Liar, Liar, You Can’t Tell a Liar

[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.

Borked! Really? (Concluded)

To many, Bork had adopted positions in order to be noticed by the right wing with the goal of being nominated for the Supreme Court. His ambition had long been apparent. A Yale Law School skit well before his nomination said, “Bork would do anything to get on the Court.” As a judge on the Court of Appeals, he gave many speeches to right wing groups leading some to conclude that he was trying to curry favor with the Reagan administration. A speech at Carleton College delighted a brand of conservatives when he said that egalitarianism rejects hierarchies. Such rejection of hierarchy lead to moral relativism and denies the right of society to impose moral standards (unless, of course, those standards include rights for minorities, women, and people engaging in sex). Such moral relativism, Bork maintained, leads to business regulations to redistribute wealth. Instead, Bork said, inequality is, and should be, the natural condition.

The conservative University of Chicago Law School professor Philip Kurland, my teacher who had a deep intellectual influence on me, said what many believed: Bork adopted views that pleased the right to promote himself. Bork certainly led conservatives to believe that he was ready to overturn many despised Court decisions despised by the right. A few months before his nomination he had said that an originalist judge should have no trouble in overruling non-originalist decisions because such precedent “has no legitimacy.” A few years earlier he had said, “I don’t think precedent is all that important.” Again, however, as with other views that now seemed to impede his path to the Supreme Court, he changed. At his confirmation hearing he said that “great respect” must be given to precedent.

Bork’s positions and their changes led many—I am included in this—to believe he was unprincipled. Bork had attracted the attention of conservatives, and had secured his nomination, by criticizing Supreme Court decisions that, he proclaimed, needed to be overturned by a Court that based its decisions on original intent, the only valid method of constitutional interpretation. But at the confirmation hearing, Bork again and again said that many of those decisions were now acceptable as firm precedent, or they now represented his views, or they could be reached by different reasoning. As Senator Patrick Leahy satirically said, Bork often had a “confirmation conversion.”

Another senator asked Bork why he wanted to be on the Supreme Court. Bork replied that he hoped that he could contribute to our constitutional governance, but he also said that he enjoyed the courtroom and the “give and take and the intellectual effort involved.” He continued that “the Supreme Court has the most interesting cases and issues, and I think it would be an intellectual feast just to be there. . . .” Ethan Bronner comments: “Bork’s ‘intellectual feast’ line would live in infamy. . . . The bearded egghead from Yale just wanted to play with ideas. He didn’t understand that beyond those elegant intellectual constructs, the lives of real people hung in the balance.”

A Supreme Court justice should have more than an intellect. A justice should understand society and history, not just constitutional decisions. A justice should have empathy and not just bloodless legal smarts. Time and again in the confirmation process—when he discussed his civil rights, privacy, and free speech positions—he indicated abstract intellectual views that were divorced from the impact his positions would have on everyday Americans.

Bork’s confirmation process brought out things that were unfair, but it also brought out an extensive examination of his views that were relevant in determining whether he should be on the Supreme Court. Bronner summarizes: “Bork answered questions for thirty hours over five days. Inside the hearing room there was posturing, but there was also real intellectual give and take. Bork had the opportunity to lay out his constitutional vision. The dispute over Bork can be summed up as a substantive debate with some slander.”

Rereading Bronner’s Battle for Justice again, I concluded, again, that Bork was not borked. Instead I was reminded of what William Blake said: “The fox condemns the trap, not himself.”


Borked! Really? (continued)

Bork’s civil rights stances concerned many during his 1987 confirmation process. He had not challenged Brown v. Board of Education, but when Congress considered the Civil Rights Act of 1964, Bork wrote a magazine article opining that while segregation was morally wrong, we should not have laws enforcing morality. He stated, “The principle of such legislation is that if I find your behavior ugly by my standards, moral or aesthetic, and if you prove stubborn about adopting my view of the situation, I am justified in having the state coerce you into more righteous paths. This is itself a principle of unsurpassed ugliness.” He used examples of barbers and chiropodists as those who should not be forced by legislation to serve blacks. As Bronner states, “those were codes at the time for the feelings of racists who did not want to have to touch blacks.” Labeling the desegregation of hotels, restaurants, gas stations, grocery stores, and other places open to the public as a principle of unsurpassed ugliness haunted him in the confirmation process.

