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Assessing Witness Credibility Myths
- 1. Assessing credibility Leslie Cuthbert Crown Court Recorder, Tribunal Judge, Adjudicator and Trainer for the Judicial College and La Touche Training
- 2. Session aims By the end of the session you will have had an opportunity to: Consider what demeanour is made up of. Consider how much reliance should be put on demeanour in assessing a witness's evidence. Become acquainted with some of the 'myths' surrounding the assessment of credibility.
- 3. Exercise You will need a pen and a piece of paper. You have 2 minutes to write down as many of the individual states of the United States of America as you can remember by yourself - no discussions!
- 4. Why a session on assessing demeanour? In parts of Germany in the 13th century the hand of a believed victim of murder would be brought in to court and given to the suspected killer who, clad only in a loincloth, would have to hold it and assert their innocence 3 times. If the judge detected signs of discomfort in either the Defendant or the hand, guilt would be established.
- 5. Watch the following and assess the demeanour of the family members • Carmen Thomas - https://www.youtube.com/watch?v=PtxfHeJw65E • Stuart Hazell - https://www.youtube.com/watch?v=0xRGr8KwGj o • Aisling Symes - https://www.youtube.com/watch?v=AByKwX9Yz ms
- 6. Five (suggested) aspects to demeanour Can you identify them? • Body language • Facial expressions • Tone of voice • Style of speaking • Content
- 7. Demeanour as described by Lord Bingham "the sum of a witness' conduct, manner, bearing, behaviour, delivery, inflexion" [1968] 2 Lloyd's Reports 5
- 8. What indicators do you take from a person's body language?
- 9. What indicators do you take from a person's facial expressions?
- 12. What indicators do you take from a person's tone of voice? • A person telling the truth has nothing to fear and therefore has no reason to stammer or hesitate? • Therefore people telling the truth will be confident, spontaneous and relaxed. • Will a person who is attempting to lie lower their voice or alternatively will they speak in a 'squeaky' high pitched voice?
- 13. What indicators do you take from a person's style of talking? • Aggressive. • Passive. • Assertive.
- 14. What about the content of what someone is saying? • Often a better means of assessing a person's credibility. • A form of 'forensic linguistic analysis’ helps to detect possible deceit due to the increased cognitive load when lying. • Look out for: • distancing language i.e. avoiding the use of I - "how can you say that?" • passive language - "if you say so" • negative language - "You cannot be serious" • content at odds with non verbal - saying "No" but nodding head • longer pauses in their speech • making more word and phrase repetitions • a tendency to make generalised statements • a tendency to make shorter statements
- 15. What do people believe are the non-verbal cues to deception?
- 16. What people believe about non-verbal and verbal cues to deception? • Global Deception Team (2006) • Beliefs relate to: • Gaze aversion • Body movements and nervousness • Inconsistency • Lack of plausibility
- 17. Further beliefs • Untidy people are more suspicious/less trustworthy than smartly dressed people • People wearing dark clothing are more suspicious than those wearing light clothing • Attractive people are more honest than less attractive people
- 18. Exercise Part II • You again have 2 minutes to write down as many of the individual states of the United States of America as you can remember by yourself. • Do NOT look at the earlier sheet on which you wrote down the list.
- 19. Exercise Part III • How did you do? • Compare your first and second lists. Is there a difference - an inconsistency? • The likelihood is that on your second list you had more states listed. This is called 'Reminiscence' (in psychology) - which refers to a gain in performance without practice. It is perfectly natural and does not indicate deceit by itself.
- 20. What are the causes of unreliability in a witness's account? • Three common sources according to Lord Bingham: • Exposure to later information • Loss of recollection through passage of time • Wishful thinking
- 21. Yet what do we perceive the verbal cues to deception to be? • Consistent v Inconsistent statements • Lord Justice Maurice Kay: ‘The mere fact that a witness has said substantially the same thing on a previous occasion will not generally be a sufficient basis to adduce the previous statement when the truthfulness of his evidence is put in issue.’
- 22. How good are we at detecting lies told by adult strangers?
- 23. Discriminating between truth and lies in children we haven't met before? • When do children start to lie? • How do they learn to lie? • Accuracy rates in laypersons in identifying lies in children are 49 - 66% • Accuracy rates in professionals in identifying lies in children are 43 - 67%
- 24. Who was telling the truth? • Carmen Thomas - https://www.youtube.com/watch?v=PtxfHeJw 65E • Stuart Hazell - https://www.youtube.com/watch?v=0xRGr8K wGjo • Aisling Symes - https://www.youtube.com/watch?v=AByKwX 9Yzms
- 25. Some conclusions • Don't make snap judgments (gut feelings) based upon a sole aspect of someone's demeanour. • Instead be alive to inconsistencies between the content of what someone is saying and the other 4 communication channels. • On spotting an inconsistency probe the content/topic being spoken about - use an information-gathering style - SNORE! • Be suspicious - but do not show it • Let the witness repeat him or herself • Ask the witness temporal questions - work backwards • Consider how readily the witness makes concessions?
Editor's Notes
- Unfortunately many people still believe that we are good at assessing someone's honesty by means of their facial expressions, body language and demeanour generally. Judges often advise juries to use their common sense and knowledge of human nature in assessing the evidence that they hear but the problem is that we are generally rubbish at interpreting people and may be misled as a result of someone's demeanour. The 'shifty' witness.
- The first four are all difficult to assess accurately without a 'baseline' i.e. the person's normal behaviour in a low stress environment, however, giving evidence in court or a tribunal is unlikely to ever be a low stress environment.
- The first four are all difficult to assess accurately without a 'baseline' i.e. the person's normal behaviour in a low stress environment, however, giving evidence in court or a tribunal is unlikely to ever be a low stress environment.
