Interesting Dilemma

[Petra]

http://www.stuff.co.nz/stuff/0,2106,3077045a10,00.html


To summarise, two women immigrants from Afghanistan are to be witnesses in an insurance fraud trial. They've been in NZ for 10 years now. They are refusing to remove their full burkhas while in court. One said that she would rather kill herself than remove the total head covering as God is a higher authority than the courts.

The judge now must decide how to handle this situation so that a fair trial with credible witnesses may be conducted regarding the insurance fraud. The insurance fraud trial is being postponed in the meantime.

How do you think this situation should be handled?

[dave_a]

http://www.stuff.co.nz/stuff/0,2106,3077045a10,00.html

To summarise, two women immigrants from Afghanistan are to be witnesses in an insurance fraud trial. They've been in NZ for 10 years now. They are refusing to remove their full burkhas while in court. One said that she would rather kill herself than remove the total head covering as God is a higher authority than the courts.

The judge now must decide how to handle this situation so that a fair trial with credible witnesses may be conducted regarding the insurance fraud. The insurance fraud trial is being postponed in the meantime.

How do you think this situation should be handled?

I don't understand why it is necessary for them to remove their burkhas.

You say they are witnesses, is their cooperation voluntary or forced in this case? Could they just say I don't feel like testifying so see ya later?

I respect that they feel their god's laws are higher than the courts, but legally that isn't the case.

So, if they refuse to remove the covering and it is absolutely necessary that they do so to testify in a manner that satisfies the law and they are legally compelled to testify then I believe the judge is going to have to force them to remove their covering. Hopefully all reasonable measures to do it for the shortest possible time and in the least offensive manner for the women will be employed.

[Nil Desperandum]

I see an odd beauty in the veiling of a woman's face.

I think that it is somewhat ridiculous the implications of unveiling their faces would have, but I respect their beliefs nonetheless.

I was never under the impression that, in order to testify in a court, your facial expressions were necessary to determine your credibility.

I personally respect their right to wear burkhas, and I think that it would be a mistake for their burkas to be forced off.

The ACT Party's justice spokesman, Stephen Franks, said it was a fundamental principle that a court must be able to observe demeanour and body language in assessing the credibility of witnesses.

"No one should have to face masked witnesses - whether they're Muslim, Ku Klux Klan or traffic cops in sunglasses," he said in a statement.

"Eye contact has to be more than shadowy eyeballs peering from a shroud."
I think that's a bunch of crap.

Chris

[wade-w]

The compromise offered in the linked article seems to be a reasonable one to me. After all, the argument the defense attorney is making is that he needs to be able to see their facial expressions in order to effctively cross examine them. There is no need for the defendant to see their faces directly for him to perform this task.

[Petra]

http://xtramsn.co.nz/news/0,,3762-3806432,00.html

What about this aspect:

Defence lawyer Colin Amery says it is against the rules of open justice to prevent his client from facing his accusers in court

And she also refused to remove it for her drivers licence photo.

I wonder how she managed to get a passport?!

[livius drusus]

I didn't think facing your accusers was to be take quite so literally. If the lawyers and the judge can see her, it seems to me the defendant would still be getting a fair trial. :shrug:

[wade-w]

He is being allowed to face his accusers in open court. He has apparently interacted with them in the past while they where wearing the Burkha. How is this any different?

The women have offered to remove their veils if they are screened from the view of all but the judge and the lawyers. I see this as a perfectly acceptable compromise.

I find the social conditioning that requires women to wear the Burkha outside the home at all times to be deplorable, Lunachick. However, in this case the damage has already been done, and it is a greater injustice to force these women to disregard their cultural customs when there is no compelling need that I can see.

[Petra]

She doesn't wish to remove it for anyone.


Honestly, I hold no judgements on this one. I just saw it on the news and recognised it as a dilemma.

Not just in abiding by the law of the land with regard to identity stuff - passports, driver's licences, appearing in court, etc; but also in the oppression of these women right here in NZ. But then I also think that by making them remove their veils and be seen disempowers them as much as making them wear one.

It can also be construed as NZ being a "one religion" nation; by default, a Christian nation I guess.

And what if she were among the accused and not just a witness?


Hmmm...it's nearly 5.30am - hope I'm making sense...

[Cool Hand]

The ACT Party's justice spokesman, Stephen Franks, said it was a fundamental principle that a court must be able to observe demeanour and body language in assessing the credibility of witnesses.

"No one should have to face masked witnesses - whether they're Muslim, Ku Klux Klan or traffic cops in sunglasses," he said in a statement.

"Eye contact has to be more than shadowy eyeballs peering from a shroud."
I think that's a bunch of crap.

Chris

Chris,

Judging from the inflammatory arguments quoted by the spokesman above, I can understand why you might feel that way. In legal systems founded on English Common Law, however, generally an accused in a criminal proceeding has a right to confront any witnesses against him. I don't know what New Zealand law says about it specifically, but in the U.S. it is called the "confrontation clause" and is found in the Sixth Amendment to the Constitution. Cases interpreting it usually determine that it means essentially what the guy above is saying. It is a right belonging to the accused. I suspect it means the accused himself, not just his attorney, has a right to see and hear in person the witnesses testifying against him.

Cool Hand

[livius drusus]

She doesn't wish to remove it, but her husband said they would be willing to remove it for the judge and lawyers as long as the defendant couldn't see her face.

[Petra]

The women have offered to remove their veils if they are screened from the view of all but the judge and the lawyers.

Ok, I missed that bit. I'll read it later. I'm going to go crash now. :yup:

[wade-w]

Chris,

Judging from the inflammatory arguments quoted by the spokesman above, I can understand why you might feel that way. In legal systems founded on English Common Law, however, generally an accused in a criminal proceeding has a right to confront any witnesses against him. I don't know what New Zealand law says about it specifically, but in the U.S. it is called the "confrontation clause" and is found in the Sixth Amendment to the Constitution. Cases interpreting it usually determine that it means essentially what the guy above is saying. It is a right belonging to the accused. I suspect it means the accused himself, not just his attorney, has a right to see and hear in person the witnesses testifying against him.

Cool Hand

Yes, I understand this. As I understand it, all of the accused's previous interactions with these witnesses involved then wearing the Burkha. Not in an attempt to hide their indentity, as would be the case with a KKK member, but as a normal part of their attire. So how would appearing in court attired in the same way violate the defendant's right to face thier accuser? What would he gain by seeing their faces (other than to humiliate them), when he's never seen them before anyway?

The other argument offered by the defense is that they need to be able to see the facial expressions of the witnesses in order to effectively examine their testimony. It seems to me that the compromise offered by the woman's husband is a reasonable counter to this position.

[dave_a]

Y'know this isn't the first incident of a woman having a conflict with the state over the issue of headcoverings.

Perhaps in cases of immigrations a line could be added to the forms indicating that religious customs such as head coverings, while respected as a part of the culture, must be removed for state functions such as testifying in court, driver's licenses and any other state function requiring exposure of the face.

This way folks would be on notice as to the rules BEFORE making a decision to move to a nation.

[Cool Hand]

Yes, I understand this. As I understand it, all of the accused's previous interactions with these witnesses involved then wearing the Burkha. Not in an attempt to hide their indentity, as would be the case with a KKK member, but as a normal part of their attire. So how would appearing in court attired in the same way violate the defendant's right to face thier accuser? What would he gain by seeing their faces (other than to humiliate them), when he's never seen them before anyway?

The other argument offered by the defense is that they need to be able to see the facial expressions of the witnesses in order to effectively examine their testimony. It seems to me that the compromise offered by the woman's husband is a reasonable counter to this position.

The confrontation clause is about more than just knowing the identity of your accuser. It entails seeing and hearing her too, for the reason you have expressed. Allowing the accused's lawyer to see and evaluate the demeanor of the witness, which includes all manner of non-verbal communications, including facial expressions, is probably necessary but not sufficient. As I said, the right belongs to the accused himself, at least in the U.S. The lawyer can't stand in his stead because the accused has a right to participate in his defense. Denying him the opportunity to evaluate the witness himself would effectively deny him the right of confrontation because he wouldn't have access to the non-verbal cues involved in the witness' demeanor.

This is a matter in which the witness' religious views run smack into the defendant's fundamental legal rights in a criminal trial. I agree that it's an interesting dilemma. I don't know how to resolve it.

Cool Hand

[Dingfod]

I know I'd hate to be sent to prison on the testimony of someone that won't show their shifty eyes and facial expressions that might reveal their lies.

Related sidebar: Are blind people allowed to be jurors?

[Clutch Munny]

Whether there is some legally specified right to see someone's face -- for the jury or anyone else -- it is certainly true that we extract a great deal of information about someone's credibility from their facial expressions. Also misinformation in some occasions -- it may be that a witness is nervous but the juror reads it as smugness.

If it were generally permitted for witnesses to be hooded or shielded from the jury during testimony, I expect that quite a few trials would have different outcomes.

[godfry n. glad]

Yes, I understand this. As I understand it, all of the accused's previous interactions with these witnesses involved then wearing the Burkha. Not in an attempt to hide their indentity, as would be the case with a KKK member, but as a normal part of their attire. So how would appearing in court attired in the same way violate the defendant's right to face thier accuser? What would he gain by seeing their faces (other than to humiliate them), when he's never seen them before anyway?

The other argument offered by the defense is that they need to be able to see the facial expressions of the witnesses in order to effectively examine their testimony. It seems to me that the compromise offered by the woman's husband is a reasonable counter to this position.

