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AUGUST 2014 - Cynthia Cohen
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COMMUNICATION AND TRIAL PRACTICE COLUMN

Communication and Trial Practice Tips for the Woman Lawyer

Demeanor, Deception, and Credibility in Witnesses
Part 3: DECEPTION TRAINING

by Cynthia R. Cohen, Ph.D., Verdict Success LLC

 

This is the third installment adapted from an earlier paper in conjunction with an ABA Section of Litigation Annual Meeting presentation. I’m sharing this knowledge with WLALA over several months.

Training in Detection. Contrary to popular belief, women do not do better than men in recognizing lying. It takes teamwork in a deposition because watching the witness is more focused when separate from asking questions. Studying videotaped depositions afterwards is useful, especially if discovery is still ongoing and there is a chance for further inquiry. Getting a baseline of the individual’s behavior can be difficult at the first meeting for many reasons. Detecting deception is a learnable skill. Ekman’s F.A.C.E. training in physiological differences in emotions develops the skills. I was lucky to have learned directly from Paul Ekman about training in detection. We did training for lawyers together in the early 1990s. Much of my writing reflects his work, while my examples come directly from my observations and work as a trial consultant.

Infallible Lie Detector? In the courtroom, lies succeed or fail depending on the liar’s motivations and the ability of the observer (lie detector) to detect lies. The most significant body of scientific psychological work on lying focuses on methods for detecting deceptiveness by observing nonverbal behavior. Unfortunately, both for psychologists and lawyers, results suggest there is no infallible lie detection tool – human or mechanical. Individuals are so complex that there are no certain, universal signs of lying. There is nothing that works for everyone. There is no change in voice or body that always means one is lying. There is no sign of lying that belongs to lying itself. There are however, signs of fear.

Micro expressions. Physiologically humans are all keyed the same when you connect facial muscles to emotions. We learn from Ekman’s pioneer work that a frown from a remote island native in New Guinea uses the same facial muscles as a frown from a California native. When someone tries to mask an emotion (e.g., anger, sadness, happiness, surprise), there is often leakage of emotion and micro expressions are revealed. Micro expressions are small bits or blips of the emotion being felt. Micro expressions are revealed when first learning an unknown such as implicating evidence being revealed by a prosecutor. Training in recognizing emotions helps the lie detector pick up clues quicker. Below are a couple celebrity examples of witnesses being presented with evidence. 

President Clinton. President William Clinton is a solid communicator whose baseline communication is very presidential. His speech pattern is controlled, self-assured, calming, and absent ums, ahhs, or fillers during television casts. During the Monica Lewinsky debacle, we saw flat denials of ever having sex with that woman. In a press conference with his wagging finger, “I want you to listen to me. I did not have sex relations with that woman, Miss Lewinsky. These allegations are false.” Later in an interview with Jim Lehr, we hear a different tune.

Clinton:           I did not ask anyone to tell anything but the truth. There is no improper relationship. I intend to cooperate with this inquiry.

Lehr:               No improper relationship. Define what you mean by that?

Clinton:           There is not an improper sexual or any other improper relationship.

Viewing the grand jury videotape, we see deviations from the baseline. President Clinton is not prepared for the prosecution having evidence or details that were revealed and is at a loss for a reply consistent with his normal presidential baseline.

Clinton:           You are free to infer that my testimony is that I did not have sexual     relations as I understand this term to be defined.

Prosecutor:    Including touching her breast?

Clinton:           That is correct.

Prosecutor:    The insertion of an object into the genitalia of another person?

Clinton:           There is nothing here about that is there? [Clinton’s forehead reveals leakage as he tries to control his emotions when he comments. His face reddens and his forehead muscles scrunch during this short pause.] I never thought about that.

Best time to catch a witness’ micro expressions is when the witness is not prepared on the newly introduced topic. Clinton knows how to use his verbal communication strength and the best time to catch his lie is the first time presented with the evidence. Clinton later that day returns to baseline presidential mode and delivers comments to the public. “Indeed I did have a relationship with Monica Lewinsky that was not appropriate. In fact it was wrong . . . lapse in judgment. I told the grand jury, at no time did I ask anyone to lie, hide or destroy evidence or to take any other unlawful action.”

