There doesn’t appear to be much new election news yet, and the world goes on regardless. I held this over for a couple of days, but I think it’s still well worth discussing – RM.
A court case in Western Australia has made the international news. Not so much for the details of the crime, which relates to alleged fraud at an Islamic school. The fuss relates instead to the judge’s decision, upon the defence team’s request, to refuse to allow a witness, Tasnim, to wear a niqab while giving evidence.
For what it’s worth, I think the judge’s decision is defensible in terms of maintaining the traditions of the court, in which the jury is given the opportunity to eyeball witnesses as they give their testimony. The court process makes all manner of impositions on those involved; witnesses and jury members are routinely compelled to attend. Witnesses can be forced to discuss extremely embarrassing and distressing matters, with the threat of gaol for for contempt of court or perjury if they do not do so.
We impose this often profound unpleasantness and distress on those involved because, rightfully, society regards crime and punishment as a very serious matter. As such, the undoubted embarrassment and discomfort of Tasnim (the best I can do to imagine the embarrassment is to imagine myself having to testify naked, but I very much doubt even that would compare) are outweighed by the importance of the jury’s ability to assess the truth or falsity of her testimony.
Except that, at least as far as the psychological literature goes, being able to see somebody’s face might not be terribly useful for most people in determining whether somebody is lying or not.
Probably the best-known research on spotting lying is that of Paul Ekman. One widely-cited study of Ekman’s examined the ability of various professionals involved in the American legal system – to identify whether videotaped subjects were lying or not. Groups of police, judges, professional polygraphers (if that’s not an oxymoron), psychiatrists, and (for comparison) undergraduate students all failed to perform any better than chance; only US Secret Service agents were significantly better than a coin toss at identifying lying.
Furthermore, Ekman’s results replicate an earlier cited study that showed no connection between participants confidence that they can detect lies, with actual ability to do so.
While there are any number of quibbles as to why the results of Ekman’s study aren’t generalizable to the courtroom, it’s nonetheless interesting that the best-known research in this area doesn’t support the idea that juries – a random group of citizens with no special training or aptitude – will pick up useful information on witness credibility by watching a witness’s face.
There are other considerations, of course. Aside from concerns about the relevance of the research I’ve mentioned, a judge might be concerned that jurors might discount testimony that they might otherwise find credible from a witness whose face they can’t see. So, on balance, I still reckon the judge made a defensible call. But it’s a real 50-50.
And, in case it’s not obvious, I don’t see how a decision to require the removal of a niqab in these very specific circumstances provides any support for requiring its removal in others.
UPDATE: I’ve fixed the link to the Ekman study. It’s worth a read.
UPDATE 2: A 2007 post from Legal Eagle on a similar case in the USA.
Friends who have grown up in orthodox Jewish families are dead set against the niqab. They argue that some women might chose to don the niqab but women do not have the choice to stop wearing it.
I think that muslim women don garments that shroud their face so that they do not have an individual identity in society. Theoretically these women should remain at home while their menfolk work and shop like the Taliban insist in Afghanistan. I would be really incensed if an Australian or state public servant could work in a public facing position shrouded in a niqab.
I have the right to know the identity of the people I deal with and a shrouded woman is a non-person. So I think the court decision is correct.
When I read about this I wondered it would be easier to allow this woman to give video evidence, so that she wasn’t in the same room as everyone else. Would that help her? As it stands, she’s no longer being called as a witness.
I also take your point that juries may have discredited her evidence if they couldn’t see her face, because of the expectation that we should be allowed to read faces.
Interesting article by a Muslim woman in the Huff post: “Why i hate the burqa, but why i wear one.”
http://www.huffingtonpost.com/sabria-jawhar/why-i-hate-the-burqa—-a_b_669953.html
It pretty much follows the line of the fatwa issued by Saudi Sheik Aedh al-Garni a few weeks back who said in the Saudi-owned daily Al-Hayat “..its permissible for Muslim women to reveal their faces in countries where the Islamic veil is banned to avoid harassment.
“We should not confront people in their countries or elsewhere. In case a ban is enforced against a Muslim woman there – and as a consequence there is a reaction or negative implications or harassment or harm – it is better for the Muslim woman to reveal her face.”
I think, with Fine, that an option for video evidence (as in sexual assault trials) is the most sensible approach. At least you don’t *feel* like you are being stared at. An all-woman courtroom might also work in some situations, with male witnesses being videoed instead.
Fine @ 2 – although it was the defence who objected (who have an interest in her evidence not being accepted by the jury) rather than the prosecution so presumably this was just a legal strategy to intimidate her into not testifying. I don’t think that taints the judges decision though – and am rather undecided about it all.
Is the defendant Moslem? It appears likely given that the charge relates to an incident in an Islamic institution.
While this is not relevant as regards to the decision, if the defendant was moslem, it would be relevant to the social commentary. At the moment the discussion centers on the big bag “christian” legal system opressing a moslem woman. If the defendant was also moslem, he (as a person involved in his defence) is also part of the decision to request that the witness remove her headdress to give testimony.
Chookie, would you be prepared to allow all witnesses to choose to testify via video link?
While I think the research on lying is interesting, and obviously of some relevance in this context, I think the sense of discomfort at having someone give evidence from inside what is effectively a tent of opaque material was a major if unacknowledged factor in the decision not to allow it. And this does link this case to other issues about the public wearing of the niquab.