The confrontation clause is about more than just knowing the identity of your accuser. It entails seeing and hearing her too, for the reason you have expressed. Allowing the accused's lawyer to see and evaluate the demeanor of the witness, which includes all manner of non-verbal communications, including facial expressions, is probably necessary but not sufficient. As I said, the right belongs to the accused himself, at least in the U.S. The lawyer can't stand in his stead because the accused has a right to participate in his defense. Denying him the opportunity to evaluate the witness himself would effectively deny him the right of confrontation because he wouldn't have access to the non-verbal cues involved in the witness' demeanor.

This is a matter in which the witness' religious views run smack into the defendant's fundamental legal rights in a criminal trial. I agree that it's an interesting dilemma. I don't know how to resolve it.

Cool Hand

So, what you seem to be saying is that "Justice is not blind after all". Is that right?

If the accused were blind, would they have the right to touch the face ("see") the accuser?

godfry

[livius drusus]

So, what you seem to be saying is that "Justice is not blind after all". Is that right?

Well, justice isn't female either, or even a person, so I don't think the metaphor can extend quite that far. To me the expression "justice is blind" simply means that the law should make every effort to give everyone a fair shake; the right to confront your accuser face to face is one of those efforts.

If the accused were blind, would they have the right to touch the face ("see") the accuser?

I don't think this analogy is really apt because a defendant's physical disability isn't the same as a witness's religious beliefs.

I dunno... I definitely find this case very hard to call. Even witnesses in great physical danger from the assused have to face them in court first and then go through the hell of witness relocation. The potential humiliation a witness may undergo during testimony - and it seems to me there are many, many circumstances under which being a witness would be a dismally humiliating experience - isn't enough to override the right to face an accuser under any other circumstances, afaik, so why this one?

The compromise the husband suggested which sounds just fine to me when it comes to a defense attorney's ability to defend his client the best he can doesn't resolve that core problem.

[Adora]

Well, there's a difference between religious paraphenalia, and sheer impracticality. Someone investigating a witness or the accused in court would need to see their face to decide properly whether or not they were telling the truth, considering most of human communication is done via visual signals.

Which was mentioned in the article.

"It's our tradition, our religion, our culture. We have to respect and try to protect it."
Reality check: You're not living in that culture anymore. You are now living in a mixed-culture, which has its own legal jurisdiction over you. This is part of becoming an immigrant. You don't just bring your legal system with you and decide to set it up in your country of choice.

[seebs]

I'm inclined to say their religion probably ought to win. Personal freedoms are a big deal.

[Goliath]

Well, as I'm sure as everyone here can guess, I haven't one iota of respect for the beliefs of the muslim women mentioned in the OP. If they don't want to remove their veils, then they don't want to testify. Period.

[Ymir's blood]

My first thought it that the whole reason for this is to prevent the women from testifying.

The right to confront one's accuser, as I understand it, is designed to prevent someone from being tried and convicted without knowing what the evidence against them was. The Spanish Inquisition* never told the defendant what they were charged with or by whom were they accused. In order to defend yourself (no lawyers allowed!) you first had to try and guess what the charges were. That isn't the case here, of course.

The ACT Party's justice spokesman, Stephen Franks, said it was a fundamental principle that a court must be able to observe demeanour and body language in assessing the credibility of witnesses.

How does being able to see someone allow you to determine their credibility? If they are nervous, does it automatically mean 'liar?'

"Eye contact has to be more than shadowy eyeballs peering from a shroud."
Eye contact is irrelevant. There are plenty of people who can look someone in the eyes while lying. Doubtless, the two women would be so shamed by being 'exposed' that they wouldn't be able to look anyone in the eyes for a long time.

IMO, it's a legal trick to get the client off the hook.

*Bet you never expected them to feature in this thread. :wink:

[Cool Hand]

The Spanish Inquisition*

*Bet you never expected them to feature in this thread. :wink:

NO ONE expects the SPANISH INQUISITION!!!

(OK, someone had to say it.)



BTW, see above discussion about the Sixth Amendment confrontation clause. It's not a legal trick. In the U.S., it's a fundamental constitutional right of every accused. It is meant to protect all of us from being framed in court. Despite rhetoric we often hear about alleged criminals getting off on "technicalities," none of us who value basic individual liberties should scoff at the principles upon which they are founded. This is one of those instances.

In other countries whose legal systems are founded on English Common Law, the same legal principle applies in criminal trials. I believe New Zealand is one of them.

Cool Hand

[Petra]

Update: http://www.stuff.co.nz/stuff/0,2106,3078948a10,00.html

Winston Peters is an ass, btw. He's the kiwi equivalent of Australia's Pauline Hansen. But I do agree with him in this case, to a degree. A very small degree, admittedly.

Also, a Muslim MP in NZ has said that the veil is cultural, not religious.

Now, don't get me wrong - I think if the women are to be forced to remove their veils, then they will suffer what will be to them a huge indignity and bring them shame and perceived dishonor with their God. I would not like to do this to them.

However, it does raise some issues regarding the differences between religious and cultural practices - is the burkha really religious, or merely cultural? How far will we allow religious paraphernalia and beliefs to interfere with a trial in a secular court of law?

What about driver's licences, passport photos, school uniforms, work uniforms, safety issues, etc?

I'm all for diversity and I love it when people of different ethnic and national backgrounds add to the colour of our nation through their dress, their ceremonies and celebrations, music, food, etc, etc. But I also expect immigrants to integrate and adapt to our society here, and to abide by the laws and cultural protocols of their adopted land, which in this case is NZ. If they do not wish to do that, or do not think that they can, then why do they come here in the first place?


A veiled Muslim woman who told a judge she would rather kill herself than reveal her face while giving evidence in an upcoming fraud case might be better off living in a Muslim country, New Zealand First leader Winston Peters says.

At a hearing in Auckland yesterday to determine whether two Muslim women will have to remove their burqas in the upcoming case, Fouzya Salim said that to do so would be embarrassing and against her religion.

"I don't want to show my face in public... I would rather kill myself than uncover my face and sit here.

"If I uncover my face then I would be in trouble with God."

Mrs Salim is to be a crown witness in the case against Abdul Razamjoo who is charged with insurance fraud and making a false statement to police.

Razamjoo's sister Feraiba Razamjoo, another crown witness, also wants to remain veiled while giving her evidence.

In a statement today, Mr Peters said it was a simple case about whether there was one set of rules for all, or whether they could be bent or broken to fit in with "newcomers".

"We have a system of open justice and that means the demeanour of witnesses in court cases can be seen by the judge, jury and counsel," Mr Peters said.

"Most New Zealanders would be disturbed that a person prefers suicide to complying with reasonable court rules was living in their midst.

"People who come here from countries with extreme religious views and customs should seriously think about resettling where practices of covering up faces are the norm."

Mrs Salim explained yesterday how her faith dictated that only close relatives and females were allowed to see her face.

When male visitors came to see her husband she would talk to them through the door.

If they came into the house she would stay in a separate room, never seeing them even to serve food or drink.

The mother of six said she had worn a burqa since she turned 15. In Afghanistan, where she grew up, the veil covered the entire face, including her eyes where there was a gauze strip.

When she moved to New Zealand nine years ago, Mrs Salim changed her burqa to one which showed the eyes but she would never venture out of her home without it, unless there was a "life and death" situation.

Responding to a question from Judge Lindsay Moore, Mrs Salim she knew that she might have to change the way she lived when she moved to New Zealand.

A decision about the veils is not expected until the end of December. Razamjoo's trial will start next year.

Labour MP Ashraf Choudhary, New Zealand's first Muslim MP, today said that face covering was a cultural rather than religious issue.

Muslim men and women had to dress modestly.

"For both men and women, clothing requirements are not meant to be a restriction but rather a way in which a society will function in a proper manner and environment," he said in a statement.

"Migrants and refugees, irrespective of their religious or cultural background, who have made New Zealand their home must integrate in the society to achieve their full potential.

"While New Zealand is a secular state and does not discriminate on race, religion or ethnicity and protects human rights of all religious and ethnic minorities, this is not a country for extremists or extremist views," he said.

Some conservative Muslims believed otherwise but most educated and learned people were of the opinion that face covering of women was not required, he said.

[Petra]

In other countries whose legal systems are founded on English Common Law, the same legal principle applies in criminal trials. I believe New Zealand is one of them.

Cool Hand

Yup. It is.

[Ymir's blood]

[QUOTE=Ymir's blood] BTW, see above discussion about the Sixth Amendment confrontation clause. It's not a legal trick. In the U.S., it's a fundamental constitutional right of every accused. It is meant to protect all of us from being framed in court. Despite rhetoric we often hear about alleged criminals getting off on "technicalities," none of us who value basic individual liberties should scoff at the principles upon which they are founded. This is one of those instances.
I read your post before typing up mine and I still stand behind what it says. The defendant is being allowed to confront his accusers as they are there in court, positively identified. Seeing their faces, IMO, is unimportant. Facial expressions are not an accurate indication of anything as they can be falsified and/or easily misinterpreted.

[beyelzu]

I am hesitant to place religious freedom over the rights of the accused. I think freedom from our government is an incredibly basic right. I think that the right to face your accuser should not be abridged so long as it is possible for the witness to testify in open court they should be compelled to. I dont like the idea of allowing people to be allowed to testify wearing what amounts to a mask. I dont like the precedent that it could set.

[Cool Hand]

[QUOTE=Ymir's blood] BTW, see above discussion about the Sixth Amendment confrontation clause. It's not a legal trick. In the U.S., it's a fundamental constitutional right of every accused. It is meant to protect all of us from being framed in court. Despite rhetoric we often hear about alleged criminals getting off on "technicalities," none of us who value basic individual liberties should scoff at the principles upon which they are founded. This is one of those instances.
I read your post before typing up mine and I still stand behind what it says. The defendant is being allowed to confront his accusers as they are there in court, positively identified. Seeing their faces, IMO, is unimportant. Facial expressions are not an accurate indication of anything as they can be falsified and/or easily misinterpreted.

