Confronting religion: veiled Muslim witnesses and the confrontation clause.

• Author: Murray, Brian M.

INTRODUCTION

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. Part II discusses current doctrine regarding the Confrontation Clause as well as religious exemptions analysis under the Free Exercise Clause. Part III demonstrates why the witness could plausibly argue for an exemption given current doctrine for both constitutional provisions. Part 1V recognizes the potential problems with granting such an exemption. Finally, this Note proposes two possible solutions to the constitutional conflict and analyzes each solution's shortcomings.

1. STRONG AND SEEMINGLY IRRECONCILABLE INTERESTS

   One of the major difficulties with the above scenario is that it implicates various constitutional interests. Indeed, deciding whether to grant a religious exemption to a witness in a criminal case has ramifications for the witness, the criminal defendant, and the state. Thus, this Part explicates the numerous interests competing for attention.

   1. The Criminal Defendant

      Criminal trials revolve around the guilt or innocence of the defendant. The trial determines whether the liberty that the defendant enjoys to act as a normal citizen will cease to exist in the future. (10) The potential loss of liberty warrants granting individuals a right to defend themselves. (11) This concern is the rationale for affording the accused certain constitutional safeguards with the intent of establishing a fair trial. Indeed, nearly the entire Bill of Rights--and especially the Sixth Amendment--reflects the need to take these principles seriously in a free and democratic society. (12)

      A criminal defendant has two explicit constitutional interests in the above case. First, and more broadly, he is entitled to a fair trial. (13) The government must meet its burden through lawful procedures in order to convict, including court procedures that protect a number of individual constitutional rights. (14) Second, and more specifically, every criminal defendant is guaranteed the opportunity to "be confronted with" the individuals that will testify against him. (15) The Supreme Court has held that the Confrontation Clause affords defendants a strong preference for face-to-face confrontations. (16) These constitutional safeguards and protections are ancillary to significant intangible interests, such as the maintenance of one's good reputation and avoidance of social stigma attached to one's name as a result of a criminal conviction. (17)

   2. The Muslim Witness

      Like any religious believer entitled to protection under the Free Exercise Clause of the First Amendment, the Muslim witness has a strong claim that her religious freedom should be protected. She can claim that wearing the veil is an expression of religious belief, (18) and that removing it to reveal her face would burden her free exercise because it would force her to choose between following the law and following the dictates of her religion. (19) And she is not without ample support for this position: the text of the First Amendment, numerous Supreme Court decisions describing the nature of burdens and granting exemptions, and a comprehensive history and tradition of religious accommodation in the United States provide strong legal justification for taking her position very seriously. (20) Furthermore, the witness may also have a protectable privacy interest in wearing her veil. (21) Finally, her refusal to remove the veil has drastic implications for her access to courts in both the criminal and civil contexts, thereby impacting her ability to participate as a citizen. (22)

   3. The State

      The situation is unique for the State because it has strong interests on each side. The integrity of the criminal justice system, which includes its ability to procure truth and justice as well as protect the rights of individuals, is at stake. The State is interested in ensuring that the criminal justice system is reliable and credible. (23) The State must also adhere to the procedural guarantees outlined in the Constitution. At the same time, the State maintains a strong interest in protecting religious freedom, especially given the considerable history of religious accommodation in America. (24) Further, the State might consider crafting public policies cognizant of non-Western traditions given the pluralistic composition of the United States. (25)

      The tension between these interests is ripe for analysis because it involves the interplay of the Constitution and its textual guarantees, Supreme Court jurisprudence, history and traditions, public policy, and the legitimate boundaries of religious practice in a society governed by the rule of law. The question is whether a careful balancing of the interests may occur so as to minimize encroachment on these respective interests or whether a tragic choice must be made. (26)

2. HISTORICAL VALUES AND CURRENT SUPREME COURT JURISPRUDENCE

   It is crucial to understand the historical underpinnings of each constitutional protection as well as current understandings of their meaning and scope in order to determine a possible resolution to the conflict. Any workable solution must account for the current state of the law.

   1. The Confrontation Clause: From Absolute to Preferential Right

      Underlying many decisions concerning the Confrontation Clause is a concern for fundamental fairness, reflected through a desire for adequate truth-seeking processes that are both reliable and credible: "[T]he central mission of the Confrontation Clause ... is 'to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that the trier of fact [has] a satisfactory basis for evaluating the truth of the [testimony].'" (27)

      In Mattox v. United States, (28) the Supreme Court highlighted the central concerns of the Confrontation Clause: fairness and the reliability of testimony. (29) At the same time, however, it left the door open for exceptions to the general right of confrontation for public policy reasons and the necessities of a particular case. (30) The Court also has linked the confrontation right to cross-examination...