You’ve said that being asked to remove the niquab in public might be felt [by the wearer] to be like being asked to go naked – or worse. This of course raises the question of the value of a culture, or religion, or tradition, that makes women feel that way about having her face uncovered in public. A woman might feel terrible about going about without the niquab. Others, especially in a Western society, might feel terrible about being confronted with niquab-wearing women in their home patch. For westerners it’s a new phenomenon, and for those of us brought up on western feminism it’s often a heart-sinking experience. I think there’s going to be a lot of uneasiness about this issue for a long time to come.
Mr T,
The defendant is a Muslim.
.
Robert,
I would have to agree with you here. My first instinct was that she should not be forced to reveal her face if that was her choice, but having spent (a while ago now) months in a court room I would expect that her evidence may have been discounted by a jury purely on that basis. The community need for justice to be done must, I feel, over-ride personal choice in this matter.
Tough.
Or, to put my point more fully, I find the niqab, and the attitudes that it embodies, distasteful. But I can’t for the life of me figure out why I should deny others the right to wear it on the basis of that distaste alone.
However, it’s not just a matter of personal distaste here.
billie @1
As far as I know the Niqab is a Muslim institution and has nothing to do with orthodox Judaism so how can Orthodox Jews make any valid comment on it?
Thats on the same level as this:
I have atheist friends who say circumcision is bad cos the young infant might agree to go along with it in the beginning but they have no choice to stop being circumcised.
I have Christian friends who say scarification is bad cos the young male might agree to go along with it at first but they can’t get that smooth skin back afterward.
Utter nonsense.
Seriously there is enough bad blood between Muslims and Jews as it is without adding to it.
All this talk about video linkups is at best to miss the point, I think. If you asked her, the witness might very well answer that she isn’t wearing the niqab because she feels uncomfortable without it but that she is wearing the niqab because God has commanded that she wear it.
A video link up neither protects her modesty (strange men can still see her) nor solves the fundamental problem that she would still be doing something God has commanded her not to.
To focus on her personal feelings of uncomfort is to deny the reality of her beliefs.
Maybe a better analogy isn’t forcing Robert to give testimony naked but to force a priest to divulge evidence given in a confessional – a secular court forcing a beliver to breach their religious beliefs.
As I understand it, under Sharia law women called as witnesses must present unveiled.
Which if true, sort of undermines any objection to the Perth ruling.
Presumably the woman in question disagrees with that interpretation of Sharia law.
Robert – I predicted that this would be your response. That’s to say, a cheap and shallow response.
I’ve not said anything about denial of ‘rights’ [though I think the concept of rights is much more problematic than is often acknowledged, in spite of my being a great admirer of Geoffrey Robertson]. I’m against banning the niquab, but the issue goes way deeper than banning/not banning.
As a teacher of English to migrants I deal with Moslem women on a regular basis – and I’ve not yet met one I didn’t like. Some of them wear head-scarves, some don’t. I haven’t yet had to face a woman coming into my class wearing a niquab. I would feel very confronted, and I wouldn’t appreciate it if, on seeking advice and support from my supervisor, I was told ‘Tough. Go in there and teach.’
I thought it was that she didn’t want to be identified by people in the court who may take action against her family because she testified. Or that may have been one of the reasons she offered. If so the judge obviously didn’t think it a credible threat.
“All this talk about video linkups is at best to miss the point, I think. If you asked her, the witness might very well answer that she isn’t wearing the niqab because she feels uncomfortable without it but that she is wearing the niqab because God has commanded that she wear it. ”
In this case, no, Tasneem “made it clear that her decision to conceal her face was not a compulsory obligation of her faith which only required taht she wear a hijab covering her hair” (West Australian, 5 August)
For what it’s worth, some of my students are Muslim women, some of whom wear headscarves and some don’t. None have worn the niqab.
However, I’m just imagining the reaction from my department head if I wandered in to his office and said “Look, I’ve got a student who wears a niqab to class, and I find it a bit difficult to deal with.” If his response was anything other than “get over it” I’d be very, very surprised.
Did your Jewish friends talk about the wigs they don so only their husbands can see their hair? You see if you are against the niquab on feminist grounds, as your orthodox Jewish friends seem to be, decrying the lack of agency, concerned as your Orthodox Jewish friends seem to be, then any covering, even western approved covering such as the pretty scarfs or the wig donned on religious grounds is still a patriarchal intervention designed to subjugate and control the sexuality of woman, given that the hair becomes the fetish by which the man proves ownership of the woman. As I tell my beautiful Orthodox Jewish friend, who I love to bits, who I happily buy pretty headscarfs for in Sydney when she asks me to, and happily take to Canberra for her when she and I catch up, – what I say is – check your own backyard baby – when she talks about the sexism of the niquab. Matter of degrees IMO. If you are going to talk about oppression and feminism that is, from the scarf to the wig to the niquab, it’s just degrees of sexism and patriarchal control.
As for the matter of seeing one’s face in court and in the public court of opinion for that matter, it brings to mind a memory from childhood. Lindy Chamberlain, deadpan face, monotone voice. And all the injustice that came from that. I don’t get why you have to see the face, given the spuriousness of determining truth or falsehood by seeing it.
Although, I concede Robert, that it may well prejudice the jury and that is a compelling and valid point.
@Russell – Interesting. That weakens her argument, I would think. Especially in a criminal trial where it is the defence asking.