That's cool. You're entitled to your opinion. I mean you no disrespect, but please consider that if you are not a lawyer or a constitutional scholar, then perhaps your opinion carries less weight on this particular issue than that of one who is. That's not supposed to be an insult to your intelligence or anyone else's. It's a statement about the sometimes complex nature of legal analysis and why it is usually best left to lawyers. It's technical. Similarly, my analysis of a technical engineering problem, for instance, isn't due the weight of an engineer's analysis either.

Weighty questions of constitutional law in particular are not simply matters which lend themselves to ready analysis and opinion making by the general lay public. Usually, they require a special knowledge of and familiarity with not only the text of the Constitution itself, but also the historical background and context of the protections sought to be ensured, and also an analysis of controlling and/or persuasive decisions interpreting those protections. They are best decided when placed in the hands of justices, judges, lawyers, and legal and constitutional scholars.

Again, I must limit my discussion strictly to law in the U.S., which is not controlling in NZ, and does not govern the outcome of this particular case. It is the law I am familiar with, however.

Here is the U.S. Supreme Court's most recent treatment of this particular subject, albeit in a different context from veils and safeguarding the religious views claimed by the witness. It arose from a challenge to the State of Maryland's statutory scheme for allowing child testimony in sexual abuse cases to be made by closed-circuit television, rather than in person in a courtroom. It is what I had in mind when I qualified my OP in this thread with the use of "generally." Keep in mind this case and its progeny are exceptions to the general rule and require that any abridgement of the right to a face-to-face confrontation at trial be "necessary to further an important public policy." This is from Maryland v. Craig, 497 U.S. 836 (1990).

1.The Confrontation Clause does not guarantee criminal defendants an absolute right to a face-to-face meeting with the witnesses against them at trial. The Clause's central purpose, to ensure the reliability of the evidence against a defendant by subjecting it to rigorous testing in an adversary proceeding before the trier of fact, is served by the combined effects of the elements of confrontation: physical presence, oath, cross-examination, and observation of demeanor by the trier of fact. Although face-to-face confrontation forms the core of the Clause's values, it is not an indispensable element of the confrontation right. If it were, the Clause would abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme, Ohio v. Roberts, 448 U.S. 56, 63. Accordingly, the Clause must be interpreted in a manner sensitive to its purpose and to the necessities of trial and the adversary process. See, e.g., Kirby v. United States, 174 U.S. 470. Nonetheless, the right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the testimony's reliability is otherwise assured. Coy, supra, at 1021. Pp.511.

2.Maryland's interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of its special procedure, provided that the State makes an adequate showing of necessity in an individual case. Pp.1218.

(a)While Maryland's procedure prevents the child from seeing the defendant, it preserves the other elements of confrontation and, thus, adequately ensures that the testimony is both reliable and subject to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person testimony. These assurances are far greater than those required for the admission of hearsay statements. Thus, the use of the one-way closed circuit television procedure, where it is necessary to further an important state interest, does not impinge upon the Confrontation Clause's truth-seeking or symbolic purposes. Pp.1213.

(emphasis in bolded added)

It is interesting to note that Justice Scalia, usually associated with the hard right of the Court, has been an outspoken defender of a strict adherence to the Sixth Amendment's principles, and has opposed efforts like this one in Craig to abrogate them. He authored a dissenting opinion expressing his analysis of and disagreement with the majority opinion, and was joined by three of the Court's liberal members at the time, Justices Brennan, Marshall, and Stevens.

Here is some of what Justice Scalia had to say about the confrontation clause. Note that it is a dissenting opinion, which means it is not controlling law, but it is a compelling analysis, and even more so considering that Scalia wrote it, and he was joined by three members of the liberal side of the then-constituted Court:

Justice Scalia, with whom Justice Brennan, Justice Marshall, and Justice Stevens join, dissenting.

Seldom has this Court failed so conspicuously to sustain a categorical guarantee of the Constitution against the tide of prevailing current opinion. The Sixth Amendment provides, with unmistakable clarity, that "[i]n all criminal prose cutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." The purpose of enshrining this protection in the Constitution was to assure that none of the many policy interests from time to time pursued by statutory law could overcome a defendant's right to face his or her accusers in court. The Court, however, says:

"We ... conclude today that a State's interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant's right to face his or her accusers in court. That a significant majority of States has enacted statutes to protect child witnesses from the trauma of giving testimony in child abuse cases attests to the widespread belief in the importance of such a public policy." Ante, at 13.

Because of this subordination of explicit constitutional text to currently favored public policy, the following scene can be played out in an American courtroom for the first time in two centuries: A father whose young daughter has been given over to the exclusive custody of his estranged wife, or a mother whose young son has been taken into custody by the State's child welfare department, is sentenced to prison for sexual abuse on the basis of testimony by a child the parent has not seen or spoken to for many months; and the guilty verdict is rendered without giving the parent so much as the opportunity to sit in the presence of the child, and to ask, personally or through counsel, "it is really not true, is it, that Iyour father (or mother) whom you see before youdid these terrible things?" Perhaps that is a procedure today's society desires; perhaps (though I doubt it) it is even a fair procedure; but it is assuredly not a procedure permitted by the Constitution.

Because the text of the Sixth Amendment is clear, and because the Constitution is meant to protect against, rather than conform to, current "widespread belief," I respectfully dissent.

�I According to the Court, "we cannot say that [face-to-face] confrontation [with witnesses appearing at trial] is an in dispensable element of the Sixth Amendment's guarantee of the right to confront one's accusers." Ante, at 10. That is rather like saying "we cannot say that being tried before a jury is an indispensable element of the Sixth Amendment's guarantee of the right to jury trial." The Court makes the impossible plausible by recharacterizing the Confrontation Clause, so that confrontation (redesignated "face-to-face confrontation") becomes only one of many "elements of confrontation." Ante, at 7. The reasoning is as follows: The Confrontation Clause guarantees not only what it explicitly provides for"face-to-face" confrontationbut also implied and collateral rights such as cross-examination, oath, and observation of demeanor (TRUE); the purpose of this en- tire cluster of rights is to ensure the reliability of evidence (TRUE); the Maryland procedure preserves the implied and collateral rights (TRUE), which adequately ensure the reliability of evidence (perhaps TRUE); therefore the Confrontation Clause is not violated by denying what it explicitly provides for"face-to-face" confrontation (unquestionably FALSE). This reasoning abstracts from the right to its purposes, and then eliminates the right. It is wrong be- cause the Confrontation Clause does not guarantee reliable evidence; it guarantees specific trial procedures that were thought to assure reliable evidence, undeniably among which was "face-to-face" confrontation. Whatever else it may mean in addition, the defendant's constitutional right "to be confronted with the witnesses against him" means, always and everywhere, at least what it explicitly says: the "`right to meet face to face all those who appear and give evidence at trial.'" Coy v. Iowa, 487 U.S. 1012, 1016 (1988), quoting California v. Green, 399 U.S. 149, 175 (1970) (Harlan, J. concurring).

The Court supports its antitextual conclusion by cobbling together scraps of dicta from various cases that have no bearing here. It will suffice to discuss one of them, since they are all of a kind: Quoting Ohio v. Roberts, 448 U.S. 56, 63 (1980), the Court says that "[i]n sum, our precedents es tablish that `the Confrontation Clause reflects a preference for face-to-face confrontation at trial,'" ante, at 10 (emphasis added by the Court). But Roberts, and all the other "precedents" the Court enlists to prove the implausible, dealt with the implications of the Confrontation Clause, and not its literal, unavoidable text. When Roberts said that the Clause merely "reflects a preference for face-to-face confrontation at trial," what it had in mind as the nonpreferred alternative was not (as the Court implies) the appearance of a witness at trial without confronting the defendant. That has been, until today, not merely "nonpreferred" but utterly unheard- of. What Roberts had in mind was the receipt of other-than- first-hand testimony from witnesses at trialthat is, witnesses' recounting of hearsay statements by absent parties who, since they did not appear at trial, did not have to endure face-to-face confrontation. Rejecting that, I agree, was merely giving effect to an evident constitutional preference; there are, after all, many exceptions to the Confrontation Clause's hearsay rule. But that the defendant should be confronted by the witnesses who appear at trial is not a preference "reflected" by the Confrontation Clause; it is a constitutional right unqualifiedly guaranteed.

The Court claims that its interpretation of the Confrontation Clause "is consistent with our cases holding that other Sixth Amendment rights must also be interpreted in the context of the necessities of trial and the adversary process." Ante, at 1011. I disagree. It is true enough that the "necessities of trial and the adversary process" limit the manner in which Sixth Amendment rights may be exercised, and limit the scope of Sixth Amendment guarantees to the extent that scope is textually indeterminate. Thus (to describe the cases the Court cites): The right to confront is not the right to confront in a manner that disrupts the trial. Illinois v. Allen, 397 U.S. 337 (1970). The right "to have compulsory process for obtaining witnesses" is not the right to call witnesses in a manner that violates fair and orderly procedures. Taylor v. United States, 484 U.S. 400 (1988). The scope of the right "to have the assistance of counsel" does not include consultation with counsel at all times during the trial. Perry v. Leeke, 488 U.S. 272 (1989). The scope of the right to cross-examine does not include access to the State's investigative files. Pennsylvania v. Ritchie, 480 U.S. 39 (1987). But we are not talking here about deny- ing expansive scope to a Sixth Amendment provision whose scope for the purpose at issue is textually unclear; "to confront" plainly means to encounter face-to-face, whatever else it may mean in addition. And we are not talking about the manner of arranging that face-to-face encounter, but about whether it shall occur at all. The "necessities of trial and the adversary process" are irrelevant here, since they cannot alter the constitutional text.


