This is the second 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.
Deception. Lies succeed or fail in the courtroom because of the liar’s emotions and motivations and the lie detector’s ability to detect lies. The ability to detect lies is a learnable skill. This skill and knowledge helps understand when and why lies succeed or fail. Knowing common myths about lying behavior helps your case as well. Sometimes a truthful person is disbelieved. Nervousness or sweating occurs for many reasons. Awareness of the myths is important for witness preparation.
Can You Detect Deception? “Liar, Liar, Your pants are on fire!” children often shout as if lying created effects that were immediately obvious to the onlooker. As we grow older, we rely on more subtle signs in deciding whether to trust someone. We refer to people as “shifty eyed” or imagine someone has an “honest face.” Often, we are convinced we can judge others’ characters on the basis of how they look and behave. Despite what we believe, however, reliance on this kind of common sense often leads to errors. In conducting litigation, it can cost you the case.
As a litigator, can you detect a liar? Researchers have sought to identify which people are likely to recognize a liar when they meet one. Ekman and Friesen’s 1969 theoretical statement about cues to deception explores leakage and deception cues.[i] Ekman’s classic research[ii] on whether individuals could identify who is lying, used nurses to lie or to be truthful about scenes that are pleasant to watch. The nurses in training were asked to describe this beautiful scene at the beach in both conditions. They were either watching a bloody surgery or truly looking at beaches.
When members of the Secret Service, FBI, CIA, federal polygraphers, police, psychiatrists, psychologists, judges and attorneys were tested, the results were unsettling. Psychiatrists and psychologists did no better than chance. Interestingly, judges and psychiatrists rated their ability to detect lies lower than the Secret Service members, federal polygraphers, and the police. Secret Service members were better at detecting liars than members of the FBI and CIA. Secret Service officers on the streets are constantly vigilant for any changes in behavior and constantly scanning the environment. [Of course this classic research was done years before the April 2012 Secret Service scandal in Columbia.] Those who were accurate varied clues for every person that they saw. Those who were not accurate didn’t vary their clues. Instead, they relied on fidgeting and speech content. Success occurred because they were not looking for the Holy Grail, nor a belief that there is one indicator for lying behavior. There are however key indicators for physiological expressions of emotions and determining deception. On the whole, those who were good at recognizing emotions were more accurate in judging who was lying. Although most people are not better than chance in detecting deception, some groups of police professionals have demonstrated significant lie detection accuracy.[iii] This improvement in ability could be from specific training in detection.
Who Lies? Indeed, studies on deception (Ekman’s research) show that few of us are good judges of character in the absence of experience because the way people look and behave seldom reveals their true motivations. Some people lie more successfully than others. Good liars, like professional actors, have the ability to become the role they are playing. They do not believe they are lying; they believe the events they describe are actually happening. Pathological liars, on the other hand, cannot choose to be truthful. They know they are lying, but cannot stop themselves. They fool people sometimes – usually in brief encounters. These brief encounters may be a clerk at a store, or in a dating situation at a bar or online. People tend to lie a lot for sport. Whether an individual lies under oath depends on whether he or she has gotten away with lying in the past.
Pathological liars and natural performers. Pathological liars cannot choose to be truthful. They know they are lying, but can’t stop. They fool some people. Some people within their circles know they are constantly lying. You may have an ex-brother-in-law of this type. Natural performers, like actors, are very convincing. Professional actors are like very good poker players. They have a gift to become the role they are playing. They believe they are not lying. Most lies are not lies about emotions. Feelings about lying betray the liar. For example President Nixon’s sweating on camera.
Emotion. Being able to detect emotion in witnesses is equally important and effective for determining credibility or lying behavior. Can you recognize each of the different types of emotion in witnesses (i.e., anger, contempt, disgust, happy, sad, surprise, fear, and guilt)? Here is how emotions give clues to deception.
Fear. In a trial, jurors have role expectations for witnesses. Sometimes you have an armchair psychologist in the jury box trying to decide why a witness would feel a certain way? By understanding the emotions that liars are experiencing, one can sometimes recognize the deception cues in masking emotions. Ekman illustrates that it is possible to predict behaviors that distinguish liars from truth tellers, especially when the liar is apprehensive about being caught. For example, the cues indicative of detection apprehension are fear cues. These include higher pitch, faster and louder speech, pauses, speech errors, and indirect speech. The greater the liars’ detection apprehension, the more evident these fear cues should be. Liars should appear more fearful as the stakes become higher and the anticipated probability of success becomes lower.
