Unfair (55 page)

If you remember, with the Reid technique:
“The Reid Technique,” John E. Reid & Associates, Inc., accessed May 18, 2014,
http://www.reid.com/​educational_info/​critictechnique.html
; “Beyond Good Cop/Bad Cop: A Look at Real-Life Interrogations,” NPR, December 5, 2013,
http://www.npr.org/​2013/12/05/​248968150/beyond-good-cop-bad-cop-a-look-at-real-life-interrogations
.

And to do that:
Fred E. Inbau et al.,
Criminal Interrogation and Confessions
(Burlington, MA: Jones & Bartlett Learning, 2011), 121. According to the Reid technique, by asking
challenging questions, a police officer can elicit different posture, eye contact, facial expressions, and movements of the hands and feet based on whether the suspect is being honest or deceitful. “The Reid Technique,” John E. Reid & Associates, Inc. At the opening of the chapter “Behavior Symptom Analysis,” the Reid technique manual quotes from
Hamlet:
“There is a kind of confession in your looks, which your modesties have not craft enough to color.” Inbau et al.,
Criminal Interrogation
, 101.

So, for example, “a suspect”:
Inbau et al.,
Criminal Interrogation
, 135. While embracing gaze aversion as a relevant cue to lying, the Reid manual does caution that averted gaze can occasionally arise from eye disability, psychological disorders, or cultural differences. Inbau et al.,
Criminal Interrogation
, 135.

Knowing the signs of deceit:
Inbau et al.,
Criminal Interrogation
, 121–134; “Beyond Good Cop/Bad Cop.” Since this training manual, and others like it, cast the notion that these “tells” reveal lying as a general truism, it's no surprise that police officers rely on these cues in a variety of circumstances outside of interviewing suspects, from talking to witnesses at a crime scene to routine traffic stops.

Similarly, in evaluating the believability:
Simon, “Limited Diagnosticity,” 174.

In the Third Circuit, for example:
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§3.04.

Indeed, we have such faith:
Max Minzner, “Detecting Lies Using Demeanor, Bias, and Context,”
Cardozo Law Review
29 (2008): 2559; Simon, “Limited Diagnosticity,” 174. A strong belief in the power of demeanor evidence underlies some of the core structures of our criminal justice system. Simon, “Limited Diagnosticity,” 174. As the Supreme Court explained, the great benefit of the Confrontation Clause requirement that witnesses tesify in person is that it provides the accused with “an opportunity…of compelling [the witness] to stand face to face with the
jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox v. United States, 156 U.S. 237, 242–43 (1895); Donelly v. California, 228 U.S. 243 (1913) (quoted in Minzner, “Detecting Lies,” 2559). Likewise, one of the reasons that appellate courts defer to the factual determinations of the trial court is that appellate judges are not able to observe the testimony offered in a case. Minzner, “Detecting Lies,” 2559. In the Supreme Court's view, only those who are there during the actual trial are in a position to “be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said.” Anderson v. Bessemer City, 470 U.S. 564, 575 (1985) (quoted in Simon, “Limited Diagnosticity,” 174). Vital information is missed when a judge only reads a transcript of what was said.

If a jury watches a defendant:
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§ 3.04; Minzner, “Detecting Lies,” 2559. Even in less dire circumstances, judgments of witness credibility often turn the direction of trials; and these judgments can also have an effect in the weeks and months before a jury is chosen, as police officers conduct investigations to gather the evidence used by prosecutors. Simon, “Limited Diagnosticity,” 174.

The problem is that when:
Bella M. DePaulo et al., “Cues to Deception,”
Psychological Bulletin
129, no. 1 (2003): 90–106; Simon, “Limited Diagnosticity,” 176–77.

The handful that are somewhat predictive:
DePaulo et al., “Cues to Deception,” 92–94; Simon, “Limited Diagnosticity,” 176–77.