(my emphasis appears again in bold above)

I refer you to the numerous mentions of the "face-to-face encounter," which these justices note has been consistently held to be at the core of the right to confront one's accuser. Unfortunately, the majority took a big step to undermine that right in writing and embracing its decision in the case. They did subordinate a fundamental right of the accused to prevailing public sentiment that children shouldn't have to endure the trauma of testifying in court regarding allegations of sexual abuse. As a result, undoubtedly many persons were falsely accused and convicted of dubious charges of the sexual abuse of children, particularly those of the "ritualistic" and "satanic" nature, most of which charges have been thoroughly discredited in the intervening years since they were widespread in the early to mid-1980s and early 1990s.

The face-to-face encounter is not trivial, as some in this thread suggest. It is at the very core of the right to confront one's accusers. It is not to be dispensed with lightly.

I appreciate your input and contributions on this topic. I hope that you do not take offense at my suggestion that your analysis or opinion is not as weighty as those above, however.

Cool Hand

[godfry n. glad]

The face-to-face encounter is not trivial, as some in this thread suggest. It is at the very core of the right to confront one's accusers. It is not to be dispensed with lightly.

I appreciate your input and contributions on this topic. I hope that you do not take offense at my suggestion that your analysis or opinion is not as weighty as those above, however.

Cool Hand

I quite agree, yet I still don't think that Ymir's Blood's conceern has been addressed. The witness is present in the courtroom. "Face-to-face" is limited only by the presence of a veil. A thin piece of cloth which does not impede speech...the testimony. Why should the veil matter? Do toupees, wigs, spectacles, facial hair, etc., matter?

godfry

[Cool Hand]

I quite agree, yet I still don't think that Ymir's Blood's conceern has been addressed. The witness is present in the courtroom. "Face-to-face" is limited only by the presence of a veil. A thin piece of cloth which does not impede speech...the testimony. Why should the veil matter? Do toupees, wigs, spectacles, facial hair, etc., matter?

godfry

First, I'm glad to hear that we can agree on something.

Second, the concern with the veil isn't that it might impede the witness' speech. It has to do with the court's, the jury's (if it is a jury trial), and, more particularly, the accused's being able to evaluate the demeanor of the witness. Demeanor in this context includes non-verbal cues and overt communications, including facial expressions or the lack thereof.

Clutch Munny aptly addressed the rationale for being able to evaluate non-verbal cues in assessing demeanor earlier in this thread:


Whether there is some legally specified right to see someone's face -- for the jury or anyone else -- it is certainly true that we extract a great deal of information about someone's credibility from their facial expressions. Also misinformation in some occasions -- it may be that a witness is nervous but the juror reads it as smugness.

If it were generally permitted for witnesses to be hooded or shielded from the jury during testimony, I expect that quite a few trials would have different outcomes.

I think Vmir Blood's question has been addressed, although the responses, including others' besides CM's, might have gotten lost amid the discussion.

You ask whether toupees, wigs, spectacles, facial hair, etc., matter. To the extent that the identity of the witness is not an issue, and that they are not meant as a disguise, probably not. I doubt that any toupee or wig that doesn't cover much of the face could obscure the non-verbal cues on the face. Slash's hair and hat--the lead guitarist from Guns N Roses--probably does interfere, however. I suppose some unduly large glasses or beards might in some circumstances, but I've never heard of them being an issue.

The important issue here is whether an accused is denied the right to a face-to-face confrontation. If a toupee, wig, spectacles, or facial hair constitute a usual part of a witness' face, and that witness' facial expressions remain visible, then I suppose they would not interfere with an evaluation of the witness' demeanor. A veil is different, however, in that its very purpose and chief effect is to obscure the face. Thus, it does substantially eliminate or diminish the ability to assess the witness' overall demeanor.

Cool Hand

[Ymir's blood]

That's cool. You're entitled to your opinion. I mean you no disrespect, but please consider that if you are not a lawyer or a constitutional scholar, then perhaps your opinion carries less weight on this particular issue than that of one who is.
This isn't the 'Law' forum but the 'Philosophy' forum. I am talking about what is fair and just, not what is legal.

The face-to-face encounter is not trivial, as some in this thread suggest. It is at the very core of the right to confront one's accusers. It is not to be dispensed with lightly.
I disagree. Seeing the accuser's face is not important for the reasons I've given previously. That is to say that it does not provide a credible method for determining the veracity of the witness. That is the crux of my argument, that the need to see the face of the witness is nonexistent.


I appreciate your input and contributions on this topic. I hope that you do not take offense at my suggestion that your analysis or opinion is not as weighty as those above, however.
The opinion of the Supreme Court has the weight of law but is otherwise only as good as the facts used to support it. My opinion lacks any binding legal force but otherwise is as valid as that of a lawyer, judge or yes, Justice. That is to say that its validity is based solely on its merits, not on who said it. It is more likely that the lawyer or judge's knowlege of law will be greater than mine, but that should be reflected in the quality of the arguments they make.

However, as stated at the beginning of this post, my position is a philosophical stance and not based on a the law of any nation. It is important that the accused have a fair trial. It is also important to allow the two women to live their lives according to their beliefs. Allowing the women to remain veiled does not deny the defendant the right to confront those testifying against him and thus both principles are protected.

[Cool Hand]

This isn't the 'Law' forum but the 'Philosophy' forum. I am talking about what is fair and just, not what is legal.


OK, it is the philosophy forum, and anyone is free to discuss the fairness or justness of the issues.

This happens to be a legal issue, however. That's because it concerns not some abstract principle of fairness or justness, but rather a specific, well-established fundamental right of an accused in a criminal trial.

Because it's a legal right, divorcing an analysis of it from law is no different in principle from trying to determine if a batted baseball is fair or foul without having foul lines and without reference to the rules of baseball. "It's not fair because I say so" is not a firm or confident basis for making such a decision.


I disagree. Seeing the accuser's face is not important for the reasons I've given previously. That is to say that it does not provide a credible method for determining the veracity of the witness. That is the crux of my argument, that the need to see the face of the witness is nonexistent.


That's your opinion, and that's fine. It flies in the face of more than 350 years of Common Law, however, and stands in direct contravention of more than 350 years of courtroom practice. Are you that confident that you are right, and hundreds of thousands of judges, lawyers, and legal scholars are wrong?

Fairness in courts is not determined abstractly. A proper legal analysis of fundamental criminal procedural rights, which already incorporate principles of fairness and justness in the context of our cultural history, does not take place in a vacuum. It begins with examining the facts themselves, then refers to the relevant law, and concludes with applying the law to the facts in order to draw a legal conclusion. It may also require examination of the historical basis for and background of the applicable law in order to apply it correctly to the facts at hand. In this case, the legal right to confront one's accuser face-to-face dates to the 17th Century.


The opinion of the Supreme Court has the weight of law but is otherwise only as good as the facts used to support it. My opinion lacks any binding legal force but otherwise is as valid as that of a lawyer, judge or yes, Justice. That is to say that its validity is based solely on its merits, not on who said it. It is more likely that the lawyer or judge's knowlege of law will be greater than mine, but that should be reflected in the quality of the arguments they make.


What are the merits, without reference to a standard by which to weigh or consider the merits?

It's not just in the quality of the arguments made that legal expertise shows, but also in the depth of understanding of the issues involved. I submit that your depth of understanding of this issue is not likely to be as great as that of most practicing criminal lawyers. As a general rule, they have wrestled with these issues by studying case law, listening to lectures, and responding to questions posed by their professors using the Socratic method. They have demonstrated their expertise in these issues on a written bar examination. All but the greenest of them have gained valuable experience through years of actual practice in the courts, applying the same legal principles to a variety of sets of facts, and arguing the merits of those cases to judges.

Your lay analysis, even if you have spent hours thinking about it, is likely not to be grounded in the same depth of knowledge and experience as that of criminal trial lawyers or judges.

There is a reason we call certain persons experts in their fields of study or practice. That's because they bring something special to the table that nonexperts--laypersons in that field--do not. They bring special skill and/or experience that laypersons do not have. That's expertise, and it is synynomous with having opinions of greater weight in that field than those of nonexperts.


However, as stated at the beginning of this post, my position is a philosophical stance and not based on a the law of any nation. It is important that the accused have a fair trial. It is also important to allow the two women to live their lives according to their beliefs. Allowing the women to remain veiled does not deny the defendant the right to confront those testifying against him and thus both principles are protected.

OK, but again you have expressed an opinion about a right of an accused in a criminal trial. It's a legal right, not a philosophical one. Philosophy alone is not adequate to resolve the dilemma posed in the OP because philosophy does not provide you with fixed standards to apply to the facts of this case and reach a result.

Reference to law--legal standards--and legal principles is essential. Otherwise, by what standards do you measure or balance the right of the accused against the witness' right to observe her religious and cultural practices in a courtroom? The courtroom is a place governed by law, not philosophy.

Where do fundament rights get expressed if not in law? Where do they derive from and where do they develop and get refined?

Whose philosophy do you use to determine what's fair or just?

A personal philosophy, even one that is principled and just and well thought out, cannot adequately resolve this issue without reference to standards--laws--by which to balance the competing interests of the accused and the witness.

I submit that you are applying your own standards--essentially making up your own laws--in reaching your own conclusions about the fairness or justness of the result. That makes it your opinion, but it's a lay opinion. It's not a properly informed one without considering the relevant law. It's not entitled to the same weight as that of an expert in this field. Those persons are lawyers, judges, and legal scholars.

Cool Hand

[Ymir's blood]

This isn't the 'Law' forum but the 'Philosophy' forum. I am talking about what is fair and just, not what is legal.


