Tag Archives: 6th Amendment

Science and the 6th Amendment

As reported by the Ottawa Citizen, a trial judge, applying a Canadian Supreme Court ruling, ordered a devout Muslim woman to testify in court without her niqab.[1]  She is testifying against men she accuses of sexual abuse while she was a minor.  Her religion dictates that she wears her niqab when facing men who are not relatives.  Below is a graphic from the BBC illustrating two types of Muslim face coverings.[2]


 niqab Conservative choice

The niqab is a veil for the face that leaves the area around the eyes clear. However, it may be worn with a separate eye veil. It is worn with an accompanying headscarf.

The burka is the most concealing of all Islamic veils. It covers the entire face and body, leaving just a mesh screen to see through.

There have been attempts to ban both the niqab and burka in some European countries.



This trial clearly pits the right to confront witnesses and the right to a fair trial against the free exercise of religion.  In Canada, the Supreme Court determined that this issue must be addressed on a case-by-case basis:


“A clear rule that would always, or one that would never, permit a witness to wear the niqab while testifying cannot be sustained.  Always permitting a witness to wear the niqab would offer no protection for the accused’s fair trial interest and the state’s interest in maintaining public confidence in the administration of justice.  However, never permitting a witness to testify wearing a niqab would not comport with the fundamental premise underlying the Charter that rights should be limited only to the extent that the limits are shown to be justifiable.  The need to accommodate and balance sincerely held religious beliefs against other interests is deeply entrenched in Canadian law.”[3]


Essentially, the Canadian Supreme Court set out a four-prong test for lower court judges to use when determining if the niqab interferes with the trial.  As summarized by the CBC, the prongs are:

  • Does she have a sincere belief in her religion?
  • Does wearing a veil create a serious risk to trial fairness?
  • Is there any other way to accommodate her?
  • If no, does what the court called the “salutary” effects of ordering her to remove her niqab outweigh the “deleterious” effects of doing that?[4]

The trial judge applied the test in the remanded case and found in favor of the rights of the accused.  Normally, in Canada or the U.S. this would be the end of the issue and either N.S. would testify without her niqab or the trial would not move forward.  But her lawyer is trying another tactic and using recent scientific evidence calling into question the ability of individuals to discern anything reliably from facial expressions.  This argument is similar to the argument regarding eyewitness testimony and line-ups.[5]  Simply put, humans are not good at remembering facts and faces, we are influenced by context, and we are poor judges of truth despite what we see on “The Mentalist”.[6]

Does this evidence tip the balance?  Would jurors be better judges of truth without seeing facial expressions or posture during testimony?  Are these scientific findings enough to say that due process if fulfilled even if a witness wears a niqab or burka?  And how does this balance with the right to confront accusers? In 1985, the U.S. Supreme Court said:

This Court’s Confrontation Clause cases fall into two broad categories: cases involving the admission of out-of-court statements and cases involving restrictions imposed by law or by the trial court on the scope of cross-examination…

The second category of cases is exemplified by Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974), in which, although some cross-examination of a prosecution witness was allowed, the trial court did not permit defense counsel to “expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” As the Court stated in Davis, supra, at 315, 94 S.Ct., at 1110, “confrontation means more than being allowed to confront the witness physically.” Consequently, in Davis, as in other cases involving trial court restrictions on the scope of cross-examination, the Court has recognized that Confrontation Clause questions will arise because such restrictions may “effectively . . . emasculate the right of cross-examination itself.” Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 750, 19 L.Ed.2d 956 (1968).[7]

Yet, this opinion does not address N.S.’s new argument.  What if the fallibility or emasculation lies with the jurors?  If jurors gain nothing from observing the witness or, perhaps worse make erroneous or unreliable conclusions based upon observing the witness, where does that leave the right to confront?  If evidence continues to mount—creating a nearly irrefutable Brandeis brief—free exercise would likely trump the right to confront.  But in the end, this same analysis would call into question the rationale for including that latter right in the Bill of Rights.

