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When Ginnah Muhammad stepped into a Hamtramck, Mich., courtroom last October, she had no reason to think her religion would have anything to do with the outcome of her case. As a conservative Muslim, she wore a full veil (or niqab) that left only her eyes exposed, but that surely seemed irrelevant to her garden-variety, decidedly secular small-claims dispute with Enterprise Rent-A-Car. Judge Paul Paruk saw things differently, however. He dismissed Muhammad’s case because she refused to remove her veil. According to the transcript, Paruk initially sent his court officer to request that Muhammad take off her niqab while she was seated in the courtroom. She declined and approached the bench fully veiled when her case was called. Paruk then politely insisted that she bare her face: “One of the things that I need to do as I am listening to testimony is I need to see your face, and I need to see what’s going on. And unless you take that off, I can’t see your face, and I can’t tell whether you’re telling me the truth or not.” Muhammad demurred. “I’m a practicing Muslim,” she said, “and this is my way of life, and I believe in the Holy Koran and God is first in my life.” That was not enough for Paruk, who then gave her a choice between removing her veil to testify and having her case dismissed. “I wish to respect my religion,” she replied, “and so I will not take off my clothes.” Apparently baffled by her response, Paruk attempted a compromise. “Well, it’s not taking off your clothes. All I am trying to do is ask you to take off the part that’s covering your face so I can see your face, and I can hear you and listen to you when you testify, and then you can put the veil back on.” “Well, Your Honor, with all due respect,” said Muhammad, “this is part of my clothes, so I can’t remove my clothing when I’m in court.” With that, Paruk ordered the case dismissed, leaving a host of questions unanswered (and not just whether Enterprise had wrongly charged Muhammad $2,750 for damage to her rented truck). Was the court’s ruling right or wrong? And if the latter, was it an ordinary judicial error, or might anti-Muslim bias also have played a part? WE’RE LYING TO OURSELVES Under the Michigan Constitution, a law (or court order) may not be enforced in a way that substantially burdens a person’s religious practice, unless it is the least restrictive means of serving a compelling government interest. At first glance, Paruk’s ruling might seem to meet that test. After all, judges have to assess witnesses’ truthfulness, presumably by scrutinizing their demeanor for signs of evasiveness or deception, and the state certainly has a significant interest in accurate fact finding. It is largely a myth, however, that judges — or anyone else — can reliably differentiate between honesty and mendacity simply by picking up visual cues. Studies have consistently shown an extremely high error rate in recognizing deception, even among professionals who pride themselves on their ability to weed out deceit. In one set of tests given to judges, police officers, trial lawyers, psychotherapists, CIA agents, and customs examiners, no group was able to identify liars at a rate better than 50 percent. Unfortunately, most people are deluding themselves when they claim to be good judges of character or capable of spotting liars on sight. In most cases they simply mistake indicators of nervousness (stammering, fidgeting, blinking) for deception — or signs of self-confidence for honesty — often with predictably disastrous results. There is one exception to the rule, as I learned when writing Lawyers’ Poker: 52 Lessons That Lawyers Can Learn From Card Players. Successful professional poker players can, and do, accurately read their opponents’ intentions, figuring out when they are bluffing, when they are holding winning cards, and exactly what it will take to sucker them into losing bets. IS HE BLUFFING? Some of the great poker mavens have revealed their secret techniques for identifying “tells,” but they don’t provide much support for Paruk. For starters, it is nearly impossible to pick up a reliable tell on the basis of a first impression. Mike Caro, poker’s “Mad Genius” and author of the famous Book of Poker Tells, explains that it is crucial “in discovering tells . . . for a player to develop a sense of the baseline behavioral repertoire of one’s opponents.” That simply can’t happen in the compressed time frame of a small-claims trial. Moreover, poker games — unlike trials — provide repeated opportunities to validate your interpretation of tells. If you suspect that an opponent is inadvertently signaling a bluff, well, all you have to do is call the bet to find out. Over a series of hands, you can pretty much determine whether your intuition is accurate. In contrast, a judge’s conclusion about credibility is self-fulfilling, a onetime decision with neither a baseline nor a reliable means of external verification. There is no equivalent to showing the actual cards, so suspected liars just lose their cases, and that’s that. Even if these considerations are put aside, Paruk is badly mistaken if he thinks that facial expressions hold the key to credibility. In fact, just the opposite is true. Joe Navarro, a former FBI interrogator who now teaches poker seminars, explains in his recent book, Read �Em and Reap, that the face is actually the most deceptive part of a person’s body. “If we couldn’t control our facial expressions,” he asks, “why would the term �poker face’ have any meaning?” Indeed, Navarro says, “our feet are the most honest part of our body” because they most accurately indicate the instinctive reflex to “freeze, fight, or flee.” It is the position of your feet, not the look on your face, that will most likely reveal emotional reactions such as anger, aggression, or fear. And finally, as Navarro also points out, most tells disclose nothing more than a player’s level of confidence in his hand. In poker, of course, confidence is a reliable proxy for truthfulness — self-assurance means good cards, while visible doubt suggests a bluff. But that is far from the case at trial, where a witness’s lack of confidence is more likely the product of disorientation or discomfort than trickery. OUT OF LUCK EITHER WAY It turns out that Paruk had no reason, let alone a compelling one, to dismiss Muhammad’s case, but that does not necessarily make him an anti-Muslim bigot. Most judges probably share his belief in the importance of seeing a witness’s face, so it is easy enough to attribute his error to that common misconception. On the other hand, prejudice and ignorance often overlap, and the consequences can be indistinguishable when the victim belongs to a vulnerable minority. Paruk should have realized that he was depriving Muhammad of an important civil right — her day in court — on the basis of her religious practice, yet he was unwilling to re-examine his own preconceptions about the trial process, or even adjust his procedures, in order to accommodate her faith. That amounted to discrimination and possibly a significant financial loss to Muhammad, even if it was not motivated by animus or ill will. This would be a good time for the judge to realize that Themis, the goddess of justice, wears a blindfold for a reason.
Steven Lubet teaches law at Northwestern University. His latest book is Lawyers’ Poker: 52 Lessons That Lawyers Can Learn From Card Players (Oxford University Press, 2006). This article originally appeared in The American Lawyer , an ALM publication.

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