Numerous studies have shown, for example:
Lucy Akehurst et al., “Lay Persons' and Police Officers' Beliefs Regarding Deceptive Behavior,”
Applied Cognitive Psychology
10 (1996): 467–68; Simon, “Limited Diagnosticity,” 176 n. 140; Siegfried L. Sporer and Barbara
Schwandt, “Moderators of Nonverbal Indicators of Deception: A Meta-Analytic Synthesis,”
Psychology, Public Policy and Law
13, no. 1 (2007): 1, 19–22; “TSA Should Limit Future Funding for Behavior Detection Activities,” United States Government Accountability Office, November 2013, 17,
http://www.gao.gov/​assets/660/​658923.pdf
; DePaulo et al., “Cues to Deception,” 93–94; Minzner, “Detecting Lies,” 2565.

Even worse, when people are under:
Charles F. Bond, Jr., and Bella M. DePaulo, “Accuracy of Deception Judgments,”
Personality and Social Psychology Review
10, no. 3 (2006): 214, 231; Simon, “Limited Diagnosticity,” 178–79.

Put the affable and handsome:
Maureen O'Sullivan, “The Fundamental Attribution Error in Detecting Deception: The Boy-Who-Cried-Wolf Effect,”
Personality and Social Psychology Bulletin
29, no. 10 (2003): 1316, 1320, 1323–24; Simon, “Limited Diagnosticity,” 180.

Likewise, tell observers that:
Pär Anders Granhag and Leif A. Strömwall, “Effects of Preconceptions on Deception Detection and New Answers to Why Lie-Catchers Often Fail,”
Psychology, Crime and Law
6 (2000): 197–218; Simon, “Limited Diagnosticity,” 180.

Initial evidence suggests:
Karel Kleisner et al., “Trustworthy-Looking Face Meets Brown Eyes,”
PLOS ONE
8, no. 1 (2013): 3–6, doi: 10.1371/journal.pone.0053285; Public Library of Science, “Brown-eyed People Appear More Trustworthy than Blue-eyed People: People Judge Men's Trustworthiness Based on Face Shape, Eye Color,”
ScienceDaily
, January 9, 2013,
http://www.sciencedaily.com/​releases/2013/​01/130109185850.htm
.

According to the researchers:
Kleisner et al., “Trustworthy-Looking Face,” 1, 6; Public Library of Science, “Brown-eyed People.” Another theory is that rounder faces are perceived to be more baby-faced, and those with baby faces are viewed as more honest. Kleisner et al., “Trustworthy-Looking Face,” 1, 3–4.

In a recent analysis of more than:
In the sample, people accurately classified about 60 percent of truths and 48 percent of lies. Bond, Jr., and DePaulo, “Accuracy of Deception Judgments,” 223, 230–31.

And the elements that we:
Bond, Jr., and DePaulo, “Accuracy of Deception Judgments,” 231.

Moreover, the people one might:
Bond, Jr., and DePaulo, “Accuracy of Deception Judgments,” 229. This is not to suggest that there is nothing to be done to improve our ability to detect lying. The most promising avenue, though, may have more to do with changing how we interact with the person we are assessing than in somehow bolstering our own detection skills. In the police investigation context, there is initial evidence, for example, that individuals can improve their deceit judgments by initially collecting more information from a person and then confronting that person with inconsistencies in what they've said, or by making the individual cognitively work harder to respond to questioning (e.g., making a suspect tell his story starting with the last event first). Simon,
In Doubt
, 126–27; Maria Hartwig et al., “Strategic Use of Evidence During Police Interviews: When Training to Detect Deception Works,”
Law and Human Behavior
30 (2006): 614–17; Aldert Vrij et al., “Increasing Cognitive Load to Facilitate Lie Detection: The Benefit of Recalling an Event in Reverse Order,”
Law and Human Behavior
32 (2008): 253, 262–63.

Yet just like my students:
Simon, “Limited Diagnosticity,” 180; Bella M. DePaulo et al., “The Accuracy-Confidence Correlation in the Detection of Deception,”
Personality and Social Psychology Review
1, no. 4 (1997): 346, 351–56.

And, unfortunately, those who are:
Simon, “Limited Diagnosticity,” 180; DePaulo et al., “Accuracy-Confidence Correlation,” 346, 353–56.

Although it would be nice:
Simon, “Limited Diagnosticity,” 179.

First of all, while study participants:
Simon, “Limited Diagnosticity,” 178.