We have seen the Court reinterpret or alter the interpretation of these amendments over the course of our history, but we have not yet dealt with the increase of knowledge undermining the very rationale for an amendment.  In such a situation, what should the Court do?  Stick to avowed legal approaches and continue to interpret this clause fairly literally?  Or can they use founders intent and suggest that the amendment does not do what the founders intended—indeed it may undermine that intent—so we move away from a strict reading of the clause?  Its an interesting conundrum, especially for justices like Scalia who aver originalism.


[1] We wrote about the oral argument in this case back in 2011 (https://clcablog.wordpress.com/2011/12/15/battle-of-the-amendments-sixth-versus-first/).  Here we discussed if the Supreme Court, when it faces this issues because its bound to come up in the U.S., would use the Sherbert or the Employment Division v. Smith test.

[7] Delaware v. Fensterer (474 US 15).


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Filed under Attorneys, Trials, and Punishments, Discrimination, Religion

Tort reform and the right to trial

In Missouri a political battle continues over tort reform.  With a GOP supermajority, the Republicans are examining options after the Missouri Supreme Court declared a tort reform law unconstitutional.  The state law placed a cap on non-economic damages in medical malpractice cases.  The court ruled, in a split ruling, that the right to trial by jury, as codified in the MO constitution, prevents the legislative reform effort.  As reported by the AP[1], the MO court using founders intent noted that there was a right to seek such damages when the state constitution was adopted, therefore, the legislature can’t restrict the fact-finding role of the jury.

The Missouri Supreme Court’s reasoning is applicable to the 6th Amendment right to trial by jury.  The same argument was used by the Court to strike federal mandatory sentencing guidelines and similar guidelines in the state of Washington.  As Justice Scalia wrote in Blakely v. Washington (542 US 296 2004)[2]:

“… [T]he State tries to distinguish Apprendi and Ring by pointing out that the enumerated grounds for departure in its regime are illustrative rather than exhaustive. This distinction is immaterial. Whether the judge’s authority to impose an enhanced sentence depends on finding a specified fact (as in Apprendi ), one of several specified facts (as in Ring), or any aggravating fact (as here), it remains the case that the jury’s verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact.

Because the State’s sentencing procedure did not comply with the Sixth Amendment, petitioner’s sentence is invalid.”

The next term the Court applied the same logic to the federal sentencing guidelines (543 US 220 2005).

For the issue of tort reform, it is more important to determine if the Missouri Supreme Court’s reasoning also applies to the right trial by jury in civil cases in the Missouri Constitution and by extension the the 7th Amendment.[3]  It stands to reason that facts determined by the judge (ground for departure) or by the legislature (an arbitrary cap on damages regardless of the facts of the case) are equivalent.  In neither case does “the jury’s verdict alone” determine the final outcome.  Therefore, whether the case is criminal or civil is irrelevant to the legal analysis.

However, it is also possible that the Court would distinguish tort reform from mandatory sentencing guidelines as the latter are dealing with the infringement of liberty (6th Amendment) rather than the ability to provide additional compensatory damages (i.e. pain and suffering) (7th Amendment).  Is this a legitimate distinction?  The founders did place the two ‘right to trials’ in two different amendments suggesting that they are not necessarily equivalent.  The doctrine of non-superfluous clauses could rear its head once again[4]; if the framers meant the right to trial for criminal cases and civil cases to be equivalent, then they would not have placed them in separate amendments. If the current Court is unwilling to make this distinction, then the hoopla and extensive lobbying efforts on both sides of this issue may be a large waste of time, effort, and money.  The 7th Amendment may make tort reform a moot issue for politicians and interest groups.

[3] The 7th Amendment issue is somewhat hypothetical.  The Court has not incorporated this amendment, and it would have to do so for the tort reform movement to be mooted in all states.  The argument still holds for federal tort reform.

[4] see Hurtado v. CA (page 70 of CLCA: Rights, Liberties, and Justice 8th edition).


Filed under Attorneys, Trials, and Punishments, The Legislature