I recall a New Scientist article that reported that people were better at picking lies over the phone than we were face to face. This may be because visual clues often confuse the message.
Perhaps we should take the opposite approach and insist that Juries only consider the spoken word?
Haven’t read the aticle, think all this stuff about bullying muslim women to wear western dress in court is bunkum, because we dont dictate to anyone else, what to wear, so why these?
And don’t give me a load of crap about them hiding bombs under their burqas.
The upholding of justice is a cause worth dying for.
Paul – you can’t wear sunglasses, visor helmets, Reagan masks or full-length giant panda costumes in court. There may not be specific provisions in law for this – it’s common sense and the judge will decide who gets to wear what in cases where it’s disputed. To refuse to accept a judge’s ruling on appropriate dress in court is to be in contempt of court, no matter who you are.
Personally, I agree with the judge, but when you think about it, as long as the judges and barristers in our Australian courts continue to tog up like cross-dressing Quakers themselves, it’s a little ridiculous to get worked up over a woman wearing a burqua in the witness box.
That’s ok FBD, just so long as its not degenerating into some sort of weird ritual akin to a McCarthyite witchhunt,
for the purpose of humiliating “others”.
There are a lot of weird ideas proliferating “out there” usually traceable back to Samuel Huntingdon and co, thathave the horses spooked at the moment.I would things to deteriorate to the level we see in old film clips of the third reich, where dissenters are humiliated by the likes of Roland Friesler, in show trials.
Yeah, Iknow, Godwinned.
Necessary but not sufficient to dismiss my point without thought.
Casey @19 you don’t want to hear my friends on the subject of wigs, it’s basically unprintable. My friends had the opportunity to get tertiary training so they can work and chose whether to be observant or not.
However there are girls being educated to the end of year 9 and married off at 18 who won’t have a choice about cutting their hair off on their wedding day. They are not being educated sufficiently to be able to work or be able to leave the community if they want. They are trapped and its no more acceptable than a niqab.
“However there are girls being educated to the end of year 9 and married off at 18″
That sounds very unusual for Jewish communities, not so much the 18 bit but the end-of-year-nine bit, as valuing education is deeply ingrained in Judaism.
Where are these people?
I think FBD’s comment about muslim women presenting unveiled in a muslim court, is a winning point, provided his assumption can be verified.
Is this not an attempt by the defence to manipulate the Australian legal system into crucifixion/intimidation of the woman who is already doing something rather brave in the public interest?
The defendant is hiding behind the scruples of the witness which he is well aware of. He might also be a proponent of these OTT displays of purity/piety. (Don’t know enough about him.) But this does indicate that the issue of shame will be used against women when it can be exploited for advantage.
Billie, it’s true that there are a lot of odd sects within Judaism, same as Xtianity and Islam.
Take a look at some of the more separatist, misanthropic cults abroad in New York and Israel and see how this spills over into the expressed paranioa of the Zionist lobby and oppression of Palestinians.
Traditionally the accused has the right to confront his accusers in person (and presumably “face to face” is a part of that right, I’d guess; but maybe it gets tortuous in actual case law), but does the accused also have the right to confront each witness (viz., participants in the trial, but not, strictly speaking, “accusers”) in person in the same manner? Or does that not count? What’s the normative court procedure? Surely there are enough lawyers here to spell that part out.
I should think that the question turns on affording proper rights to the accused more than anything else.
When we’re talking about religious/moral scruples, the difference between unveiling before the authority figures of one’s co-religionists and strange authorities from a different tradition is rather marked.
I’m in favour of letting all witnesses testify by video myself. Half of what goes on in the witness box is pure intimidation and badgering by rhetorically skilled barristers, and jurors have a much higher belief in their own truth-spotting abilities than is borne out by controlled studies of the general human population.
The emotional distance provided by video testimony would wind back some of the grandstanding theatrics of the courtroom, and I also suspect that in general jurors would actually do better judging people’s truthfulness in closeup video than from across the room in the court.
33, Am tempted to say, “when in Rome”..”.
But, as you and others have said the cultural factors make for an atypical situation, as against a bike helmet, say.
Looking at the issue as a factor contributing to a more isolationist Europe, one sees the danger of reflex responses to civil dissent anddicours and the scapegoating of a minority member, in the eyes of a minority community.
But you have got to mourn the clumsy and insentive way population movement has been imposed, both on minorities and locals, usually working class people expected to carry anunfair burden as to social and economic costs relative to the middle classes who benefit from flows of cheap labor.
“Is this not an attempt by the defence to manipulate the Australian legal system into crucifixion/intimidation of the woman who is already doing something rather brave in the public interest?”
It’s an attempt by the defence to do what they are professionally obligated to do, i.e. minimise the chances of a conviction for their client, within the Law.
“When we’re talking about religious/moral scruples, the difference between unveiling before the authority figures of one’s co-religionists and strange authorities from a different tradition is rather marked.”
That’s totally NOT what veiling is about. It arose within Islamic communities, and has precisely zero to do with “different traditions”. It’s about the difference between the position of a woman relative to her husband, versus relative to all other men.
FBD, you last comment as much verifies Tigtog’s point as rebutts it.
Nope.
If within Islamic communities it is unacceptable for a woman’s face to be seen by other men than her husband, but they are prepared to overturn this tradition in special cases such as witness testimony, then the same special case can (be argued to) apply in a secular court in godless Western Australia.