O.J. Simpson. Viewing the videotaped deposition of O.J. Simpson as a defendant in the civil trial brought by Ron Goldman’s family, you see Simpson’s expressions when confronted with evidence of his wearing the murder shoes for the first time. As Dateline says, “If the criminal case had the glove, the civil case had the shoes.” Simpson is caught lying about the “ugly-ass Bruno Magli shoes.”

Testimony before Daniel Petrocelli introduces the photographs.

Petrocelli:       Do you know why the shoe prints found at Bundy, matched     

                        Bruno Magli shoes?

Simpson:        No.

Petrocelli:       Did you every buy shoes that you knew were Bruno Magli shoes?

Simpson:        No.

Petrocelli:       How do you know that?

Simpson:        If Bruno Magli makes shoes that look like the shoes they had in          

                        court involved in this case, I would have never worn those

                        ugly ass shoes.

Testimony after photographs of Simpson wearing Bruno Magli shoes are introduced.

Petrocelli:       Anything about the depiction of you in the photograph that

                        tells you something is wrong in that photograph?

Simpson:        Everything looks a little big. [Simpson’s eyes go wide when he first

                        views the pictures. It is a look of fear.]

Petrocelli:       Excuse me?

Simpson:        Everything looks a little big.

Petrocelli:       The body parts?

Simpson:        The clothing – the pants and the coat looks a little big for me.

Petrocelli:       Anything else?

Simpson:        I don’t recognize the shoes obviously.

The first time Simpson looks at the pictures is when you get the emotional reaction of the wide eyes. After that, the emotions and expressions are more controlled and the reaction is not detected.

Mistakes Liars Make. It is no secret that people frequently make mistakes when they are lying. Most liars don’t plan their lies. Because most lies are about facts rather than emotions, a liar’s emotions often reveal deception. Frequently, feelings about lying betray the liar. Mistakes in lying often occur for one of two reasons – thinking or feelings. If your job is to detect a lie, you can take advantage of how people poorly prepare and that their emotions become involved in the process of their lying. The liar is often vulnerable because he or she is in the position of trying to hold onto a thought without revealing it. The pressure of this struggle makes revelation more urgent, especially if the lie is about feelings. The conflicting emotions usually slip out, if not verbally than nonverbally via involuntary muscle movements (e.g., covering one’s mouth or quivering lips).

Liars’ failure to prepare a line ahead of time often traps them. A professional liar has a prepared script. One trick to catch the professional liar is taking him or her off script. Instead of walking through the timeline “then what happened?” ask the witness to tell the story backward. Reverse order proves to be successful for police officers ability to detect deception.[i] Regarding feeling – lies about feelings are harder to control than lies about facts. When emotions are involved in the process of lying, there generally is nonverbal leakage. There may be involuntary signs in the lips. Guilt increases the leakage. Shame prevents it.

You can learn to catch these signals and to pursue those suspected of lying more aggressively. Learn to understand nonverbal signs and their meanings more accurately. For example, it is often easy to recognize signs of fear in a witness but one must know what is behind such signs. Is this person afraid of being caught lying or merely afraid of being disbelieved? What motivates the witness? What differences between the person being questioned and the questioner affect perceptions about what is said? These kinds of psychological insights require understanding of how others think and are among the skills that can be learned.

Next month’s column will include more clues to spotting liars.


[i] Vrij, A., Mann, S.A., Fisher, R.P., Leal, S., Milne, R., & Bull, R. (2008). Increasing cognitive load to facilitate lie detection: The benefit of recalling an event in reverse order. Law and Human Behavior, 32 (3), 253-265.

WLALA Member Cynthia Cohen specializes in jury research, trial strategies, and settlement decision-making at Verdict Success. Dr. Cohen can be reached at 310-545-7914 or ccohen@verdictsuccess.com.

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