- What aspects of body language do you consider in assessing a witness? Arms folded - being defensive Adults may quickly touch near their mouth or nose shortly after having told a lie. Like one of the 3 wise monkeys people are putting their hands over their mouths to 'speak no evil'. Individuals will often touch or try to cover their eyes when lying; attempting perhaps to 'see no evil'. People wringing their hands are working hard to hide something. People will wriggle or shuffle about, whether standing or sitting down, when telling a lie. A person's rate of blinking may increase when they are lying. The person may become flush because they know they are lying.
- Which is the genuine smile here? Why reach that conclusion? Possibly the one on the left - why? Because the muscles around the eyes are engaged as well as the mouth. The only problem with this is that 1 in 10 people can manipulate the muscles around the eyes as well as the mouth. If a person is right handed and they look up and to the left what does that indicate - that they are remembering a visual event. To the left, horizontally - remembering an audio event. To the right and up or to the right and level with ears - making something up. What about if the person doesn't make eye contact with you - gaze aversion often taken as an indicator of a lie but it may be a cultural issue, a mark of respect. Any fans of the TV program - 'Lie to Me' out there? In order to be able to reach more definitive conclusions about an individual's true thoughts about a subject the person interpreting facial expressions would need to undertake certain rigorous steps: 1) They would need to obtain a baseline of the individual's behaviour in a number of situations such as telling the truth, lying, being annoyed, feeling calm and so on; 2) They would need to record visually and audibly the entirety of what the person is saying to them; 3) They would need to then spend a much longer period of time watching the recording back in an effort to identify the 'micro-expressions' the person reveals as the conversation progresses.
- A person telling the truth has nothing to fear and therefore has no reason to stammer or hesitate - based on the myth that being subject to charges of perjury for falsely testifying under oath is sufficient to extract truthfulness from someone.
- Elements of the Aggressive Style Mottos and Beliefs "Everyone should be like me." "I am never wrong." "I've got rights, but you don't." Communication Style Close minded Poor listener Has difficulty seeing the other person's point of view Interrupts Monopolizing Characteristics Achieves goals, often at others' expense Domineering, bullying Patronizing Condescending, sarcastic Behavior Puts others down Doesn't ever think they are wrong Bossy Moves into people's space, overpowers Jumps on others, pushes people around Know-it-all attitude Doesn't show appreciation Nonverbal Cues Points, shakes finger Frowns Squints eyes critically Glares Stares Rigid posture Critical, loud, yelling tone of voice Fast, clipped speech Verbal Cues "You must (should, ought better)." "Don't ask why. Just do it." Verbal abuse Confrontation and Problem Solving Must win arguments, threatens, attacks Operates from win/lose position Feelings Felt Anger Hostility Frustration Impatience Effects Provokes counteraggression, alienation from others, ill health Wastes time and energy oversupervising others Pays high price in human relationships Fosters resistance, defiance, sabotaging, striking back, forming alliances, lying, covering up Forces compliance with resentment Elements of the Passive Style Mottoes and Beliefs "Don't express your true feelings." "Don't make waves." "Don't disagree." "Others have more rights than I do." Communication Style Indirect Always agrees Doesn't speak up Hesitant Characteristics Apologetic, self-conscious Trusts others, but not self Doesn't express own wants and feelings Allows others to make decisions for self Doesn't get what he or she wants Behaviors Sighs a lot Tries to sit on both sides of the fence to avoid conflict Clams up when feeling treated unfairly Asks permission unnecessarily Complains instead of taking action Lets others make choices Has difficulty implementing plans Self-effacing Nonverbal Cues Fidgets Nods head often; comes across as pleading Lack of facial animation Smiles and nods in agreement Downcast eyes Slumped posture Low volume, meek Up talk Fast, when anxious; slow, hesitant, when doubtful Verbal Cues "You should do it." "You have more experience than I do." "I can't......" "This is probably wrong, but..." "I'll try..." Monotone, low energy Confrontation and Problem Solving Avoids, ignores, leaves, postpones Withdraws, is sullen and silent Agrees externally, while disagreeing internally Expends energy to avoid conflicts that are anxiety provoking Spends too much time asking for advice, supervision Agrees too often Feelings Felt Powerlessness Wonders why doesn't receive credit for good work Chalks lack of recognition to others' inabilities Effects Gives up being him or herself Builds dependency relationships Doesn't know where he or she stands Slowly loses self esteem Promotes others' causes Is not well-liked Elements of the Assertive Style Mottoes and Beliefs Believes self and others are valuable Knowing that assertiveness doesn't mean you always win, but that you handled the situation as effectively as possible "I have rights and so do others." Communication Style Effective, active listener States limits, expectations States observations, no labels or judgments Expresses self directly, honestly, and as soon as possible about feelings and wants Checks on others feelings Characteristics Non-judgmental Observes behavior rather than labeling it Trusts self and others Confident Self-aware Open, flexible, versatile Playful, sense of humor Decisive Proactive, initiating Behavior Operates from choice Knows what it is needed and develops a plan to get it Action-oriented Firm Realistic in her expectations Fair, just Consistent Takes appropriate action toward getting what she wants without denying rights of others Nonverbal Cues Open, natural gestures Attentive, interested facial expression Direct eye contact Confident or relaxed posture Vocal volume appropriate, expressive Varied rate of speech Verbal Cues "I choose to..." "What are my options?" "What alternatives do we have?" Confrontation and Problem Solving Negotiates, bargains, trades off, compromises Confronts problems at the time they happen Doesn't let negative feelings build up Feelings Felt Enthusiasm Well being Even tempered Effects Increased self-esteem and self-confidence Increased self-esteem of others Feels motivated and understood Others know where they stand