Transcript in Case That Was Dismissed Because Plaintiff Muslim Woman Refused to Unveil To Testify:

This case was in the news in mid-October, but I just got a scanned version of the transcript, and I think it's much worth reading. I have a PDF here, but I thought I'd include the full text:

Ginnah Muhammad d/b/a Sisters of Second Chance v. Enterprise Rent-A-Car, Small Claims Hearing before Judge Paul J. Paruk, Hamtramck, Michigan, Oct. 11, 2006:

THE COURT: Hi, good morning, everybody. I am going to handle a small claims matter first and then I'll do a couple of landlord-tenant cases. Is it Ginnnah Muhammad and Enterprise Rent-A-Car? Who is who? I need one person from Enterprise. Come on up and stand over here on the right-hand side, please, for me.

Are you Ginnnah Muhammad?

[MUHAMMAD]: Yes, sir.

THE COURT: You need to stand over there. Ms. Muhammad, did my court officer talk with you about taking your veil off?

[MUHAMMAD]: Yes, sir.

THE COURT: Okay, and what is your suggestion or what are your thoughts on that?

[MUHAMMAD]: I said, "No, I can't."

THE COURT: Well, let me explain to you why I think you have to do it and then you tell me why you don't have to do it and then we'll try and make a decision as to how to proceed.

[MUHAMMAD]: Yes, sir.

THE COURT: One of the things that I need to do as I am listening to testimony is I need to see your face and I need to see what's going on and unless you take that off, I can't see your face and I can't tell whether you're telling me the truth or not and I can't see certain things about your demeanor and temperament that I need to see in a court of law, okay, so you tell me why is it that you don't want to take your veil off.

[MUHAMMAD]: Well, first of all, I'm a practicing Muslim and this is my way of life and I believe in the Holy Koran and God is first in my life. I don't have a problem with taking my veil off if it's a female judge, so I want to know do you have a female that I could be in front of then I have no problem but otherwise, I can't follow that order.

THE COURT: Okay. Well, no, I don't have a female judge. I'm the Judge that's here, okay, and second of all and I mean no disrespect to your religion, but wearing a veil I don't think is a religious thing -

[MUHAMMAD]: Well, that's your preference, sir.

THE COURT: — I think it's a custom thing and –

[MUHAMMAD]: That's your preference.

THE COURT: First of all, hold on. Hold on. It's not my preference. I have no clue about any of this information, okay --

[MUHAMMAD]: That's what I'm saying.

THE COURT: — but this has come up in my courtroom before, and in my courtroom before I have asked practicing Muslims and the practicing Muslims have told me that, "No, Judge, what I wear on top of my head is a religious thing and what I wear across my face is a non-religious thing. It's a custom thing."

[MUHAMMAD]: Well, that's not correct.

THE COURT: Well, this is what they have told me and so that's the way that I am running my courtroom and that's how I have to proceed.

[MUHAMMAD]: And I respect you, Your Honor, and --

THE COURT: Fantastic.

[MUHAMMAD]: — I would like to ask for a change of venue.

THE COURT: Well, you can't have a change of venue. You're the one who decided to file the lawsuit, okay --

[MUHAMMAD]: Yes, sir.

THE COURT: — and so that's where we are today. So you have a couple of options today as far as I am concerned. You can either take it off and you can give me the testimony and after the hearing is all done and over with and if you want to put it back on, I don't have any problems with that but if, in fact, you do not wish to do it, then I cannot go forward with your case and I have to dismiss your case.

[MUHAMMAD]: Thank you, sir. You have a great day.

THE COURT: Okay. Well, first of all tell me what you wish to do.

[MUHAMMAD]: I wish to respect my religion and so I will not take off my clothes.

THE COURT: Well, it's not taking off your clothes. All I am trying to do is ask you to take off the part that's covering your face so I can see your face and I can hear you and listen to you when you testify, and then you can put the veil back on. That's all I am asking to do, ma'am.

[MUHAMMAD]: Well, Your Honor, with all due respect, this is part of my clothes, so I can't remove my clothing when I'm in court.


[MUHAMMAD]: Thank you.

THE COURT: You're welcome, ma'am.

Okay. Enterprise, case is dismissed.

My sense is that the judge reached the right result, and reached it the right way. Being unable to testify in court without violating one's religious beliefs is indeed a very serious burden on religious believers: If this situation became widespread, members of that religious group would be easy marks for a variety of predators.

At the same time, the factfinder's ability to observe a witness's face when she is testifying is generally seen by our legal system as important to assessing the witness's candor. Perhaps people overestimate their ability to judge truthfulness based on facial expressions. But our legal system largely rests on the assumption that factfinders are indeed able to helpfully evaluate the witness's demeanor. So long as that's true, then it seems to me unfair to the other side to carve out an exemption from the witness's duty to show her face in court.

Note that Michigan courts have interpreted the state constitution as mandating religious exemptions from generally applicable laws when (1) the law substantially burdens a religious observer's practice, unless (2) the law is the least restrictive means of serving a compelling government interest. My view is that there is a substantial burden here, but that requiring testimony with the witness's face exposed is indeed the least restrictive means of serving a compelling interest.