“strange authorities from a different tradition…”
??? If the witness is an Australian, then the authorities are not the least bit strange, they are Australian authorities. And the “tradition” in question is by definition not at all “different” — it’s Australian legal tradition. Now perhaps that tradition is flexible enough to make allowances, I wouldn’t know. Or perhaps the witness is a foreigner, visiting Australia from some other country?
The different tradition to which I refer is the sharia court system versus our system.
There apparently does exist, under sharia law, an expectation that women can appear before the properly religiously constituted sharia bench without being veiled – as a special exception to the tradition of veiling except before her spouse and blood-relative men. To assume that therefore being unveiled in a non-sharia court would be a parallel situation is a gross misunderstanding of how the exception under sharia law works – just because they are both courtrooms doesn’t mean that they are similar for her in any other way.
The religion/culture thing is so complex when it comes to the niqab.
I recently met two young Saudi brothers. They were devout, but they didn’t like the niqab much. Then there was this discussion.
Bro 1: Anyway, it’s nothing to do with Islam. It’s cultural.
Bro 2: Nah, it’s religious.
Bro 1: Nah, it’s cultural.
Pause.
Bros together: Is it both? Ah, who knows.
Japperz, its a cultural thing.
Can you imagine the resentment if the courts arbitrarily said the aussie sheilas would lost their rights unless, say, they wore short skirts and no knickers?
Well for old agrarian cultures, going unveiled may well be the equivalent; an utter humiliation. In our own culture women had covered pretty much from head to toe, only as little as a century ago.
To clarify – I’m sympathetic to the logic of your argument on one hand, FDB – but I also see the logic of a counter-argument that the two situations are not directly parallel at all.
j_p_z – your argument implies that Australian culture is a homogeneous and monolithic thing where we should all be comfortable being judged by strangers just because our passports look the same. If one has grown up in a non-mainstream culture then the mainstream is strange. How could it be otherwise?
I’m not saying that there should be any automatic cultural exemption for any particular cultural minority. I do however think that failing to consider, acknowledge and at least weigh up the options of making a few concessions for those from non-mainstream traditions is simple arrogance.
I’d argue they are “directly parallel” though. Parallels don’t coincide – it’s right there in the definition.
If you meant exactly equivalent, then that’s true, but only trivially so.
Not if you are being put through a difficult time in an alien culture, FBD.
What do you think could be done to make things a bit easier on these sorts of people, to ensure that like us they dont feel intimidated and in an alien place, in a place we have confidence in and regard as a plus for civilisation?
Cultural or religious?
If you look at the huge variation in coverings between, say, Afghanistan, Malaysia, Egypt, Iran and Xinjiang, yes you’d have to say cultural.
Oh crap, I didn’t mean to suggest that being culturally alienated is itself trivial. Far from it.
I just meant that in this particular case, pointing out that trials under Sharia law and WA law aren’t exactly the same for an unveiled Muslim woman to go through doesn’t weaken my argument much.
tigtog — I think you’re being rather prejudicial, and not fairly considering some of the more interesting aspects of the question.
“your argument implies that Australian culture is a homogeneous and monolithic thing where we should all be comfortable being judged by strangers just because our passports look the same.”
Australian culture is not the same thing as Australian civic duty. If there isn’t a higher standard of conformity for the latter, you can look forward to a rather “interesting” future for yourselves.
I have no opinion about what the court should or shouldn’t permit, my argument was with your a priori assertion that an Australian citizen (if she’s a citizen) should somehow have a lesser or different civic obligation by virtue of her background. Now the court may very well make the allowance for its own reasons, and perhaps rightly so; it’s your assumption that I think deserves unpacking.
In a question like this, I think the court needs to establish a correct order of priority of competing claims. Now an Australian jurist (and there are many here) can answer us authoritatively, but if I had to guess I’d say that very high on that list would be the vigilant protection of the rights of the accused, including the right to presumption of innocence. From comment #29: “The defendant is hiding behind the scruples of the witness which he is well aware of.” If that sort of thing isn’t a prejudicial assumption, then I’m the cast and crew of Starlight Express. So you see it’s not a slam-dunk that it’s a matter of indifference to the accused whether the witness is granted special privileges in her testimony or not; arguably, by testifying in the habitual normative manner, without privilege, the witness would be seen to be performing her due civic service to the standards of justice of the court.
This carefulness is one of the distinguishing hallmarks of English law, and I’d be a little surprised to hear that it is trumped by the momentary comfort level of a witness; but who knows, maybe it is.
Here’s a little thought experiment. Let’s say there are two Australian citizens of South Asian birth in a court case. On the witness stand is a guy who self-identifies as a Brahmin; the defense counsel is a Dalit. Let’s say the Brahmin, invoking his rich multicultural Indian heritage as the vibrant Other, demands to be addressed by the ‘untouchable’ in highly deferential and subservient tones. He’ll feel uncomfortable otherwise, owing to his richly vibrant multicultural sensitivities.
What should the Dalit do? Honor his civic commitment to his fellow Australian citizens and examine the witness as an equal before the law? Or defer to the mores of the Old Country, a country which after all he left? And if he chooses the latter, couldn’t that be seen as extremely prejudicial to his client’s case?