And being unable to attend:
United States v. Watson, 483 F.3d 828, 834–35, (D.C. Cir. 2007). At least one court, however, has invalidated a per se rule excluding blind jurors (although it noted that in some cases exclusion may be appropriate). Galloway v. Superior Court, 816 F.Supp. 12, 18 (D.D.C. 1993).

Ironically, contrary to the assumptions:
For the same reason, appellate judges may have an advantage over trial observers. That is counterintuitive: we generally assume that appellate judges are in a worse position to judge veracity than the fact finders in the trial court because they generally have access only to a trial transcript and, thus, must focus on
what
was said rather than
how
it was said. Simon, “Limited Diagnosticity,” 178. Looking across dozens of studies, however, researchers found that participants who judged deceit purely based on body language performed significantly worse than those who were given only audio or only a written transcript. Bond, Jr., and DePaulo, “Accuracy of Deception Judgments,” 225.

Furthermore, during an actual trial:
Simon, “Limited Diagnosticity,” 179.

Meanwhile, some dishonest witnesses:
Pär Anders Granhag and Leif A. Strömwall, “Repeated Interrogations: Verbal and Non-verbal Cues to Deception,”
Applied Cognitive Psychology
16 (February 2002): 254; Simon, “Limited Diagnosticity,” 179–80.

Finally, it is hard to see:
Simon, “Limited Diagnosticity,” 179.

How is she supposed to:
Simon, “Limited Diagnosticity,” 179. In addition, although it might seem likely that jurors could overcome these challenges by consulting with one another during deliberations, the benefits of group assessments only seem to come in making individuals feel more confident in their observations, with only insignificant improvements in judging
veracity. Mark G. Frank et al., “Individual and Small Group Accuracy in Judging Truthful and Deceptive Communication,”
Group Decision and Negotiations
13, no.1 (January 2004): 53–54; Simon, “Limited Diagnosticity,” 180.

Besides, everyone knows that:
The fact that experts tend to be compensated for preparing and providing their testimony by a particular side is one of the reasons that jurors feel confident in relying on their own intuitions instead: the lack of a monetary incentive, one way or the other, seems to ensure objectivity. Studies show that when experts are unaware of which side of a case has hired them, people view them as more credible and their testimony is more persuasive. Christopher T. Robertson and David V. Yokum, “The Effect of Blinded Experts on Juror Verdicts,”
Journal of Empirical Legal Studies
9, no. 4 (2012): 777–78.

Empirical research also suggests that our skepticism about experts is not unfounded. For instance, when scientists had 108 experienced forensic mental health experts evaluate violent sex offenders, they rated the individuals as at a significantly greater risk of reoffending when they believed that they were being paid as an expert for the prosecution than when they believed they were being paid as an expert for the defense. Daniel C. Murrie et al., “Are Forensic Experts Biased by the Side That Retained Them?”
Psychological Science
24, no. 10 (2013): 1889, 1893–96; Association for Psychological Science, “Forensic Experts May Be Biased by the Side That Retains Them,”
ScienceDaily
, August 28, 2013,
http://www.sciencedaily.com/releases/2013/08/​130828092302.htm?utm_source=feedburner​&utm_medium=email&​utm_campaign=Feed​%3A+sciencedaily​%2Fscience_society%​2Fjustice+%28ScienceDaily%​3A+Science+​%26+Society+News​+–+Justice%29
.

The fact that we expect lying:
As Charles Dickens recorded more than 150 years ago, “Nature never writes a bad hand. Her writing, as it may be read in the human countenance, is
invariably legible, if we come at all trained to the reading of it.” Charles Dickens,
The Works of Charles Dickens
, vol. 36,
The Demeanour of Murderers
(New York: Charles Scribner's Sons, 1908), 111. Just as we continue to expect that we can spot guilt or evil in a person's face—despite the demise of physiognomy—we also maintain a belief that, in the words of the Blue Fairy in Pinocchio, “Lies can be easily recognized.” Don Grubin and Lars Madsen, “Lie Detection and the Polygraph: A Historical Review,”
Journal of Forensic Psychiatry and Psychology
16, no. 2 (June 2005): 357. Yes, in real life, noses don't grow when people fib, but perhaps they twitch, turn cold, or flare at the nostrils.