Tag Archives: eyewitness

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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It is not unusual to see an innovative statute or policy spread throughout the states.  A current obvious example would be gay marriage.  Bans on gay marriage made the ballots in waves beginning late in the 20th Century.  Hawaii and Alaska were early adopters in 1998, then Nevada in 2002.  Eleven states in 2004 adopted a ban.  Connecticut and Texas followed in 2005, and Alabama, Colorado, and Tennessee in 2006.  Florida joined this group in 2008 and North Carolina did so in the most recent election.  Now we see some diffusion of the acceptance of the right to marry as well.  Right to work laws are another example.  Political scientists often document this type of policy diffusion.

Does diffusion also work among courts?  Most certainly yes, and we have an important example that greatly affects the definition of due process and, perhaps, sharpens the right to confront witnesses.  In 2011, New Jersey recognized decades of work by psychologists and criminologists that show that eyewitness testimony can be terribly unreliable.  In State v. Henderson 208 NJ 208 (2011), we see a story of police intervention.  A witness views a photo line-up and cannot identify the perpetrator once it was narrowed down to two.  The police officers suggested that one of the two was the perpetrator then the witness identified the defendant.  The justices of the New Jersey Supreme Court first heard the case and appointed a Special Master to “evaluate scientific and other evidence about eyewitness identifications.” (page 2)  After receiving an extensive report, the justices decided that:

“We are convinced from the scientific evidence in the record that memory is malleable, and that an array of variables can affect and dilute memory and lead to misidentifications. Those factors include system variables like lineup procedures, which are within the control of the criminal justice system, and estimator variables like lighting conditions or the presence of a weapon, over which the legal system has no control. To its credit, the Attorney General’s Office incorporated scientific research on system variables into the guidelines it issued in 2001 to improve eyewitness identification procedures…

In the end, we conclude that the current standard for assessing eyewitness identification evidence does not fully meet its goals. It does not offer an adequate measure for reliability or sufficiently deter inappropriate police conduct. It also overstates the jury’s inherent ability to evaluate evidence offered by eyewitnesses who honestly believe their testimony is accurate.”

The justices of the New Jersey court determined that a defendant may raise the issue of “suggestiveness” at the pre-trial stage.  “Suggestiveness” indicates that the testimony was subject to suggestion by investigators and is unreliable.   Additionally, the judicial system must create new language for jury charges when dealing with eyewitness testimony.  The justices were very direct in their charge to the Criminal Practice Committee and the Committee on Model Criminal Jury Chargers.  The court instructed the two committees “to consider all of the system[1] and estimator[2] variables in section VI for which we have found scientific support that is generally accepted by experts…”  The justices did not require the committees to adopt the language from the Innocence Project, they did ask the committees to examine their recommendations in the course of their work.

At the end of November 2012, the Oregon Supreme Court explicitly followed New Jersey’s lead and went a bit farther.  In Oregon, the state now bears the burden of proving that the eyewitness testimony should be admissible, rather than having the defendant have to prove that the testimony is questionable.  Even if the state meets the burden, the defendant can still argue that the evidence is prejudicial and the judge can exclude it.

The Oregon case was really two similar cases placed together; at issue in both was the use of eyewitness testimony from witnesses that “had been subject to an unduly suggestive police procedure…” (page 1 of opinion).  In State v. Lawson, a husband and wife were shot while camping in a national forest.  The wife, Mrs. Hilde, spoke to medical personnel at the scene and to the police several times while receiving treatments and after being discharged from the hospital.  In each interview, Mrs. Hilde could not identify the perpetrator until the final interview.  This interview took place more than a month after the incident. In the fourth interview, “one of the detectives and Mrs. Hilde reviewed her answer to the leading questions that she had been asked at the first interview.” (page 4)  Afterwards, she picked out the squatter as the shooter.  In the intervening years before trial, the police showed Mrs. Hilde the defendant’s picture several more times.

In the second case, State v. James, a local grocery store was robbed and a store employee provided descriptions of the suspects and details of the theft as soon as peace officers arrived.  Later that day, the officer saw two men that fit the descriptions, found them in possession of alcohol similar to that taken, and asked the suspects to accompany him to the grocery store.  The suspects agreed and they were identified as the perpetrators.  (page 9)

Will this new trend diffuse to other states?  It’s quite likely.  The American Judges Association’s journal, Court Review, just came out.  The American Judges Association boasts 3,000 current and former judges as its members.  It is a special issue focusing solely on eyewitness evidence, and includes articles from some of the top researchers in the field.

While the Innocence Project and others have researched, published, and debated the efficacy of eyewitness testimony, judges and/or legislators must accept these results for change to occur.  Now the results of the scientific work are being codified in state law.  The New Jersey Supreme Court’s opinion in Henderson reads, in many places, like a research article.  Here we see the clear use of a great deal of scientific evidence to enhance the underlying purpose of the criminal justice system—the state must prove guilt beyond a reasonable doubt.  The use of faulty or unreliable testimony to incarcerate individuals works against that very purpose.  If the testimony is, by definition, doubtful, then more caution should be shown before accepting the statements of eyewitnesses.



[1] System variables are those within a state’s control. The system variables are: blind administration; pre-identification instructions; lineup construction; avoiding feedback and recording confidence; multiple viewings; simultaneous v. sequential lineups; composites; show-ups.

[2] Estimator variables are those beyond the state’s control.  The estimator variables are: stress; weapon focus; duration; distance and lighting; witness characteristics; characteristics of perpetrator; memory decay; race-bias; private actors; speed of identification.

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