At the Senate hearings, he said that while he had changed his mind about the Civil Rights Act even earlier, he had announced this change in 1973 at his confirmation hearing for Solicitor General. He said that his original stance was fueled by his concern over the coercion of individuals but had no good answers when asked if he had ever thought that segregation coerced black individuals. It was noticed that he publicly stated his changed mind only when his old views might have stood in the way of getting a position he sought.

Doubts about his sincerity and his civil rights views deepened in an exchange with Senator Arlen Specter at the hearing. Brown v. Board of Education was based on the Equal Protection clause, which applies to the states but not to the District of Columbia. The Supreme Court, shortly after Brown, used due process to hold that segregated schools in the nation’s capital were unconstitutional. When pressed by Specter, Bork said that he could not think of a rationale for Bolling v. Sharpe, the D.C. desegregation decision. At a break that occurred shortly thereafter, Bork’s advisers cautioned that he could not let his answer stand, and when the hearings resumed, he announced although he did not have a rationale for the decision, that “does not mean that I would ever dream of overruling Bolling v. Sharpe.” A calculated change of heart? It looked that way.

To many his civil rights stances seemed as to be abstract positions divorced from the harsh realities of America and its history. Bork’s views of constitutional privacy evoked similar reactions. In a 1971 law review article, Bork denominated himself a strict constructionist and said that only liberties explicitly protected in the Constitution could have constitutional protection. If the Constitution does not address a value, it must be left to the federal and state legislatures. He went on to attack Griswold v. Connecticut, a 1965 Supreme Court decision. Connecticut law forbade the use of contraceptives. That law had not just forbidden them for unmarried couples. No one could use them. It was a crime for a married couple to slip on or slip in a condom or diaphragm. The Supreme Court held this law unconstitutional, and many besides Bork found its reasoning troubling. The Court relied on a right to privacy that is not explicitly stated in the Constitution.

Bork’s criticisms of Griswold, however, went beyond what others had said. In what was an awkward analogy (to put it generously), he found identical a couple’s desire to use banned contraceptives and a company’s wish to defy a smoke pollution law. He wrote, “There is no principled way to decide that one man’s gratification is more worthy than another.” He went on to mock the Fourteenth Amendment’s Equal Protection clause by stating that the Court had created the “Equal Gratification” clause. (His analogy was remarkably bad. When a company pollutes, others must deal with the dirt and health effects of what is spewed into the air. Pollution is not a private affair. There are not similar external consequences when I hurriedly pull on a ribbed-for-pleasure Trojan.)

Bork’s view on privacy also appeared inconsistent with some of his other beliefs. Protected liberty, Bork maintained, was limited to what was enunciated in the Constitution, and that category could not be constitutionally expanded. He felt that individual liberties impeded the liberty of the majority. If I have a constitutional right to read pornography, the right of the majority to determine the community it wants is denied. But, of course, just as the Constitution does not explicitly give me a right to dirty movies, it does not explicitly give a right to the majority to ban them. Either right is an expansion from what is in the Constitution. Why one expansion and not the other? Bork was unclear of his choice of one over the other.

Bork was also asked about another inconsistency. The Constitution’s framers sought an executive with limited powers. Bork, however, claimed that the executive power was not static but was meant to evolve. Certainly, the Constitution does not explicitly grant evolutionary powers to the executive. So, of course, Bork was asked if executive power was not static and could evolve, why can’t liberty and other parts of the Constitution also evolve? Bork had no cogent answer. For many, Bork’s determination of what could grow and evolve was not based on any real constitutional principle. Instead, it was driven by a slightly disguised authoritarian agenda.

Bork’s privacy analyses took on some rather ridiculous solutions. If the community outlawed contraceptives, Bork maintained, the objector could move to another state as if this were as easy as going to the corner drugstore to get a cigar. When the Ku Klux Klan controlled Oregon in the early twentieth century (do schools in Eugene and Portland teach this history?), the state prohibited private education because it did not want Catholic schools. Moreover, due to differing prejudices, states had prohibited the teaching of certain foreign languages. The Supreme Court struck down these laws using a privacy analysis. For Bork, however, all those Oregonians who wanted a parochial education should have left the state and Nebraskans could move to get German classes.

