[This post is drawn from The American Jury System by Randolph N. Jonakait]
She said. He denied. Many people heard the testimonies. Many decided that one or the other was lying without thinking much about how they reached their conclusions. Most of us filtered what we saw and heard through existing beliefs, biases, and prejudices and that, of course, affected our credibility assessments of Dr. Ford and Judge Kavanaugh. However,many, maybe most of us, feel we are good at spotting liars from subtle cues—awkward posture, a bead of sweat on the upper lip, hesitations in speech, the tone of voice, the movement of hands, the shifting of eyes. If that is what most of us feel, most of us are wrong.
Studies of the determination of lies from nonverbal behavior have found that people correctly spot a lie from 54 to 57 percent of the time, barely above the random guessing level of 50 percent. We are not good at this, and I was not surprised to hear the conclusions drawn that Kavanaugh’s evident anger indicated he was lying and also that Kavanaugh’s anger meant he was telling the truth.
One reason that liars are not easily detected by nonverbal behavior is that most people are proficient liars. This is in part because we get so much practice. One study had participants keep a diary for a week of conversations that lasted for at least ten minutes and record the lies they told during these exchanges. The study revealed “that lying is a daily event. On average, people lied almost twice a day or in one quarter of the ten-minute interactions. Of all the people they interacted with during the week, they lied to 34%.” Perhaps because people lie so often “there is no typical non-verbal behavior which is associated with deception. That is, not all liars show the same behavior in the same situation, and behaviors will differ across deceptive situations. . . . The complicated relationship between non-verbal behavior and deception makes it very difficult or even impossible to draw firm conclusions about deception solely on the basis of someone’s behavior.” The problems of correctly detecting deception are compounded by the fact that lying is easier and consequently harder to detect when the liar has had time to plan the lie—like for testimony at a congressional hearing.
The lack of ability to detect lies extends across the board. It is not correlated with gender or age. Men are not more skilled than women; older people are not superior to younger ones. A person’s confidence in being able to spot liars does not correlate with the ability to do so. Lie detecting ability does not correlate with experience in interviewing or with professions involving the detecting of deception. A summary of studies involving federal law enforcement personnel, federal polygraphers, and police found that most fell in the range of 45 to 60 percent accuracy in lie detection, with an average accuracy rate of 54 percent. In other words, they do no better than the rest of us in detecting lies from nonverbal behavior. The major difference is that the police are, unjustifiably, more confident than the general public in their assessments.
Trial judges, who often must assess the credibility of witnesses, are no different. Studies have shown that judges are like “ordinary” people in this regard. A research summary states, “Trial court judges . . . demonstrated little more skill at picking out prevaricators than a pipe fitter or a bus driver pulled from the street.”
One of the reasons we are not good lie-catchers is our frequent failure to receive feedback that facilitates learning. A leading researcher maintains that people fail to obtain “adequate information as to whether their truth/lie judgments are either right or wrong.” If we don’t learn whether our assessments are correct, we have no way to improve our lie-detecting performance.
Just watching and listening to testimony is not a good way to determine what is truthful. If we want the truth, we need more than our gut instincts about who has testified truthfully. If a child is thought to have had cookies before dinner, a parent really wanting the facts does more than listen to the kid. The parent peers into the cookie jar to see if anything is missing and looks for tell-tale signs of melted chocolate chips. If a plane crashes, investigators seeking the causes go to the crash site to inspect; they question witnesses; they seek out and examine cockpit and control tower voice and data recorders; and so on. You want the truth, collect information. Investigate. Ask more questions based on the gained knowledge.
Think about the great movie, My Cousin Vinny. The witnesses have painted a stark picture of the two youts’ guilt, but finally, Vinny investigates. He learns of dirty windows and obscuring trees and bushes and now can ask informed questions casting doubt on what witnesses were positive about. He learns about cooking times of real and instant grits and establishes that the time frame presented by a witness cannot be correct. Vinny only becomes a lawyer when he learns that meaningful questions that might lead to the truth can only happen after investigation.
If you want the truth about the event, don’t just judge what she said and he denied. Collect all the information you can about the event. Then it is time to ask informed questions based upon what has been learned. Use common sense and your life’s experiences about how people behave, but also listen to what others have learned about behaviors, such as of sexual assault victims and teenage drinkers. Now examine all the pieces of information to see how they do or don’t fit together. Is one version of the event more coherent, consistent, plausible, and complete than another? Only then is it time to judge.
Ask Cousin Vinny. If you want truth, first have a thorough investigation.