In
Commonwealth of Pennsylvania v. Smarr, (PA Super., July 3, 2019), a Pennsylvania state appellate court held that the Confrontation Clauses of the U.S. and Pennsylvania constitutions were not violated when a trial court allowed the sole eye-witness to a murder to testify with a colorful scarf covering her mouth and nose. The witness, a Muslim, said that she wears a face covering on Fridays, when she goes to religious services, and whenever else she feels like it. She said she was wearing it to court out of concern for her safety. Focusing on the importance of protecting the witness' free exercise rights, the court said in part:
No precedent has established that a witness’s clothing or accessories renders a physical, in-court confrontation other than face-to-face, particularly where the clothing does not obstruct the witness’s eyes, and we decline to do so under the facts of this case. We therefore hold that Smarr’s right to be brought face-to-face with his accuser was satisfied....
[T]he jury could view Brown’s eyes, and to some extent, her facial expressions; her posture, her gestures, and her body language; hear her tone of voice, her cadence, and her hesitation; and observe any nervousness, frustration, or hostility.
