Transcript in case dismissed because plaintiff Muslim woman refused to unveil to testify

Mon Dec 18 13:31:06 PST 2006

I think there is a real question as to whether the rule here is generally applicable.  By allowing a witness who is more than 100 miles away to testify by written deposition, Michigan has made a value judgment -- whatever the value of demeanor evidence, it is not worth forcing witnesses to travel more than 100 miles to the courthouse.  The burden of a two-hour drive is enough for Michigan to relax its insistence on demeanor evidence; the burden of a religious commandment is not.

Now courts may simply take the rule and the exception as the government frames them (the rule is a rule about decorum or dress, and not really about demeanor), rather than looking at the stated concerns behind the rule and the rule's potential underinclusiveness in responding to those concerns.  But I think that's a mistake, and a poor reading of Lukumi.

> Date: Fri, 15 Dec 2006 11:45:19 -0500> From: stevenjamar at gmail.com> To: religionlaw at lists.ucla.edu> Subject: Re: RE: Transcript in case dismissed because plaintiff Muslim woman refused to unveil to testify> > I think a better alternative would be to listen to the testimony from> the veiled plaintiff and then if the court decides that it can't judge> her credibility adequately, then she fails to prove her case by> failing to carry her burden.> > As a former litigator, I think for the most part demeanor was an> important part of assessing credibility. But, there were> cross-cultural problems and other aspects that make it far less than> perfect. Some people are very convincing liars. Some seem to be> lying even when not. But the fact that judging truthfulness is an> inexact art seems to be far way from the idea that demeanor is> unimportant. In some instances, it is the determining factor, even if> one assesses the meaning wrongly.> > Though I would have handled it differently, and think the judge should> have handled it differently, I don't see a constitutional violation> here. A person is bringing a civil suit in civil courts in a system> with relatively uniform and accommodating rules of decorum, dress, and> procedure. Favoring religion over compliance with obviously generally> applicable, neutral rules certainly passes the Smith test.> > I wonder, would it matter if she were the defendant rather than the> plaintiff? Where she was brought into court and could not defend> herself without violating her religious exercise beliefs? It seems> that even there, under Smith, we do not have a violation. But it> seems that in such a setting the coercive aspect would make it more> problematic not to accommodate a defendant than a plaintiff.> > It seems that a pre-Smith or RFRA approach here would require> accommodation for the person both as plaintiff and as defendant.> > Steve> > On 12/15/06, Christopher C. Lund <chlund1 at hotmail.com> wrote:> >> > I would have liked to see Judge Paruk do a little more to accommodate> > religious exercise.> >> > I don't understand why the Judge insists that demeanor evidence is> > necessary here. I don't know if there is more than the transcript, but> > nothing there suggests that the parties get beyond stating their names. If> > the case turns on some legal issue (or, indeed, as long as the case doesn't> > turn on the Plaintiff's factual account of the events), her demeanor won't> > even be relevant. And, even if it is relevant, courts often get by without> > evaluations of demeanor. Our system admits whole categories of hearsay> > statements, where the underlying declarant is obviously never observed by> > the trier of fact. Under Michigan rules, for example, a witness that is> > further than 100 miles away from the court can simply testify by written> > deposition. And all this is all putting aside the fact that many evidence> > scholars altogether reject demeanor as a reliable means of discerning the> > truth. See, e.g., Guy Wellborn, Demeanor, 76 Cornell L. Rev. 1075 (1991).> >> > And then there is the obvious: Doesn't it seem unfair to essentially bar a> > Plaintiff from turning to the judicial system for redress of her injuries as> > long as she refuses to compromise her religious beliefs? If someone> > attacks her, should her tort claims of assault be dismissed unless she backs> > down?> >> > ________________________________> >> > > Date: Thu, 14 Dec 2006 10:42:50 -0800> > > From: VOLOKH at law.ucla.edu> > > To: religionlaw at lists.ucla.edu> > > Subject: Transcript in case 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 thought I'd pass it along. I have a> > > PDF at http://volokh.com/files/ginnahmuhammad.pdf .> > >> > > Eugene> > >> > >> > >> > > 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.> > >> > > THE COURT: Okay.> > >> > > [MUHAMMAD]: Thank you.> > >> > > THE COURT: You're welcome, ma'am.> > >> > > Okay. Enterprise, case is dismissed.> > > _______________________________________________> > > To post, send message to Religionlaw at lists.ucla.edu> > > To subscribe, unsubscribe, change options, or get password, see> > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw> > >> > > Please note that messages sent to this large list cannot be viewed as> > private. Anyone can subscribe to the list and read messages that are posted;> > people can read the Web archives; and list members can (rightly or wrongly)> > forward the messages to others.> >> >> > ________________________________> > All-in-one security and maintenance for your PC. Get a free 90-day trial!> > Learn more!> > _______________________________________________> > To post, send message to Religionlaw at lists.ucla.edu> > To subscribe, unsubscribe, change options, or get password, see> > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw> >> > Please note that messages sent to this large list cannot be viewed as> > private. Anyone can subscribe to the list and read messages that are> > posted; people can read the Web archives; and list members can (rightly or> > wrongly) forward the messages to others.> >> >> > > -- > Prof. Steven Jamar> Howard University School of Law> _______________________________________________> To post, send message to Religionlaw at lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw> > Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
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