It was legally permissible for a Muslim woman to wear a facial scarf while testifying during the trial of a teen who was convicted of murder, a state Superior Court panel has ruled.

Christopher Joseph Smarr wasn’t denied a fair trial because he and the jury could still gauge the woman’s demeanor despite the face covering that was somewhat transparent and left her eyes exposed, Judge Maria McLaughlin concluded in the court’s opinion denying Smarr’s appeal, according to Reason.

Therefore, Smarr wasn’t deprived of his constitutional right to confront his accuser, McLaughin found. She concluded the woman’s religious rights were protected as well.

PennLive reported that the woman was the sole eye-witness to the fatal drug-related shooting for which Smarr was prosecuted in Westmoreland County Court. Smarr was 17 at the time of the murder. He is serving a 45-year to life prison sentence.

Christopher Smarr

McLaughlin noted Smarr challenged the woman’s intent to testify with her face covered when she took the witness stand for his 2016 trial. The county judge presiding at the trial allowed her to testify under the partial concealment after she said she covered her face as a religious practice. The woman also said she was wearing the scarf “out of concern for her safety,” McLaughlin noted.

The woman testified that she saw Smarr shoot the victim – her boyfriend – during a robbery. Police said the March 2015 killing occurred amid a turf war among drug dealers in New Stanton.

Smarr claimed on appeal that allowing the woman to wear the scarf denied him his right to confront her “face-to-face.”

From Commonwealth v. Smarr, a nonprecedential decision handed down on JULY 03, 2019 by a Pennsylvania appellate court:

Christopher Joseph Smarr appeals from the judgment of sentence entered following his convictions for first-degree murder, robbery, and related charges…. The Commonwealth brought charges against Smarr based on allegations that… he shot and killed the victim, Brandon Gray. The shooting occurred during a robbery, as part of a “turf war” between rival drug dealers….

Smarr argues that the court erred in allowing [Janay] Brown [the sole eyewitness to the shooting] to testify while wearing a scarf over part of her face because this denied Smarr his right to face-to-face confrontation under the Confrontation Clauses of the federal and state constitutions. Smarr argues that Brown’s testimony was impermissible under the test announced in Maryland v. Craig, 497 U.S. 836 (1990), for two reasons. First, Brown testified she only wears the scarf on Fridays, when she attends religious services at the Jum’ah, and whenever she feels that she wants to; she did not testify her religion required her to wear the scarf while testifying, and it was therefore unnecessary to allow her to do so. Second, Smarr contends the reliability of Brown’s testimony was not otherwise assured, as the jury were unable to clearly see Brown’s facial expressions and thus fully assess her demeanor and credibility.

The United States and Pennsylvania Constitutions provide criminal defendants the right to confront those who testify against them at trial. See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him”); Pa. Const. Art. 1, § 9 (“In all criminal prosecutions the accused hath a right … to be confronted with the witnesses against him”)….

In Maryland v. Craig, the United States Supreme Court explained that the right to confrontation includes the following elements: (1) the witness testifies while face-to-face with the defendant; (2) the witness testifies under oath and (3) under the penalty of perjury; (4) the witness is subjected to cross-examination; and (5) the jury is able to observe the demeanor of the witness, “thus aiding the jury in assessing his [or her] credibility.” The Court held that the Confrontation Clause is not violated when a defendant is denied the first element, “a physical, face-to-face confrontation at trial,” so long as 1) “denial of such confrontation is necessary to further an important public policy” and 2) “the reliability of the testimony is otherwise assured.”

We conclude that Smarr has failed to establish that he was denied a physical, face-to-face confrontation with Brown. Smarr and Brown were in the same room, sitting within a few feet of each other, when Brown testified. Cf. Craig (distinguishing testimony via one-way video- conferencing from “live, in-person testimony” and holding that former is not face-to-face confrontation); Commonwealth v. Atkinson (Pa. Super. 2009); (holding two-way video-conferencing not constitutionally equivalent to physical face-to-face confrontation). In addition, Brown’s eyes were unobstructed. Cf. Craig (emphasizing one-way video-conferencing was not face-to-face confrontation because it prevented witness from seeing defendant while testifying); Coy v. Iowa (1988) (holding testimony given while screen was positioned between defendant and witness stand, preventing witness from seeing defendant, did not satisfy face-to-face confrontation).

That’s not so, McLaughlin found, because Smarr and the woman “were in the same room, sitting within a few feet of each other.” The jury was able to see the woman’s eyes, gauge her gestures and body language and saw her break down into tears, the judge noted.

“No precedent has been established that a witness’ clothing or accessories renders a physical, in-court confrontation other than face-to-face, particularly where the clothing does not obstruct the witness’ eyes, and we decline to do so under the facts of this case,” McLaughlin wrote.

Her court also rejected Smarr’s argument that prosecutors shouldn’t have been allowed to introduce evidence about another drug-related robbery that occurred at the same location hours before the murder.

Nor did the state judges accept his claim that forensic evidence regarding the path of the fatal shot contradicted the woman’s testimony and so should have led to his acquittal.