which religious custom is invoked for no redeeming value. What, after all, is the redeeming value of praying in front of someone's locker and complaining of discrimination when asked to move?

It is clear that at least some of the protestations of religious custom are spurious. That would not, apparently, be the case with the woman in question. It is, however, the fault of her coreligionists who are using supposed relgious practice for poltical reasons, and doing so in a fashion that is not exactly unclear. She needs to talk to them and tell them how hard they're making it for honest folk like her.
Or, in order to avoid wasting her time, she could stack BBs.

It might be a lesson for her to be forced to be unveiled in a US court. When she is not immediately assaulted by legions of witnesses, court clerks, judges, bailiffs, and janitors, she might learn something about how real men deal with women.
12.15.2006 7:38am
Tim (mail):
I think that a veiled face has no more ramifications than if a witness decided to show up in a bikini. Take the testimony, but understand that the judges, or juries perception of the witnesses truthfullness will be evaluated by what they wear.
12.15.2006 1:24pm
ReaderY:

The concern for sincerity may come from a larger context, such as the provocations I mentioned in which religious custom is invoked for no redeeming value.... It is, however, the fault of her coreligionists who are using supposed relgious practice for poltical reasons, and doing so in a fashion that is not exactly unclear.


Are you suggesting that if we were at war with, say, a primarily Catholic or Jewish country, it would be constitutionally acceptable to declare that Catholic or Jewish religious practices have "no redeeming value" and are simply "supposed religious practice"s being fomented "for political reasons?"

Even to say such things is to recognize that they are nonsense. The very purpose of the First Amendment is to protect us from persons who are motivated by hatred towards other religions and people who practice them. Such hatred is not a proper basis for government conduct.
12.16.2006 7:57pm
ReaderY:

I think that a veiled face has no more ramifications than if a witness decided to show up in a bikini. Take the testimony, but understand that the judges, or juries perception of the witnesses truthfullness will be evaluated by what they wear.


I think for the most part the American people are capable of seeing through such externalities and can get a sense of whether a person is truthful or not, whether that person is wearing a Hajib, Hassidic black hat and long coat, a Sikh turban, or Rastafarian dreadlocks.
12.16.2006 7:59pm
ReaderY:
As to the women-blocking-the-locker incident, many religions require regular prayer and have portions where the penitent is not supposed to interrupt. A person who is supposed to pray at a certain time but has no suitable place can be caught in a bind as difficult as a person who has to go to the bathroom, an experience we are likely all familiar with and which can lead to socially embarassing situations. Ordinary tact, a desire to solve rather than exacerbate peoblems, and a little bit of reasonable accommodation could likely have handled the situation; perhaps they could have waited that time, and found some alternative to praying right in front of ones locker or some way to avoid interrupting other lockers. If one or more of the parties was being unreasonable, it likely had nothing to do with their religion.
12.16.2006 8:08pm
Twill00 (mail):
Exactly - Just try showing up to give testimony in a bikini, and see what happens. Judges have tremendous discretion over what demeanor is allowed in their courts.

You guys are lawyers rather than sociologists. Researchers estimate that verbal cues are less than 10 percent (was it 7?) of the information received by listeners. Add vocal cues (intonation) to make up less than half, with the other more-than-half made up of other facial cues and body language. If a person's face and body are hidden, you receive less than half the information with which to make your decisions on veracity. You can go back to Edward T Hall's work in the 60s or Google some more recent stuff.

By the way, her choice to temporarily forfeit the case rather than unveil says nothing about her integrity. The case goes on.
12.18.2006 9:08pm
ReaderY:
A critical difference is that a middle-aged woman in traditional dress is a figure who commands respect, not approbrium, in virtually all traditional societies, and most of us are not so far from the mores of traditional society that this way seeing things has totally left us. Oakland County, MI, where this case came from, has one of the highest concentrations of Muslims in the United States.

Part of what makes government, and government officials, legitimate is their ability to respect what is traditionally regarded as respectable. Judges who express anger at babies for crying, or curse elderly people for being slow, would rightly deserve the approbium of society.

A woman in traditional garb similarly commands respect by many in society. One is more likely to call such a woman a "ma'am" (as in, "Yes, Ma'am.")

Nobody (in this country) has died from attacks by women in veils or other forms of traditional dress. There is no war, there is no justification, for the complete undoing of traditional measures of respect. One of George Orwell's most fundamental truths is that traditional conceptions of decency preserve our humanity and help form a check on arbitrary power.
12.18.2006 10:47pm
ReaderY:
Is there a rational difference between a rule that implementing a social belief that people who look you in the eye are more truthful than people who don't, and a rule implementing a social belief that people who don't have sex outside of marriage are more honest than people who do? They're both traditional rules, both reflect widely-held societal beliefs based on traditional values. Should either have such an absolute character as to be an absolute bar to a person have a day in court?
12.18.2006 10:51pm
gasman (mail):
"Another typical case of blind American justice"
Alice's Restauruant
12.19.2006 9:04am