The persons who wear face coverings, such as a niqab, is it permissible for a court to require them to not wear it during testimony?

Question

It would help if they were lying on the stand, but more commonly, the jury or the judge who is the trier of fact and decides what weight to give testimony might benefit from being able to see facial expressions. But also most people would wish to comply with religious requirements pertaining to their face covering, if they believe in such.

What is the ordinary practice in courts for this?

There is not a particular country I need information to be from, but the viewpoints taken in America, Canada, and France would be the most interesting to me given the different approaches to religion and the judiciary taken in these countries.

Answer 1

canada

This question was directly addressed by the Supreme Court of Canada in R. v. N.S., 2012 SCC 72. The issue question was "when, if ever, a witness who wears a niqab for religious reasons can be required to remove it while testifying."

The Court rejected both a rule that a witness would always be allowed to wear a niqab and a rule that a witness would never be allowed to wear a niqab. Instead, "the answer lies in a just and proportionate balance between freedom of religion on the one hand, and trial fairness on the other, based on the particular case before the Court" (para. 31). The assessment must be case-by-case, following a four-stage analysis:

1. Would requiring the witness to remove the niqab while testifying interfere with her religious freedom?

This is not an inquiry into what Sharia law requires, but instead relates to whether the person has "sincere religious reasons" for wishing to wear the niqab while testifying (para. 11). "The value of adherence does not depend on whether a religious practice is a voluntary expression of faith or a mandatory obligation under religious doctrine" (para. 36).

2. Would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness?

Some witness evidence is uncontested, and credibility and cross-examination are not really at issue. In these cases, "being unable to see the witness's face will not impinge on the accused's fair trial rights" (para. 28).

3. Is there a way to accommodate both rights and avoid the conflict between them?

The parties should consider reasonably available alternatives that would "conform to the witness's religious convictions while still preventing a serious risk to trial fairness" (para. 33).

4. If no accommodation is possible, do the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so?

Here, the Court listed various factors that would assist in this weighing: how important the practice is to the claimant; the chilling effect on other potential witnesses/complainants if they know that to testify will require them to remove their niqab; the extent to which cross-examination and credibility of this witness is central to the case; the nature of the proceeding; the nature of the evidence to be given (paras. 34–45).

All of this would be argued and decided in a voir dire before the witness is called to give their evidence.

Answer 2

Yes

new-south-wales

The Handbook for Judicial Officers contains a section on Islam.

Muslims who live in Australia are considered to be living in that country under a covenant. They must, therefore, comply with the laws of that country of residence as this is considered in Islam as loyalty to the covenant which they have entered into. This is a position mandated by the Holy Quran: for instance, see Chapter 5 at 1; Chapter 17 at [34]; and Chapter 16 at [91].

It is not contrary to Sharia law for a woman to uncover her face when she is giving testimony in court, whether she is a witness in a case or is there to witness a deal, and it is not contrary to Sharia law for the Magistrate or Judge (male or female) to look at her in order to know or identify who she is, make assessments as to credibility where this is an issue and protect the rights of all concerned.

If called upon to give evidence in court, it is not contrary to Sharia law for a woman to uncover her face and for it to remain uncovered when she is giving evidence so that the magistrate or judge may identify her; make assessments as to credit; and in order to protect the rights of all the parties in the proceedings.

If gives oral evidence in court, they must do it with their face uncovered. If they have no choice about giving evidence, then they have no choice about uncovering their face. If they do have a choice (they are a party in a civil case or a defendant in a criminal case), they can choose to uncover their face and give evidence or remain covered and not give evidence.

This procedure has been upheld at an intermediate appeals level but not yet at the State Supreme or Australian High Court level. Victoria does not allow anyone in the court, including in the public gallery, to have their face covered.

Answer 3

There isn't a clear answer in the US. The Confrontation Clause conflicts with the Free Exercise Clause on this point. In Commonwealth v. Copper, an eyewitness refused to remove her facial covering on religious grounds. The conflict was resolved by the trial court by ordering her to remove her face covering, after the court had been cleared of spectators. The defendant's right to a public trial was somewhat compromised, and the witness's right to exercise of her religion was somewhat limited. Defense counsel did not object, and defendant was convicted. Copper appeal pro se on the grounds that his Public Trial Clause rights had been objected, but a panel of the Pennsylvania Superior Court disagreed.

Volokh disagrees, pointing out that "the First Amendment has been read as securing the public's right of access to court hearings". Volokh points out that this ruling does not apply generally in the US, it reflects some quirks of Pennsylvania, e.g. "Pennsylvania is alone in ignoring the Supreme Court's public trial jurisprudence".

In a different later case in Pennsylvania, an appeals panel in the nonprecedential case Commonwealth v. Smarr was likewise convicted after testimony by a Muslim female was allowed to wear a face scarf. The court dismisses the Confrontation Clause argument saying that

No precedent has established that a witness's clothing or accessories renders a physical, in-court confrontation other than face-to-face, particularly where the clothing does not obstruct the witness's eyes, and we decline to do so under the facts of this case. We therefore hold that Smarr's right to be brought face-to-face with his accuser was satisfied.

The matter of balancing the Confrontation Clause and First Amendment trial access rights versus Free Exercise has not come up in a sufficiently diverse set of jurisdictions in the US to state a general trend.