Female Judges for Female Muslim Litigants?

Some commenters on the veils in court thread asked what I thought about the veiled Muslim woman's suggestion that the case be tried in from of a woman judge. I'm pretty sure that this won't work as a general matter: In many cases, witnesses have to testify before juries, and there are obvious problems with insisting on all-woman juries as well as woman judges. But even if this proposal is limited to trials before judges, it still won't work.

First, the litigants and lawyers also generally have a right (at least setting aside cases where the witness's life may be in danger) to see the witness's demeanor; and often the litigants and lawyers will be men. And, second, I think the court system has an independent and sufficiently strong interest in treating all judges (and jurors) equally without regard to sex. I realize that some sex-based accommodations are justified under exceptions to antidiscrimination rules, for instance when a woman guard or police officer is used to do pat-down searches and especially body cavity searches of women, and a male guard or officer is used for searches of men. But it seems to me that imposing similar sex classifications for the judges -- who actually preside over cases, and who in nonjury trials decide the facts -- would pose more serious (albeit chiefly symbolic) problems for the legal system, problems that the system can and should resist acquiring.


Second-Guessing a Claimant's Religious Beliefs:

A commenter noted that the judge in the veiled litigant-witness case seemed to be second-guessing the claimant's religious beliefs in some measure. A judge can't reject a claimant's religious objection to some law because he thinks the claimant's objection is irrational, not broadly held by her coreligionists, or an unsound interpretation of her scriptures. The judge could hold that, as a matter of law, no religious exemptions are available (either because the state takes a general no exemptions view, or because denying the exemption is the least restrictive way of serving a compelling government interest). The judge could also find as a matter of fact that the claimant is insincere in her claimed religious belief; that's often a troublesome form of inquiry, but necessary for any religious exemptions regime to work. But he can't say, for instance, that this Muslim claimant should lose because most Muslims don't hold the views that this claimant says she holds.

On the other hand, I think that a judge may probe the claimant's beliefs by bringing up attitudes that the claimant's coreligionists hold, and to see if the claimant might ultimately acknowledge that she too would go along with those views. (I say "I think" because I've seen no caselaw on the subject, so this is my sense of where the broader precedents tend to point.) The line between cultural traditions and religious mandates is often unclear, and even some religious believers might at first confuse the two. Occasionally, some probing will lead the believer to sincerely acknowledge that something that she at first thought was religiously forbidden is not actually forbidden, but just unfamiliar or distasteful.

If the believer sincerely comes around to this view -- which is to say expresses a willingness to accommodate the government's interests -- the result could be a win-win situation: In this case, the court could decide the case on the merits, and the woman could testify without feeling that she's violating her religious obligations. Conversely, I don't think that a judge has an obligation to just stop questioning the moment the religious claimant raises a religious objection, and make a decision based on the claimant's initial formulation of her objection (which may be the broadest possible formulation, and broader than what the objector herself would come to after some conversation and reflection). It's true that this sort of discussion might sometimes lead to the claimant feel unduly pressured, or might lead to the judge impermissibly rejecting an objection because he finds it irrational or uncommon. But on balance, it seems that this sort of probing of the witness's beliefs is permissible.

Of course, if the believer continues to assert that she has a religious objection, because she doesn't share other Muslims' less restrictive views about the veil, then the judge has to take her beliefs as she sincerely describes them to be (unless the judge concludes that she's lying). That's what I read the judge to have done here. He tried to persuade her to accommodate the legal system's position, by explaining the rationale for the position and by pointing out that other Muslims are willing to accommodate it. But when she insisted that her religion forbade her from removing her veil, he denied the exemption request on the grounds that granting it would unduly undermine the factfinding process.


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.


Michigan Supreme Court Adopts Rule Barring Veils on Testifying Witnesses:

That's how I read the proposed amendment to Michigan Rule of Evidence 611 that was apparently adopted today:

The court shall exercise reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons.

Note, though, that the Detroit News reports that "The Michigan Supreme Court today adopted a court rule that allows judges to prohibit witnesses from wearing veils in court." Perhaps the adopted rule was different from the proposed rule I quoted. But if it's the same as the proposed rule, then it sounds like judges must prohibit veils for testifying witnesses, since the rule says "[t]he court shall exercise reasonable control ... so as to ... ensure that the demeanor of such persons may be observed and assessed" (emphasis added).

I should note that there's a lot of controversy among experts about whether observing a person's demeanor really does help laymen assess the person's credibility. I have seen claims (I haven't researched this closely myself) that in fact observation is completely useless except to those who are trained in certain ways. But the importance of demeanor evidence has long been assumed by our legal system, whether rightly or wrongly, and this decision seems consistent with that assumption. It may even be necessary if that assumption is accepted, unless letting the witness testify veiled but discounting the testimony is somehow made to work as an option (and it's not clear to me that it can be).

Thanks to Rob McEachern for the pointer.