Tigtog, I think that j_p_z’s point is that that Australian law is a homogenous and monolithic thing and, if that is his argument, he is right. It is not an issue of whether someone is comfortable about being judged by strangers. That is an essential part of the legal system that they are. It is the principle upon which we select juries who sit as judges of fact in trials.
Are you suggesting that it should be otherwise and if so what alternative system do you propose? Juries composed only of their family and friends?
Australian law is not entirely homogenous and monolithic:
http://www.aic.gov.au/criminal_justice_system/courts/specialist/indigenous.aspx
GregM, why is your last paragraph devoted to asking questions which I answered in the paragraphs that you didn’t bother to quote?
Perhaps not entirely monolithic fb. But those courts only have relevance for sentencing where a person has pleaded guilty. And then only for matters within a Magistrates Court jurisdiction.
If the matter is serious enough for a jury trial or the person has pleaded Not Guilty then the 700 year old monolith which underpins what we call The Rule of Law is what applies.
Yeah, okay, fair enough, GregM. I just want to identify that there are instances of cultural considerations being taken into account in our legal system.
@j_p_z, I agree that culture and civic duty are not one and the same, and that civic duty is indeed rather more on the monolithic side as pointed out by GregM.
My point is that there’s an awful lot of conventions bound around what are actually the fundamental obligations of civic duties, and the conventions versus the fundamentals should not be confused.
So working out ways in which the fundamentals can still be fulfilled without falling back on the usual conventions, when the usual conventions are highly confrontational to the individual for whatever reason, seems like a sensible thing to do.
As I said, my opinion is that the whole face to face thing is highly over-rated and prone to exploitation by badgering barristers, and the sooner that everybody goes to video testimony the better.
Are the legally blind officially regarded as unfit for jury duty? Because if they’re not, then the not-being-able-to-see-the-face argument doesn’t hold up, I would have thought.
By the way, RobertM, your link doesn’t seem to be working.
Robert M @7, would I be prepared to allow all witnesses to testify via video link? I don’t see why not, really, though having everyone together is usually convenient. But video link makes sense where the physical presence of men, or an alleged rapist, upsets the witness and thus affects their testimony. It’s also probably cheaper if you want someone in gaol, hospital or some distant place to testify.
I do understand that the woman might be still uncomfortable with *knowing* that men are looking at her minus niqab, but my expectation is that this will make the situation somewhat easier for her because she can’t *see* them looking.
But IANAL and not involved in the judicial system; there might be disadvantages I’m ignorant of.
Another point: while it’s worth debating what to do in such cases, there are ~300,000 Muslims in Australia, and most Muslim women do not wear a niqab or burqa. We are probably only talking about a few hundred people, though I imagine that’s not how it appears on talkback radio.
Legal Eagle has written on this from a lawyer’s perspective:
http://skepticlawyer.com.au/2007/03/31/unveiling-the-truth-the-whole-truth-and-nothing-but-the-truth-2/
Testifying to a court, in court, with the face exposed, is part of preserving the traditional ‘right of confrontation’ (protected in the US Constitution, but also an important part of both common law and civil/Roman law systems).
Many lawyers also have grave doubts about the utility of specially constituted courts for indigenous people, or laws of evidence bent out of shape on the basis of gender, although that said, honest attempts to address concerns are made from time to time. I discuss some of these here:
http://skepticlawyer.com.au/2009/03/09/stereotypes-and-victims-of-crime/
I’ve been moderated, I think because of including two links. Please let me out
Because nothing you wrote answered those questions.
What you wrote is:
Isn’t that what reports on the judge’s ruling on the defence application said she did? As part of the exercise of her role as a judge under our common law system she is bound to do that, but then, having considered the submissions supporting the defence application, she made a ruling according to law.
There is an ignorance of our legal process that leads you to imply that her decision was made without allowing the defence to put its submission and giving it due consideration which leads you to impugn our legal system, or the judge discharging her responsibility under it, as being “simply arrogant”.
I wasn’t referring to the judge when I mentioned simple arrogance. I was referring to some of the commentary around this case which suggested that the woman’s request should have been dismissed out of hand.
Following your logic PC because blind people are allowed to be on juries it should be the right of everyone to appear as witmesses in court with a bag over their head, irrespective of their reasons.
Powerful logic that. As far as I am aware deaf people are not excluded from being on juries either. Are you saying therefore that this means that it should be the right of all witnesses, whatever the reason, to give their evidence in mime.
That is where your reasoning takes us.
I’ve fixed the link to the Ekman study, which I’d thoroughly recommend.
SL, thanks for the comments.
How do you react to the point I was making in the post, though – that the empirical evidence that eyeballing somebody actually helps to judge witness credibility is actually pretty weak?
I think there are two effectively orthogonal questions at play: does allowing the witness to appear in niqab affect the accuracy of the attempt to discover a just course of action[1]; and is it in accord with the traditional practice and motivations of the legal system?
The latter question, frankly, I regard as an insult. The assumption that I should be willing to allow tradition to prevent a just outcome is offensive. I would much prefer that Australia had a government department concerned with the discovery and administration of justice, but since we do not I think the various “Justice Departments” should be encouraged to move in that direction.
[1] I admit purely for the sake of the argument that there may be parties involved who wish a just outcome.
PC, a bit of research has revealed that both blind and deaf people are excluded from jury service in Australia.
Probably because of a perception of their capacity to contribute effectively in a jury trial and to assess the evidence presented to them. Including, I suspect, making judgements about the demeanour of witnesses, which it is part of the role of the jury to assess in weighing the evidence.