OK, it is the philosophy forum, and anyone is free to discuss the fairness or justness of the issues.
Agreed
This happens to be a legal issue, however. That's because it concerns not some abstract principle of fairness or justness, but rather a specific, well-established fundamental right of an accused in a criminal trial.
This is a dilemma, an ethical problem. The OP asked, "How do you think this situation should be handled?" and that is what I have answered.
Because it's a legal right, divorcing an analysis of it from law is no different in principle from trying to determine if a batted baseball is fair or foul without having foul lines and without reference to the rules of baseball. "It's not fair because I say so" is not a firm or confident basis for making such a decision.
The question asked was not, "What is the correct legal course in this case?" Furthermore, to carry out your analogy, one would not consult the rules of football to determine the status of the ball. However nothing has been posted about the exact laws of New Zealand that apply to this case.

I disagree. Seeing the accuser's face is not important for the reasons I've given previously. That is to say that it does not provide a credible method for determining the veracity of the witness. That is the crux of my argument, that the need to see the face of the witness is nonexistent.


That's your opinion, and that's fine. It flies in the face of more than 350 years of Common Law, however, and stands in direct contravention of more than 350 years of courtroom practice. Are you that confident that you are right, and hundreds of thousands of judges, lawyers, and legal scholars are wrong?
You commit two logical fallacies in this statement. First, the age of an argument does not support the argument. (Argumentum ad antiquitatem (http://www.infidels.org/news/atheism/logic.html#antiquitatem) ) The second is asserting that the number of people who believe something is relevant to the truth of the belief. (Argumentum ad numerum (http://www.infidels.org/news/atheism/logic.html#numerum))



Fairness in courts is not determined abstractly. A proper legal analysis of fundamental criminal procedural rights, which already incorporate principles of fairness and justness in the context of our cultural history, does not take place in a vacuum. It begins with examining the facts themselves, then refers to the relevant law, and concludes with applying the law to the facts in order to draw a legal conclusion. It may also require examination of the historical basis for and background of the applicable law in order to apply it correctly to the facts at hand. In this case, the legal right to confront one's accuser face-to-face dates to the 17th Century.


The opinion of the Supreme Court has the weight of law but is otherwise only as good as the facts used to support it. My opinion lacks any binding legal force but otherwise is as valid as that of a lawyer, judge or yes, Justice. That is to say that its validity is based solely on its merits, not on who said it. It is more likely that the lawyer or judge's knowlege of law will be greater than mine, but that should be reflected in the quality of the arguments they make.


What are the merits, without reference to a standard by which to weigh or consider the merits?
The merits of an argument are whether or not its premises are true and its inferences are valid.
It's not just in the quality of the arguments made that legal expertise shows, but also in the depth of understanding of the issues involved. I submit that your depth of understanding of this issue is not likely to be as great as that of most practicing criminal lawyers. As a general rule, they have wrestled with these issues by studying case law, listening to lectures, and responding to questions posed by their professors using the Socratic method. They have demonstrated their expertise in these issues on a written bar examination. All but the greenest of them have gained valuable experience through years of actual practice in the courts, applying the same legal principles to a variety of sets of facts, and arguing the merits of those cases to judges.

Your lay analysis, even if you have spent hours thinking about it, is likely not to be grounded in the same depth of knowledge and experience as that of criminal trial lawyers or judges.

There is a reason we call certain persons experts in their fields of study or practice. That's because they bring something special to the table that nonexperts--laypersons in that field--do not. They bring special skill and/or experience that laypersons do not have. That's expertise, and it is synynomous with having opinions of greater weight in that field than those of nonexperts.
Once again. The worth of an idea is not determined by who proposes or defends it but on the strength of the argument for it. An expert has the advantage of experience and will hopefully craft better arguments. However what is important is the argument itself, not who crafted it. Yes, the lawyer is more likely to understand the law and all of its nuances but that does not make his argument any more valid than if it were written by the fabled typing monkeys. If his argument is sound, it is not because he is a lawyer but because it is well crafted. If it is unsound, his profession and training to dot mitigate that..

However, as stated at the beginning of this post, my position is a philosophical stance and not based on a the law of any nation. It is important that the accused have a fair trial. It is also important to allow the two women to live their lives according to their beliefs. Allowing the women to remain veiled does not deny the defendant the right to confront those testifying against him and thus both principles are protected.

OK, but again you have expressed an opinion about a right of an accused in a criminal trial. It's a legal right, not a philosophical one. Philosophy alone is not adequate to resolve the dilemma posed in the OP because philosophy does not provide you with fixed standards to apply to the facts of this case and reach a result.
Philosophy does not provide standards, this much is true. However it does provide values. Starting with that, logic can provide standards designed to protect those values.
Reference to law--legal standards--and legal principles is essential. Otherwise, by what standards do you measure or balance the right of the accused against the witness' right to observe her religious and cultural practices in a courtroom? The courtroom is a place governed by law, not philosophy.
We are not in a courtroom.
Where do fundament rights get expressed if not in law? Where do they derive from and where do they develop and get refined?

Whose philosophy do you use to determine what's fair or just?
My own, of course. That is what this topic is all about.
A personal philosophy, even one that is principled and just and well thought out, cannot adequately resolve this issue without reference to standards--laws--by which to balance the competing interests of the accused and the witness.
I disagree, except that I lack the authority (and desire) to enforce my decisions and thus can not resolve the case in question.
I submit that you are applying your own standards--essentially making up your own laws--in reaching your own conclusions about the fairness or justness of the result.
No argument there.That makes it your opinion, but it's a lay opinion. It's not a properly informed one without considering the relevant law. It's not entitled to the same weight as that of an expert in this field. Those persons are lawyers, judges, and legal scholars.This has been answered above.

[Cool Hand]

That's your opinion, and that's fine. It flies in the face of more than 350 years of Common Law, however, and stands in direct contravention of more than 350 years of courtroom practice. Are you that confident that you are right, and hundreds of thousands of judges, lawyers, and legal scholars are wrong?
You commit two logical fallacies in this statement. First, the age of an argument does not support the argument. (Argumentum ad antiquitatem (http://www.infidels.org/news/atheism/logic.html#antiquitatem) ) The second is asserting that the number of people who believe something is relevant to the truth of the belief. (Argumentum ad numerum (http://www.infidels.org/news/atheism/logic.html#numerum))



Don't you think your stance is a bit arrogant? You dismiss the analysis of thousands of legal scholars and practitioners who have wrestled with this issue and developed a sound body of protections for the accused in constitutional, statutory, and case law over the course of hundreds of years. You subordinate the expert opinions of lawyers and legal scholars to your own lay opinion, and then you declare yours to be superior.

Neither logical fallacy you allege is applicable here. They are not fallacies because my mention of the legal traditions and the number of scholars, judges, and practitioners embracing them have a sound basis as persuasive argument. They aren't meant as substitutes for sound argument. They are integral to the arguments themselves because this is a legal, not a philosophical, question.

First, as for legal tradition, there is a fundamental legal principle called stare decisis, "to stand by that which is decided." It is the principle that courts should follow and are bound to follow the precedent decisions of courts in their jurisdiction. They also sometimes look to precedent in other jurisdictions with laws similar to theirs, although such precedent is not binding upon them.

This further explanation is from The 'Lectric Law Library's Lexicon:

Stare Decisis (http://www.lectlaw.com/def2/s065.htm)


It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from. The doctrine of stare decisis is not always to be relied upon, for the courts find it necessary to overrule cases which have been hastily decided, or contrary to principle. Many hundreds of such overruled cases may be found in the American and English books of reports.

This policy . . . 'is based on the assumption that certainty, predictability and stability in the law are the major objectives of the legal system; i.e., that parties should be able to regulate their conduct and enter into relationships with reasonable assurance of the governing rules of law.'" (Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 296.) Accordingly, a party urging overruling a precedent faces a rightly onerous task, the difficulty of which is roughly proportional to a number of factors, including the age of the precedent, the nature and extent of public and private reliance on it, and its consistency or inconsistency with other related rules of law.


This is essentially what I said earlier. Law is not made in a vacuum. It is built up over time, relying on earlier decisions, rationales, and principles. It is not static, of course, but radical changes occur with little frequency. This is true primarily because of the unsettling effect they have on the society's ability to determine in advance whether its behavior conforms to the law, and due to the sweeping changes in a society's practice that radical changes in the law often demand.

Therefore, your dismissal of my argument as the logical fallacy of argumentum ad antiquitatem is inapplicable. Legal analysis relies mostly on previously made and determined law. I didn't appeal to the age of it simply to lend support to the correctness of my analysis. The correctness of it relies almost exclusively on the long-standing tradition, which tradition itself is founded on principle. The tradition is integral to the law because of stare decisis. Without it, the law would be whimsical and rendered impracticable. It would have little utility to a complex society.

As for the second fallacy you allege, it too is inapplicable. I'm not asserting that my argument is correct simply because it is embraced by a large group of people. It is more weighty than yours because it is the overwhelming, prevailing expert opinion on the matter. Surely you can appreciate why expert opinion on a matter within that expertise might carry more weight than lay opinion on the same. Not only it is an expert opinion, but it is the expert opinion shared by nearly every legal professional and scholar in countries with laws descended from the English Common Law. That is so precisely because legal principles are mostly premised on tradition and practice.

Now, allow me to shift gears for a moment. Had you declared that you have expert credentials in such matters as psychology or human verbal and non-verbal communication, and demonstrated the same, I might afford greater weight to your opinion that facial expressions mean little or nothing in assessing demeanor, and that demeanor has little or no effect upon the reliability of someone's testimony in open court. You didn't, so I must conclude that your opinion is based on little more than intuition and your own experience. Again, I submit that you haven't given due consideration to the possibility that you might be wrong because you haven't considered the matter as thoroughly as it has been explored already by many before you. This isn't science, where one might made a radical new discovery, or philosophy, where one can reason one's way to a firm conclusion from his armchair. This is law.

There is no logical fallacy committed when one defers to expert opinion on a subject within the expert's expertise.

Cool Hand

[Ymir's blood]

Don't you think your stance is a bit arrogant? Not at all.You dismiss the analysis of thousands of legal scholars and practitioners who have wrestled with this issue and developed a sound body of protections for the accused in constitutional, statutory, and case law over the course of hundreds of years. You subordinate the expert opinions of lawyers and legal scholars to your own lay opinion, and then you declare yours to be superior.
I have done nothing of the sort. I have laid out my reasoning. You have simply attempted to dismiss them by stating that numerous experts disagree. That is completely irrelevant to the discussion. Show me where I am wrong, do not tell me that someone else evaluated the question and came up with a different answer.
Neither logical fallacy you allege is applicable here. They are not fallacies because my mention of the legal traditions and the number of scholars, judges, and practitioners embracing them have a sound basis as persuasive argument. They aren't meant as substitutes for sound argument. They are integral to the arguments themselves because this is a legal, not a philosophical, question.
Firstly, they are fallacies because you have used the age of the idea and the number of adherents to support the idea itself. Present the arguments themselves and ignore the sources of those arguments. Secondly, I have demonstrated that this discussion is a philosophical one based on the question asked in the OP.
First, as for legal tradition, there is a fundamental legal principle called stare decisis, "to stand by that which is decided." It is the principle that courts should follow and are bound to follow the precedent decisions of courts in their jurisdiction. They also sometimes look to precedent in other jurisdictions with laws similar to theirs, although such precedent is not binding upon them.
Once again, this is not a legal question so your point is irrelevant. As such, your statements about how legal questions are decided need not be answered.
Therefore, your dismissal of my argument as the logical fallacy of argumentum ad antiquitatem is inapplicable. Legal analysis relies mostly on previously made and determined law. I didn't appeal to the age of it simply to lend support to the correctness of my analysis. The correctness of it relies almost exclusively on the long-standing tradition, which tradition itself is founded on principle. The tradition is integral to the law because of stare decisis. Without it, the law would be whimsical and rendered impracticable. It would have little utility to a complex society.
In this entirely philosophical discussion, it is irrelevant and fallacious.
Now, allow me to shift gears for a moment. Had you declared that you have expert credentials in such matters as psychology or human verbal and non-verbal communication, and demonstrated the same, I might afford greater weight to your opinion that facial expressions mean little or nothing in assessing demeanor, and that demeanor has little or no effect upon the reliability of someone's testimony in open court.
I hardly think it requires expert credentials to know that some people can lie convincingly or that some people will act nervous when subjected to questioning. The latter is especially important to this case as the witnesses will doubtless appear uncomfortable on the stand if they are forced to unveil, regardless if they are being truthful or not.

You didn't, so I must conclude that your opinion is based on little more than intuition and your own experience.
I will thank you to please address the matter at hand and leave my personal situation out of this. In all of these exchanges, you have devoted most of your time to trying to discredit my ability to hold a valid opinion and little time to actually trying to disprove the opinion itself. Whether or not my argument is sound, it stands on its own regardless of my background. Since you think it so wrong, study your experts and explain where I have erred.

By the way, even if I accepted the claim that this was a discussion based on law, you have still failed to establish that the defendant has the right to see the witnesses' faces under New Zealand law. To repeat something that you declined to reply to:


Because it's a legal right, divorcing an analysis of it from law is no different in principle from trying to determine if a batted baseball is fair or foul without having foul lines and without reference to the rules of baseball. "It's not fair because I say so" is not a firm or confident basis for making such a decision.
The question asked was not, "What is the correct legal course in this case?" Furthermore, to carry out your analogy, one would not consult the rules of football to determine the status of the ball. However nothing has been posted about the exact laws of New Zealand that apply to this case.

[Godfather]

Although this is not a legal discussion, I will say that the legal difficulties of this case have little to do with the rights of the accused, and much more to do with the rights of the witness. Cool Hand has surely convinced everyone of the legal right of the defendant to confront their accuser - there's no arguing with that. As people have mentioned, covering your face hides various important non-verbal cues, and could make the witness's testimony ambiguous, or more difficult to correctly interpret. Arguably, this is unfair to the defendant, I suppose, but it doesn't change the fact that the witness is physically present in the court, fulfilling the defendant's right to confront them face-to-face. Similar problems arise with a deaf or non-English-speaking witness speaking through an interpreter, but they are not disqualified from testifying. It's simply up to the defendant's counsel to resolve any ambiguities or unclear points through sufficiently thorough cross-examination.

I think it really boils down to whether it is OK for immigrants to retain their culture while participating in mainstream society. That's a much bigger issue than what people can wear in a courtroom. I also think that the majority of NZ feels much less strongly about it than the politicians quoted in the news stories above, spokespeople from the (very minor) far-right ACT Party and the ostensibly centre-right but fiercely anti-immigration NZ First Party.

[Cool Hand]

Although this is not a legal discussion, I will say that the legal difficulties of this case have little to do with the rights of the accused, and much more to do with the rights of the witness. Cool Hand has surely convinced everyone of the legal right of the defendant to confront their accuser - there's no arguing with that. As people have mentioned, covering your face hides various important non-verbal cues, and could make the witness's testimony ambiguous, or more difficult to correctly interpret. Arguably, this is unfair to the defendant, I suppose, but it doesn't change the fact that the witness is physically present in the court, fulfilling the defendant's right to confront them face-to-face. Similar problems arise with a deaf or non-English-speaking witness speaking through an interpreter, but they are not disqualified from testifying. It's simply up to the defendant's counsel to resolve any ambiguities or unclear points through sufficiently thorough cross-examination.


Excellent points about deaf and non-English speaking witnesses, Godfather.

I have to take issue with your conclusion that the case has little to do with the rights of the accused, however. This case concerns a criminal trial. The accused's rights in a criminal trial are paramount to everyone else's, including the state's. If that were not true, then there would be no presumption of innocence and no burden on the state to prove the accused's guilt beyond a reasonable doubt. The latter is the highest burden known in any court of law. It is so high precisely because our English Common Law system places such importance on protecting the rights of an accused in a criminal trial.

That is not to say that witnesses don't have rights. They are very much subordinate to those of an accused, however, and with good reason. The accused's liberty is at stake. In cultures based on English Common Law, nothing is more sacred, not even the religious values or beliefs of the witness. Indeed, you will likely find little case law concerning any rights of a witness, in stark contrast to a great body of law concerning the right of the accused to confront his accusers.

A balancing test should be employed in resolving the dilemma here. All doubts should be resolved in favor of the accused, however. The witness' rights simply cannot be allowed to take priority over those of the accused.

As an aside, I suspect that the witness is posturing due to family squabbles with the accused. Of course, I could be mistaken, as I do not share a common culture with the witness and thus have difficulty appreciating the gravity of her objections. Furthermore, I do not know her personally. Nevertheless, I have to question her sincerity and commitment to the notion that showing her face to the accused would cause her unbearable shame, but showing it to the judge and defense attorney would not. Even if she is 100% sincere and committed to the principle that showing her face would be the utmost humiliation, I would still resolve this matter in favor of the accused. She risks humiliation. He risks incarceration.

On balance, in cultures in which the English Common Law prevails, the humiliation is the lesser risk by far. That much is embodied and reflected in law.

I just don't think you can divorce this issue from law. It is too bound up in it.


I think it really boils down to whether it is OK for immigrants to retain their culture while participating in mainstream society. That's a much bigger issue than what people can wear in a courtroom. I also think that the majority of NZ feels much less strongly about it than the politicians quoted in the news stories above, spokespeople from the (very minor) far-right ACT Party and the ostensibly centre-right but fiercely anti-immigration NZ First Party.

This isn't about whether immigrants can retain their culture. This is about how we give due respect to this particular immigrant's culture when it ostensibly clashes with the rights of this accused in his criminal trial.

I think your couching it in terms of what she can wear in a courtroom tends to trivialize the gravity of an accused's answering for a felony charge and the rights we afford the accused when doing so. This isn't about telling a state's witness what she can wear. It's about telling her she cannot hide her face on the witness stand, regardless of her reason for wanting to do so.

This shouldn't be a political issue. This is indeed a legal one by its very nature.

One can discuss it in philosophical terms, but it should be resolved using legal analysis.

Cool Hand

[Godfather]

A balancing test should be employed in resolving the dilemma here. All doubts should be resolved in favor of the accused, however. The witness' rights simply cannot be allowed to take priority over those of the accused.

Quite right. This is why I would not be at all surprised if the ruling is that the witness must decide between humiliating herself by revealing her face, or choosing not to testify. Unfortunately this is not a choice her husband, who insists she wears the burka, would have to make. But I would argue that this is a dilema that the Muslim culture must confront, not the justice system. A line must be drawn somewhere to ensure that victims of crime are not denied their right to the protection of the law because it is too difficult or traumatic for them to appear in court. But I strongly doubt that this case is or should be where that line is drawn.

On the other hand, special allowances have sometimes been made for witnesses who would suffer severe emotional distress by appearing in court. Video links for young children in sex-abuse cases are one example, and we saw a similar system used in the recent trials of Pitcairn Islanders accused of sexual offenses, where the remoteness of the location meant that the alleged victims, most of whom had long since moved to New Zealand and England, could not be physically present. I imagine special arrangements might be considered for a hypothetical witness with severe agoraphobia or an intense pathological fear of courtrooms. It's possible that a judge might decide that the experience of appearing in public would cause similar emotional distress to the witness in this case, but I doubt it.

Incidentally, do you think the accused in a criminal case should have the right to wear a veil?

[Ymir's blood]

One can discuss it in philosophical terms, but it should be resolved using legal analysis.
B.S.

[Cool Hand]

On the other hand, special allowances have sometimes been made for witnesses who would suffer severe emotional distress by appearing in court. Video links for young children in sex-abuse cases are one example, and we saw a similar system used in the recent trials of Pitcairn Islanders accused of sexual offenses, where the remoteness of the location meant that the alleged victims, most of whom had long since moved to New Zealand and England, could not be physically present. I imagine special arrangements might be considered for a hypothetical witness with severe agoraphobia or an intense pathological fear of courtrooms. It's possible that a judge might decide that the experience of appearing in public would cause similar emotional distress to the witness in this case, but I doubt it.


Yes, the same allowances for child witnesses in sex abuses cases have been made in the U.S., on a case-by-case basis. Many critics still believe allowing testimony by closed circuit television remains an infringement on the accuser's right to control his accusers.

I recently heard a report on National Public Radio in the U.S. about some of the Pitcairn Island men being tried for raping underage girls living there. If I recall correctly, something on the order of only 50 people reside there. I understand also that the men are challenging UK jurisdiction over them, claiming that its sovereignty over them ended with their ancestors' mutiny on the HMS Bounty. As far as I know, that's a unique claim in legal history. It's interesting. I also recall some of the other islanders pleading for some sentence other than incarceration, claiming they the island depends on the men who now stand convicted to row outboats to meet the ships who bring them supplies each week. I understand that large ships cannot dock on the island due to its dangerous surf and coastline. Without those men, the islanders would starve.


Incidentally, do you think the accused in a criminal case should have the right to wear a veil?

That's an interesting question. I've never considered it. I cannot recall hearing of any cases in which this was an issue. The first thing that comes to mind is that a prosecutor might not object to it. After all, it's the accused who is on trial, and wearing a veil or mask is probably not a good idea for the accused strategically. If I were defending such an accused, I would insist on his not wearing anything tending to invite suspicion of him. I believe a veil or a mask would by its very nature tend to invite such suspicion on the part of a judge or jury. A conscientious trial judge would likely not permit an accused to wear a veil or a mask, not because it would impair a jury's ability to assess his demeanor, but because it would unfairly prejudice the accused's presumption of innocence and right to a trial by an impartial jury. It would tend to suggest the accused has something to hide.

A frequent issue in criminal courts in the U.S. is getting an accused dressed in civilian street clothes for trial when the accused is being held in jail at the time of his trial. Courts have routinely and consistently held that requiring the accused to stand trial before a jury in jail or prison garb denies him a fair trial, as it is unduly prejudicial to his presumption of innocence. It suggests that the accused is a criminal, and thus is more likely to have committed the crime for which he now stands accused. In the U.S., that's usually regarded as effectively denying his Sixth Amendment right to a trial by an impartial jury.

Cool Hand

[Cool Hand]

One can discuss it in philosophical terms, but it should be resolved using legal analysis.
B.S.

OK, you are free to continue to hold onto your opinion. As I understand it, your opinion is that being able to see a witness' face is an unreliable criterium for accurately assessing the witness' credibility. There's nothing wrong with that opinion on its face.

It is against the great weight of legal authority and tradition in the English Common Law, however, as they hold precisely the opposite. If you wish to support your contention with relevant expert opinion that undermines that legal authority and tradition, then please feel free to do so. Otherwise, without such expert opinion, you are pissing in the wind.

Philosophers can ponder this issue to their hearts' content. That's fine. They may resolve it using values, logic, and reason. Only judges have the power to resolve it with authority, however. That's because this concerns legal procedural and substantive rights in a court of law, not in a philosophy lecture hall, or anywhere else divorced from the fact that this involves an actual case in an actual courtroom. Some judge or judges will employ a legal, not a philosophical analysis, to resolve this issue.

Cool Hand

[wade-w]

IIRC, there is expert testo,imy in this particular case that the witnesses would be so traumitized by having their faces bared in public that any visual clues to the veracity or lack thereof while on the stand would be impossible to distinguish from sheer embarrassment. In light of the compromise proposed by the main witness' husband, I'm not sure what this means, however.

[Ymir's blood]

One can discuss it in philosophical terms, but it should be resolved using legal analysis.
B.S.

OK, you are free to continue to hold onto your opinion. As I understand it, your opinion is that being able to see a witness' face is an unreliable criterium for accurately assessing the witness' credibility. There's nothing wrong with that opinion on its face.

It is against the great weight of legal authority and tradition in the English Common Law, however, as they hold precisely the opposite. If you wish to support your contention with relevant expert opinion that undermines that legal authority and tradition, then please feel free to do so. Otherwise, without such expert opinion, you are pissing in the wind.
I have responded to this before. "I hardly think it requires expert credentials to know that some people can lie convincingly or that some people will act nervous when subjected to questioning. The latter is especially important to this case as the witnesses will doubtless appear uncomfortable on the stand if they are forced to unveil, regardless if they are being truthful or not." That was in the post to which you failed to respond, by the way.
Philosophers can ponder this issue to their hearts' content. That's fine. They may resolve it using values, logic, and reason. Only judges have the power to resolve it with authority, however. That's because this concerns legal procedural and substantive rights in a court of law, not in a philosophy lecture hall, or anywhere else divorced from the fact that this involves an actual case in an actual courtroom. No. Judges have the power to resolve the issue only because a government is backing them up. Their decisions may be legal, but they are not necessarily moral, ethical or even in the best interests of the state, the public or anyone.


Some judge or judges will employ a legal, not a philosophical analysis, to resolve this issue.And that is totally irrelevant to the discussion in this thread. We are not asked to decide what the New Zealand judiciary should rule in this case. The OP asked "How do you think this situation should be handled?"

[Godfather]

I recently heard a report on National Public Radio in the U.S. about some of the Pitcairn Island men being tried for raping underage girls living there. If I recall correctly, something on the order of only 50 people reside there. I understand also that the men are challenging UK jurisdiction over them, claiming that its sovereignty over them ended with their ancestors' mutiny on the HMS Bounty. As far as I know, that's a unique claim in legal history. It's interesting. I also recall some of the other islanders pleading for some sentence other than incarceration, claiming they the island depends on the men who now stand convicted to row outboats to meet the ships who bring them supplies each week. I understand that large ships cannot dock on the island due to its dangerous surf and coastline. Without those men, the islanders would starve.

Yeah, it's a fascinating case. All of the accused men have been convicted, but the matter of jurisdiction will not be resolved until next year. If the convictions stand, the men will serve their sentences on the island in a prison which they helped build specifically for the case. They will be allowed out to help man the longboats when necessary.

If I were defending such an accused, I would insist on his not wearing anything tending to invite suspicion of him. I believe a veil or a mask would by its very nature tend to invite such suspicion on the part of a judge or jury.

I thought of this in regards to the idea that allowing the veil to be work might set a dangerous precedent, allowing masks, etc. The same suspicion would be invited regardless of which side the witness was on, so the wearer would have to be pretty stupid to choose to weaken their case without good reason.

[Cool Hand]

IIRC, there is expert testo,imy in this particular case that the witnesses would be so traumitized by having their faces bared in public that any visual clues to the veracity or lack thereof while on the stand would be impossible to distinguish from sheer embarrassment. In light of the compromise proposed by the main witness' husband, I'm not sure what this means, however.

Wade,

As I think you recognize, that sort of expert testimony only speaks to the culture of the witnesses and why or how it might be embarrassing or humiliating to them to testify with the accused's being able to see their faces. An expert witness is only an expert with respect to those matters within his or her expertise. In the matter you cite, there is no indication to me that the expert was one on assessing credibility.

Vmir's blood contends that seeing the witnesses' faces is immaterial to being able to assess their demeanor and credibility. I'm contending that Vmir's blood's opinion needs support for it in the form of expert opinion testimony or analysis. That would be in the form of an expert not on Muslim cultures, but on the reliability of assessing credibility from non-verbal cues. Particularly in this instance, it means whether the reliability of assessing the credibility of a witness would be impaired by her face's being partially concealed by a veil. Such a qualified expert would most likely be some kind of psychologist with training and/or experience in that particular issue.

Where Vmir's blood and I depart is on the issue of whether that matter is one within the common knowledge and experience of laypersons. I contend it is not. I'm not an expert on the factors that go into assessing credibility of persons we look at and listen to in person, and I suspect that Vmir's blood isn't either. If he is, then I invite him to explain his credentials and to give the basis for his opinion. In the absence of his doing so, however, I maintain that his bare assertion that facial expressions are an inadequate basis for assessing credibility is just that--a bare assertion. He hasn't given any grounds for it other than it's his opinion. He apparently thinks it's my burden to prove that facial expressions are important. As I said, that's not within my expertise. What is within my expertise, however, is the general rule of law in English Common Law regarding the right to confront one's accusers and the importance our jurisprudence places upon it. Vmir's blood chooses to disregard that importance. That's fine for argument's sake, but it's not when resolving this matter practically, in a court of law.

I suspect the only real disagreement here is whether we are speaking abstractly or practically. He seems to be preferring abstration. I'm favoring practicality.

I am a lawyer with 16 years of criminal courtroom practice experience to draw upon. I am very certain that in the U.S., my short, light analysis of the right to confront one's accusers, broadly speaking, is correct. When expert testimony to the contrary is embraced by the trial courts in this country and then withstands scrutiny in the appellate court, and specifically by the U.S. Supreme Court, it may no longer be the law of the land in the U.S. Unless or until that occurs, however, my analysis remains correct, at least in the U.S.

Again, I am not licensed to practice law in NZ and I am not familiar with statutory or case law from it, so I cannot speak to any specifics there. Absent something concrete which contradicts my anaylsis, however, I suspect my analysis based on English Common Law is pertinent to this case, as NZ is a country with a legal system borrowed from the English Common Law, much like the U.S. is. Therefore, it's legal principles with respect to upholding and safeguarding the rights of an accused in a criminal trial are likely to be very similar to those in the U.S. That's what it means to say our legal systems share a common heritage.

Cool Hand

[maddog]

IIRC, there is expert testo,imy in this particular case that the witnesses would be so traumitized by having their faces bared in public that any visual clues to the veracity or lack thereof while on the stand would be impossible to distinguish from sheer embarrassment. In light of the compromise proposed by the main witness' husband, I'm not sure what this means, however.

Wade,

As I think you recognize, that sort of expert testimony only speaks to the culture of the witnesses and why or how it might be embarrassing or humiliating to them to testify with the accused's being able to see their faces. An expert witness is only an expert with respect to those matters within his or her expertise. In the matter you cite, there is no indication to me that the expert was one on assessing credibility.

Vmir's blood contends that seeing the witnesses' faces is immaterial to being able to assess their demeanor and credibility. I'm contending that Vmir's blood's opinion needs support for it in the form of expert opinion testimony or analysis. That would be in the form of an expert not on Muslim cultures, but on the reliability of assessing credibility from non-verbal cues. Particularly in this instance, it means whether the reliability of assessing the credibility of a witness would be impaired by her face's being partially concealed by a veil. Such a qualified expert would most likely be some kind of psychologist with training and/or experience in that particular issue.

Where Vmir's blood and I depart is on the issue of whether that matter is one within the common knowledge and experience of laypersons. I contend it is not. I'm not an expert on the factors that go into assessing credibility of persons we look at and listen to in person, and I suspect that Vmir's blood isn't either. If he is, then I invite him to explain his credentials and to give the basis for his opinion. In the absence of his doing so, however, I maintain that his bare assertion that facial expressions are an inadequate basis for assessing credibility is just that--a bare assertion. He hasn't given any grounds for it other than it's his opinion. He apparently thinks it's my burden to prove that facial expressions are important. As I said, that's not within my expertise. What is within my expertise, however, is the general rule of law in English Common Law regarding the right to confront one's accusers and the importance our jurisprudence places upon it. Vmir's blood chooses to disregard that importance. That's fine for argument's sake, but it's not when resolving this matter practically, in a court of law.

I suspect the only real disagreement here is whether we are speaking abstractly or practically. He seems to be preferring abstration. I'm favoring practicality.

I am a lawyer with 16 years of criminal courtroom practice experience to draw upon. I am very certain that in the U.S., my short, light analysis of the right to confront one's accusers, broadly speaking, is correct. When expert testimony to the contrary is embraced by the trial courts in this country and then withstands scrutiny in the appellate court, and specifically by the U.S. Supreme Court, it may no longer be the law of the land in the U.S. Unless or until that occurs, however, my analysis remains correct, at least in the U.S.

Again, I am not licensed to practice law in NZ and I am not familiar with statutory or case law from it, so I cannot speak to any specifics there. Absent something concrete which contradicts my anaylsis, however, I suspect my analysis based on English Common Law is pertinent to this case, as NZ is a country with a legal system borrowed from the English Common Law, much like the U.S. is. Therefore, its legal principles with respect to upholding and safeguarding the rights of an accused in a criminal trial are likely to be very similar to those in the U.S. That's what it means to say our legal systems share a common heritage.

Cool HandSpot on.

I have two potential elaborations: (1) An expert on Muslim culture and a separate expert on nonverbal communication might not be able to make the transition to how ordinary nonverbal communication within a homogeneous culture is altered by cultural differences. In other words, it might take a dual expert to bridge the gap for the trier of fact. (2) [edited to delete the child-victim-witness accommodation cases; scratch that -- already covered in others' earlier posts. Never mind.] But those are the only caveats I'd put on what Cool Hand said. As to U.S. law, and cognates of English common law, I agree with his analysis.

#51

[Cool Hand]

Spot on.

I have two potential elaborations: (1) An expert on Muslim culture and a separate expert on nonverbal communication might not be able to make the transition to how ordinary nonverbal communication within a homogeneous culture is altered by cultural differences. In other words, it might take a dual expert to bridge the gap for the trier of fact. (2) [edited to delete the child-victim-witness accommodation cases; scratch that -- already covered in others' earlier posts. Never mind.] But those are the only caveats I'd put on what Cool Hand said. As to U.S. law, and cognates of English common law, I agree with his analysis.

#51

Thanks, Maddog.

I like your point in (1). I hadn't given it much thought until now, but I agree that there may be possible differences in how non-verbal communications may differ across cultural divides. I would firmly place the burden on the objecting witness to demonstrate why she shouldn't be required to conform to the law in NZ, however, and also how that might outweigh the manifest infringement of the accused's fundamental legal right to confront his accusers.

As Adora and Lunachick both noted, one the things implicit in taking up residence in a foreign country is having to submit to the laws of that country, notwithstanding one's own native or chosen religious and/or cultural backgrounds.

Cool Hand

[wade-w]

In the context if Enghlish Common Law and it's implications for this trial you are correct. But Lunachick has stated elsewhere that she deliberately put this thread in this particular forum rather than the Politics and Law forum because she wanted to consider the issue from other perspectives, not only the Law.

[Cool Hand]

In the context if Enghlish Common Law and it's implications for this trial you are correct. But Lunachick has stated elsewhere that she deliberately put this thread in this particular forum rather than the Politics and Law forum because she wanted to consider the issue from other perspectives, not only the Law.
Yeah, I understand. I did not intend to squelch any further discussion. I suppose I look like a bully. Sorry.

Cool Hand

[Clutch Munny]

The contrast with the philosophy lecture hall is a false one. Philosophical reasoning is precisely what a judge engages in; it's just that blackletter law and/or precedent function as theorems or lemmas in the reasoning. Your point that a judge must reasoning under such lemmas is correct in any case, but I hate seeing (mistaken) uses of 'philosophical' as cognate for 'irrelevant'.

What's neglected here, so far, is the extent to which the relation between facial expression, truth-telling, and observers' judgements is an intensely empirical question. It's not just that this or that can happen. Nor is a judge's application of the law taken to occur in isolation from known facts; that's what expert testimony is all about.

[Cool Hand]

The contrast with the philosophy lecture hall is a false one. Philosophical reasoning is precisely what a judge engages in; it's just that blackletter law and/or precedent function as theorems or lemmas in the reasoning. Your point that a judge must reasoning under such lemmas is correct in any case, but I hate seeing (mistaken) uses of 'philosophical' as cognate for 'irrelevant'.

In the context in which I used "philosophy lecture hall" I meant "abstract" vs. "concrete." I did not mean or imply "irrelevant."

If one attempts to judge the fairness of a substantive and procedural legal right without considering what the law says about it, then one is being less concrete in his analysis than one would be otherwise.


What's neglected here, so far, is the extent to which the relation between facial expression, truth-telling, and observers' judgements is an intensely empirical question. It's not just that this or that can happen. Nor is a judge's application of the law taken to occur in isolation from known facts; that's what expert testimony is all about.
It's not neglected. We have discussed that issue. We've also discussed expert testimony regarding that very issue. If you care to discuss it further, please do.

The thread spun off on a tangent about Vmir's blood's opinion that facial expressions are not reliable for assessing credibility, versus what the law assumes about their being critical in doing so. I think it was a worthy tangent and a good point, but unfortunately we got bogged down in whether law was even relevant.

Cool Hand

[Clutch Munny]

The contrast with the philosophy lecture hall is a false one. Philosophical reasoning is precisely what a judge engages in; it's just that blackletter law and/or precedent function as theorems or lemmas in the reasoning. Your point that a judge must reasoning under such lemmas is correct in any case, but I hate seeing (mistaken) uses of 'philosophical' as cognate for 'irrelevant'.


In the context in which I used "philosophy lecture hall" I meant "abstract" vs. "concrete." I did not mean or imply "irrelevant."

Okay. That's not quite the connotations associated with your earlier allusion to philosophy, which I quote below, but I accept your clarification of this particular remark.



What's neglected here, so far, is the extent to which the relation between facial expression, truth-telling, and observers' judgements is an intensely empirical question. It's not just that this or that can happen. Nor is a judge's application of the law taken to occur in isolation from known facts; that's what expert testimony is all about.
It's not neglected. We have discussed that issue. We've also discussed expert testimony regarding that very issue. If you care to discuss it further, please do.

Well, I've discussed it. Maybe a couple others, indirectly, and you of course showed keen insight by citing my remarks approvingly. :wink: But both Ymir's emphasis on what merely could or can happen, and your seeming ambivalence about the significance of empirical work on the question, struck me as worthy of remark.

I mean, your earlier comments start off promisingly, but end wrongly, to my mind:

Had you declared that you have expert credentials in such matters as psychology or human verbal and non-verbal communication, and demonstrated the same, I might afford greater weight to your opinion that facial expressions mean little or nothing in assessing demeanor, and that demeanor has little or no effect upon the reliability of someone's testimony in open court. You didn't, so I must conclude that your opinion is based on little more than intuition and your own experience. Again, I submit that you haven't given due consideration to the possibility that you might be wrong because you haven't considered the matter as thoroughly as it has been explored already by many before you. This isn't science, where one might made a radical new discovery, or philosophy, where one can reason one's way to a firm conclusion from his armchair. This is law.

The first bolded bit seems correctly to recognize that there is a relevant expertise associated with questions of the communicative power of facial expressions. The second bolded bit seems mistaken; this may well be scientifically illuminable. Surprising discoveries about the nature and extent of non-verbal communication are not only possible but actual. And a last wrong note, to my ear, is the contrast with law at the very end. The interpretation and application of law is constantly informed by best scientific opinion on relevant matters. Hence discussion that focuses on what might be the case rather than what is the case strikes me as somewhat misdirected, as does discussion that seems to disjoin legal questions and factual ones when the two are really intimately linked.