Fear interplays with lying behavior in a number of ways: 1) Fear of being caught lying. Not everyone is afraid of being caught. The higher the stakes increases fear of punishment in being caught; 2) Past experience plays a part. The more times a liar has gotten away with a lie and succeeded, then fear dissipates for the liar; 3) How well can the target detect the lie? If you have a trained polygrapher, then the liar’s fear would increase; and 4) Would a truthful person be afraid? What are the consequences of not being believed? Is there a gang member seeking revenge if the witness speaks the truth?
Guilt. Not everyone feels guilty about engaging in a lie. What are the shared values? If someone feels guilt about lying or there is a moral issue, the first time that person tells the lie is the easiest time to catch micro expressions. Emotions are often briefly revealed through leakage. The tenth time that they tell the lie, liars tend to believe it themselves. There are noticeable changes in face and body. A lie catcher must look at the situation and determine if there is a compelling reason for one to feel guilty.
Contempt. Anita Hill was in the hot seat at the Clarence Thomas Senate Hearings. She was somewhat a reluctant witness confronted with details about her accusations of sexual harassment while working with Clarence Thomas at the EEOC. When asked to recall incidents about that time period, she had micro expressions indicating contempt (her eyebrow being raised). The leakage occurred the first time she was asked by then Senator Joe Biden about the Coke can. When further asked about pornography, her slow eyelid movements illustrate her emotion in recalling the negative events.
Sadness. Susan Smith drove her babies into the lake. When interviewed on television she cried crocodile tears. She had planned to commit suicide by driving into the lake with her babies. However she stopped short. For nine days before her confession, her story had police searching for a Black carjacker. Sheriff Wells found many inconsistencies in her story and when confronted, she confessed. Her crocodile tears at a press conference were a dead give away before the confession. Many of us know what sadness and real tears look like. Sadness engages more facial muscles.
Duping Delight. People who enjoy lying as an art, enjoy the thrill or excitement to win. Ekman calls this Duping Delight. Liars see the challenge in fooling the other person. The reputation of the person being lied to is important. It is not much fun putting something over on a dummy. Like Frank Abagnale, Jr. in the movie Catch Me if You Can, liars get a bigger thrill lying to someone smart like the FBI.
Misconceptions about Deceit. In the courtroom, stereotypes can be hazardous for lawyers and their clients. Some common myths about nonverbal behavior produce misleading clues and lead juries to think witnesses are lying when they’re not. These clues include avoiding eye contact and movements such as scratching, picking, crossing one’s arms, or tapping the foot. Most people believe lack of eye contact or shifting eyes is a clue to deceit. It is unreliable. Fidgeting such as foot tapping is often confused as a sign of lying. It is best to understand the person’s baseline to define the behaviors and mannerisms. Is tapping the foot part of the person’s usual repertoire? During the person’s usual conversations, does the person have a pattern or rhythm of looking at someone and looking away? What if they break that rhythm? Shifting eyes can be useful if linked to other signs.
Jurors seldom understand body language that is culturally different from their own. Eye contact is a learned behavior and there are cultural differences. Looking away often occurs when someone is carefully constructing an answer. It is not a sign of lying. Umms, ahhs, inarticulate words used to fill pauses are not signs of lying – they are signs of thinking.
Misconceptions or Myths about Lying
- Crossing arms
- Lack eye contact, looking away, shifting eyes
- Movement (fidgeting, scratching, picking hands, tapping foot)
- Nose is growing
- Sweating or nervousness
- Ums, ahhs – filling pauses
Next column I’ll talk more about training in detecting deception.
[i] Ekman, P.E., & Friesen, W.V. (1969). Nonverbal leakage and clues to deception. Psychiatry, 32, 88-106.
[ii] Ekman, P.E. & O’Sullivan, M. (1991). Who can catch a liar? American Psychologist, 46 (9), 913-920.
[iii] O’Sullivan, M., Frank, M.G., Hurley, C. M., Tiwana, J. (2009). Police lie detection accuracy: The effect of lie scenario. Law and Human Behavior, 33 (6), 530-538.