Can you point out any such commentary on this thread?
Rubbish. If that’s your idea of following logic, then the problem does not lie with me.
You seem to be assuming that I was taking up a position on the niqab in court, for a start, which I wasn’t and don’t; on that question I am a dedicated fence-sitter and ditherer. It was a genuine question.
My logic was that if the criterion is seeing or not-seeing the witness’s face, then that works or should work in both directions when making the rules about these things.
Your further research has revealed that that is indeed the case, so thanks for the information. Whoever made this rule seems to think that my logic is just fine.
Radio National ran a segment on this matter one afternoon last week. My recollection is incomplete—something to do with the eccentricities of the fellow Adelaideans with whom I was sharing a road—but the piece ran interviews with both witness and defendant.
By my recollection, the defendant, who apparently copped something of a beating over the matter, insisted that he was entirely comfortable with the witness giving evidence in the niqab, and that it was the lawyers who were making it an issue.
The witness—a very articulate woman—stated that she had worn the niqab in public for many years, and that she felt uncomfortable at the thought of being exposed to non-related males. Further, she affirmed that she accepted the judge’s decision, and that she was prepared to give evidence without the niqab if that was required of her.
And let’s not overlook the judge’s comment that the decision only pertained to this particular set of circumstances, and that it should not in any way be interpreted as a comment on the appropriateness of the niqab in other contexts.
There’s probably a link to a transcript somewhere…
If anything a court is far more likely insist that people cover up more bare flesh rather than the reverse. Part of the logic behind this is that it is unreasonable to force someone to do something that they consider to be less respectable/more provocative.
It would be desirable that the court’s decision be appealed in this case. The appeal should specifically consider the evidence related to the importance of being able to see someones face.
My understanding is that courts will allow voice recordings as evidence – so where is the logic.
Having just got back to the computer, I’d just like to respond to Robert’s remarks way back at 18.
I’ve already given thought to how I’d respond if a woman came to my class in a niqab, and I must say my feelings shifted over time from ‘no I couldn’t teach her’ to ‘yeah, okay – wanting to learn English while wearing a tent is better than not wanting to learn English at all’. However, I’m absolutely dead certain that no teacher or staffer where I work would have a ‘get over it’ attitude. It would definitely be a ‘big issue’, and I suspect some students in my class be more troubled by such a presence in their midst than I would.
You seem to be looking at the issue from a narrow legalistic perspective, within a broad framework of largely unanalysed religious/cultural ‘tolerance’ – a sort of knee-jerk liberalism. Of course. it’s the framework I’m interested in. Just how far are we prepared to go in accepting certain cultural practices as valid?
Of course there’s also the ‘professional’ perspective. ‘Hey, look, she’s paid her fees, she can turn up in a niqab or a bunny costume, just go and teach her.’
Anyway, let me declare a prejudice in this case. I like faces. Men’s faces, women’s faces, old faces, kids’ faces, smiling faces, dreamy faces, worried faces, confused faces – aren’t they just the best part of the human anatomy by far?
Since when is affording another human being courtesy and respect [not to mention equality] considered ‘knee-jerk liberalism”?
furious balancing – I think one of the issues is that some people find hiding your face when talking to them disrespectful. For example, wearing sunglasses indoors so no one can see your eyes would be considered to some to be rude.
What I meant by ‘knee-jerk liberalism’ in this case was responding to a genuine uneasiness about passing someone in the street who’s wearing a niqab with ‘tough’ or get over it’, meaning ‘stop feeling uneasy right this minute and start feeling courteous and respectful, like a proper liberal gentleman’.
I can’t believe anyone is seriously considering this as acceptable. The niqab is not worn by Muslim women when they give evidence in court situations so why would it be so here? This case is about diverting attention from the details of the alleged fraud by the Muslim scchool.
Put this in your bad slogans pipe and smoke it.
Budgie smugglers/bikini not burqa
Blind and deaf people are automatically excused from jury service in Australia, and the right (and it is a right, not subject to empirical proofs) to confrontation is accorded to the accused, not to jurors and not (with exceptions) to the judge.
This is Criminal Procedure 101. If there are to be derogations from it, than there need to be profound philosophical and jurisprudential reasons for those derogations, not empirical ones. Both the accused and the plaintiff have the right to see each other.
It is also highly likely that a fraud matter will be dealt with civilly, not criminally. Therefore the exposed face is for the judge’s benefit, not for the jury. Judges are very good at spotting liars when they can see their faces, if that’s what worries you.
And in other news, there is a serious argument that Sharia isn’t law, or is at best ‘primitive law’, for similar reasons to widespread lawyerly concerns with international law. In the case of the latter, enforcement is lacking. In Sharia, secondary rules of change are lacking (ie, the ability to amend or exclude existing legislative enactments).
It won’t be. It is an interlocutory ruling. If the defendant is acquitted of the offence the Crown cannot appeal. If he is convicted then he cannot rely upon the judge’s decision as part of an appeal as it was a ruling he sought.
Your understanding is incorrect.
Voice recordings (e.g. wiretaps) can only be admitted into evidence if there is someone to attest to them and face cross-examination over the recordings they seek to have admitted.
Where a witness is available to give evidence, as in this case, there is no way that they would be allowed to give a voice recording, as a sunbstitute for giving evidence in open court, and therefore avoid cross-examination.
