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.
Related Posts (on one page):
- Michigan Supreme Court Adopts Rule Barring Veils on Testifying Witnesses:
- Letting Witness Testify Veiled But Discounting the Testimony:
- Second-Guessing a Claimant's Religious Beliefs:
- Female Judges for Female Muslim Litigants?
- Transcript in Case That Was Dismissed Because Plaintiff Muslim Woman Refused to Unveil To Testify: