Tuesday, March 27, 2012
Brian M. Murray has posted Confronting Religion: Veiled Muslim Witnesses and the Confrontation Clause (Notre Dame Law Review, Vol. 85, p. 1727, 2010) on SSRN. Here is the abstract:
This note analyzes the competing constitutional interests that are at play when a veiled Muslim witness seeks an exemption under the Free Exercise Clause from general court procedures regarding witness attire. Is the liberty interest found in the Free Exercise Clause stronger than that found in the Confrontation Clause? In such a situation, which constitutional right takes precedence? The government is caught in the middle because it has an interest in upholding both constitutional rights. Protecting religious freedom seems just as important as ensuring that criminal defendants receive a fair trial, especially given the explicit guarantees of both the First and Sixth Amendments. This scenario is likely to occur in a post-9/11 world given the heightened awareness of the place of Muslims in American society and an increasing interest in the intersection of religious practice and the law. This is especially true considering the increase in the number of U.S. residents that identify as Muslims.
Part I acknowledges the various interests held by the witness, the defendant, and the State. Part II discusses current doctrine regarding the Confrontation Clause as well as religious exemptions analysis under the Free Exercise Clause. Part III demonstrates why the witness could plausibly argue for an exemption given current doctrine for both constitutional provisions. Part IV recognizes the potential problems with granting such an exemption. Finally, this note proposes two possible solutions to the constitutional conflict and analyzes each solution’s shortcomings.