Michigan Muslim veil testimony rule

[david griffiths]

A very similar issue arose in New Zealand in 2005. Two Afghani women, who had been called by the Crown/prosecution to testify in a criminal trial, requested they be able to wear a burqa at the witness stand (Police v Razamjoo [2005] DCR 408 (District Court, Auckland)). They asserted their right under s 15 of NZ's statutory Bill of Rights to exercise their religious beliefs in public. The defence claimed that for the judge to allow this would jeopardise the right to a fair trial of the accused. (Note there is no direct equivalent of the Confrontation Clause in NZ, merely a right to "cross-examine" witnesses, also guaranteed in the Bill of Rights Act). The prosecution persuaded the judge that facial demeanour is an unreliable form of testimony, and cited US social science research to back this up (eg, O Wellborn “Demeanor” (1991) 76 Cornell L Rev 1075). Although the judge accepted the thrust of the social science data, he balked at allowing fully veiled testimony; he regarded the public's right to see justice carried out in public, or "open court" as outweighing the right to religious freedom. The judge ultimately decided to require the witnesses to unveil, but ordered the testimony to be given behind a screen, where only the judge and counsel could view their faces (as in child sex abuse cases). Most agreed this was a satisfactory outcome.

DH Griffiths
PhD Candidate
Faculty of Law
University of Auckland
New Zealand
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