You should take the time to inform yourself on what the rules of evidence are rather than making things up and then creating straw men about the logic of the legal system on the basis of a fiction of your own making.
How’s this for a philosophical reason – the whole point of criminal court proceedings is to provide a reliable, fair, and confidence-inspiring mechanism by which the guilt of defendants, to beyond a reasonable doubt, can be determined.
I get that it’s worked pretty well for a long time, which is a good reason not to fiddle just for the sake of it. However, if there was very strong evidence that some part of the whole ritual was counterproductive, I don’t see any reason why it shouldn’t be changed.
The Ekman study I linked to in the post (link is now fixed) showed that contrary to your assertion, judges were no better than anyone else – and no better than random chance – at picking liars in a controlled study. Now, it may be that that study doesn’t generalize to courtroom situations. But what if additional research started to form a strong consensus that it did?
Your position, on the face of it, seems very conservative, in the Burkean sense. If we’re going to defend ritual for the sake of it, we might still be stuck with the property qualification for jury service.
The issues here are multiple but to attempt to cut through: the niqab and the burqa are widely acknowledged by numerous Muslim clerics and Koranic scholars to be cultural accretions rather than direct requirements of Islam for women. Wearing such items is also widely seen to be an expression of Wahhabism which is seen as a sect within Islam but not of a religious nature. It is seen as a form of extreme patriarchalism. There are, therefore, no specifically religious reasons for the wearing of such coverings in court or anywhere else for that matter.
Wearing such coverings is under challenge from the state in countries like Syria, for example, where such garments are correctly interpreted as expressions of support for a political movement, not a religious statement.
All that being the case there remains the matter of whether or not the defendant is entitled to see the face of accusers or witnesses against him or her. It is so self evident that one would expect to be able to see the face of such persons, it takes so little imagination to grasp how offensive it is to long standing cultural preferences for open communication in modern democracy, that those who argue from liberal rights theory for the right of someone to give evidence in court with their face covered are absurdly monstering liberal philosophy.
Somewhere in the introduction to “Rhizome Theory” Deleuze and Guattari note that the only way they survived their undergraduate philsophy lectures, which they say were delivered by “the bureaucrats of pure reason”, was to take a central concept of a philosopher and and drive it to the limits of its internal logic until absurdity had been reached. Thus, their intention as they put it, and my recall is inexact but the sentiment is close, their intention was to ‘fuck Marx up the arse with his own ideas in order to implant a child of monstrous illogicality within the logic of his arguments’. Or words to that effect.
Those who argue for the right of individuals to appear in Australian courts with their faces covered while giving evidence against another on the grounds that their individual right to freedom of personal expression through their attire trumps the right of the person charged to know the face of his or her accuser are doing no less a service to liberal philosophy of individual rights than Deleuze and Guattari did for Marx.
Very interesting comments. I think skepticlawyer has a pretty good grasp of the legal issues, and i particularly like the contribution of akn at 78. I was going to write about niqab-wearing as a new ‘innovation’ but wasn’t sure of my facts. Akn seems to have more knowledge on that, and his view on liberalism chimes with mine. Anyway, recent development or not, it seems to me that the patriarchal ban on seeing women’s faces, imposed by certain subcultures, is a bit like those sub-cultures that try to ban music, for religio-cultural reasons. We may not have to follow the ban ourselves, but their ban impinges on us whenever our culture and theirs are brought together. Should we ‘respect’ their ban? Should we forego all music when in their company? Should we just ‘get over it’?
Stewart/Luigi @79, I might refrain from playing music in the home or presence of a person who disapproved of it in order to be polite, but that’s a personal interaction. A courtroom is an arrangement with very different aims and customs.
The underlying question here is: what will best promote the cause of justice, given the interaction of at least two different cultures in the courtroom? This issue with a single niqab is merely the tip of a vast iceberg. Surely there have been similar discussions about how other minority cultures (eg aboriginal people, the working class) tend to suffer under the rigidities of our court system?
skeptic Lawyer@75: You say:
Two things worry me here. Firstly, is this statement backed by good research or merely related to the outcome of the court case – “I can prove that I can tell when people are lying because I find them guilty.” Can you quote studies?
The second concern is that body language is not universal. For example, many cultures think it is rude to look people in the eye, particularly if the look is a strong look. Our culture describes this behaviour as shifty. Equally, there are cultures, such as some middle east cultures where it is customary to look people more strongly than we are comfortable with. Our culture sees this behaviour as aggressive even when it is not meant.
We also relate how comfortable people look to whether they are telling the truth. A man wearing a well cut suit that he wears all the time will look a lot more convincing than someone who rarely wears suits wearing an ill fitting suit. Perhaps the women reading this post could tell us how comfortable they would feel in a court that forces them to appear topless or otherwise more provocative than they are comfortable with in these circumstances?
GregM@76: You say, with respect to sound recordings:
As a dumb engineer I can see no real difference between this and someone providing evidence out of sight if their identity, in this case, has been confirmed by a female court office.
I am with Robert here – the issue is what should happen rather than what is required by current legal technicalities.
There’s a lot of new and nuanced stuff here that merits commentary so maybe I’ll come back later, but for now I’ll limit myself to this…
I fully support the right of defendants to confront their accusers in person but I can’t imagine that it’s because judges or juries might thus semi-magically gain slightly better bullshit detectors thereby.
All the ‘studies’ in the world don’t mean a bloody thing if some honest man is denied by some smug judge who truly believes he damn well knows his ‘judgecraft’. Think of it, it’s a ludicrous premise, and leads to the most appalling technocratic consequences. Oh wait a minute, you schmucks are leftists, I always forget…
I think the genius of the practice is a lot more homely: it keeps things on the human scale where they belong, and also it’s just a damn ol’ hedge against things becoming much worse. Given the mountains of human skulls generated by ‘experts,’ isn’t that rather enough?
Chookie, I have no problems with what you’re saying, my various comments have, i think, been part of a side conversation about the wider issues of the niqab. Robert said earlier that it was just ‘tough’ if people felt uncomfortable about the niqab. This was nothing to do with courtrooms. I think that’s an interesting response and worth probing further.
Not being a lawyer or courtroom loiterer, I don’t feel qualified to comment on the legal issues or courtroom etiquette [most of which I found pretty alienating when i did have to enter that world].
Well, it’s your self-assessment as a dumb engineer. I won’t comment on that save to say that in my experience engineers generally have as much of value to contribute to discussions on legal matters as lawyers have to discussions on bridge design.
But even a dumb engineer should be able to grasp the difference between giving evidence by voice recordings in which the person giving the evidence cannot be questioned and a person giving evidence directly to the court, even if out of sight from the court, say by video link, upon which they can be questioned.
Robert Merkel’s contribution is much more intriguing. He argues:
The logic of this is that by allowing juries to see a witness’s face while they are giving evidence the jury is being exposed to an extraneous influence on their fact finding (erroneously believing that the witness’s facial expressions while giving evidence may give them useful information as to the witness’s credibility) which may bias them from a true evaluation of the evidence placed before them.
To avoid this hazard, it follows, all witnesses should have their faces covered while they give evidence.
It seems much of the later commentary has got behind SL’s plea for the rights of plaintiff and accused. Is it then up to politicians and others in authority to perhaps meet with muslim community leaders, to get some sort of mutual understanding as to to what’s involved.
If witnesses understood that the process was not adversarial in the sense that it was aimed at their subjection rather than an understanding of a given event, things would not be so difficult for all concerned?
Why should they, any more than they might meet with any other factional interest to explain to them the legal system under which this country operates, as if they couldn’t inform themselves of that anyway?
Do you suggest that politicians and others in authority should meet with leaders of the Chilean migrant community to get some sort of mutual understanding about how our adversarial common law system operates, on the basis that they come from a country with an inquisitorial civil law system?
One woman in one case has wanted to wear a face covering while giving evidence. It is most unlikely that she is the only Muslim woman ever to appear before an Australian court to give evidence and yet it doesn’t seem that there has been any great controversy over those other women conforming with the norms of our justice system when doing so. It hardly seems likely to be a pressing issue to the muslim community at large, most of the women in which do not wear niqabs.
Perhaps, though, the politicians and others in authority should meet with muslim community leaders to get some sort of mutual understanding as to why a woman’s evidence is valued equally with a man’s under our legal system whereas under sharia it would have only half the value.
Obviously Greg, that is the sort of qualitative issue you raise at these meetings.
Common sense.
It’s also the nature of the communication that’s at issue- politicians have no worries running off to big buck interests to consult, as labor has just found out to its own cost.
Why is it inappropriate to investigate a possibility, or we just discount seemingly peripheral things without even a consideration. How would the first guy to the first nugget at Kalgoorlie in 1890′s have gone, if he hadn’t investigated something?
Where will it end though Paul?
Is it then up to politicians and others in authority to perhaps meet with Catholic community leaders, to get some sort of mutual understanding as to why, by law, our Head of State must not be a Catholic, but could be a Buddhist, a Mormon or a Muslim?
Or is it up to politicians and others in authority to meet with Chinese community leaders to get some sort of mutual understanding as to why we have an independent judiciary and trial by jury and why we don’t inflict the death penalty for economic or indeed any other forms of crime?
Leaders of our Mormon community, at least of the old-fashioned kind, might want to get some sort of mutual understanding as to why we don’t allow polygamy, so should the politicians and others in authority meet with them to kick that ball around?
In the Japanese community there might be some leaders who have identified a pressing need for some mutual understanding on why they can’t get a decent whalemeat steak in any restaurants here so should the politicians and others in authority book them in for a session of mutual view-sharing on that topic?
Conversely there may be some leaders of the Hindu community whom our politicians and others in authority should be meeting with for a bout of mutual understanding on why the cow is not worshipped and beef steak is on the menu.
In the observant Jewish community there may be some who need a bit of mutual understanding on why we will be playing the AFL Grand Final on a Saturday thus effectively excluding them from attendance at it, so should the leaders of that community be on the phone to the politicians and others in authority to see why it can’t be shifted to another day in the week?
The possibilities for mutual understanding sessions with community leaders of sectional and sectarian interests are endless.
Common sense indeed.
All relativity, proportion and context, balance or how would we be having this conversation on a late winter morning.
People largely come and go by and of their merits. You see something that needs fixing, like a faulty electric plug; you fix it. Only lack of imagination can’t translate that reasoning capacity into identification of other aspects of the real world, say something like nuclear weapons. We know, they canbe a problem!
I’m not saying it has ere been different, we identify problems in a rational way as we move forward and try to solve or cope with the more obvious, because that’s what we are.