But, again, Bork waffled. Although he had frequently attacked Griswold in uncertain terms, in the Senate hearing he became mealy-mouthed. He said that while the right-to-privacy rationale of Griswold failed, perhaps there was a more constitutional way to reach its result. He had never before suggested that.

Bork’s free speech views may have gotten even more attention than his civil rights and privacy positions. He had contended that only political speech was protected by the First Amendment. Artistic or personal speech could be regulated. This standard brought on many questions. For example, it is often hard to determine what is political speech. Was Upton Sinclair’s novel The Jungle about the meat industry political? If the cattle industry in Texas had controlled the legislature could that state have validly banned the book? And if nonpolitical speech is not protected, art books containing photographs of Michelangelo’s David could be banned if they offended officials’ sensibilities.

Furthermore, Bork maintained that the First Amendment did not protect all political speech. Speech advocating the government’s overthrow or advocating the violation any law could be suppressed. Bork was asked: Doesn’t this mean that Dr. Martin Luther King’s advocacy of violating segregation laws could be suppressed or even made criminal? Bork’s answer, according to his previously stated opinion, should have been “yes,” but again there was waffling. He now said that King’s speech was protected because King was testing the constitutionality of the segregation laws and because those laws were later found to be unconstitutional. This “new” position meant that King’s urgings would get First Amendment protection if they were not meant to provoke a constitutional test but not if were only aimed at getting a legislature to change the laws. And as Senator Patrick Leahy pointed out, Bork’s new position failed as a sensible legal standard—how could a person know in advance whether speech was protected if it took a later finding of a law’s unconstitutionality for protection?

Bork changed his position at the confirmation hearing on equal protection, too. Before his confirmation hearing, he had maintained that the original intent of the Equal Protection clause meant it only applied to race. It definitely did not apply to women, but now he enunciated a “reasonable basis” test for gender discrimination, a position he had never before mentioned. All these changes raised concerns about his intellectual integrity.

(Concluded on September 10)



Borked! Really? (continued)

The conservative lament that Robert Bork was treated unfairly in his nomination to the Supreme does have some validity. Liberals did launch an intensive campaign against the nomination. This campaign may have seemed unprecedented to some, but it did have seeds in previous nominations. It was not unusual before the twentieth century for the Senate to reject Supreme Court nominees. A nominee was turned down as early as 1797, and one in four nominees was rejected in the nineteenth century.

In the first half of the twentieth century unsuccessful campaigns were mounted against nominees Louis Brandeis and Thurgood Marshall. On the other hand, the 1930 opposition to John J. Parker portraying him as a racist and anti-union was successful. However, the reaction to these nominees did not produce the frenzy that would later be seen with Bork. Nevertheless, that frenzy had roots going back to President Johnson’s nomination of Abe Fortas, then an Associate Justice of the Supreme Court, to Chief Justice. There were legitimate issues about Fortas, but the opposition went beyond them. Bronner, after discussing the Fortas controversy, concludes that it was “plagued by partisan politics, ideology, character concerns, and closeness to LBJ.” As partisans often do, some looked for the opportunity to respond, and that came with President Nixon’s nomination of Clement Haynsworth to the Supreme Court. (You can look him up, and G. Harrold Carswell, too.)

The Bork nomination, then, was not the only time partisanship took the stage with a Supreme Court nomination. But the Bork controversy was unprecedented in the media campaign mounted against him. Press and TV ads were not used against other nominees as they were against Bork, and as we see in political advertising today, much that was said so grossly oversimplified Bork’s views that the content was unfair.

Such attacks, however, did not start in the media, but with Senator Ted Kennedy, who on the Senate floor, said, “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”

The conservative outrage over this attack increased with an ad by the People for the American Way featuring Gregory Peck. A family gazed at the slogan “Equal Justice Under Law” chiseled on the Supreme Court building while Peck on the sound track, as Bronner summarizes it, “accused Bork of opposing civil rights, privacy, and much free speech protection.” Peck continued, “Robert Bork could have the last word on your rights as citizens, but the Senate has the last word on him. Please urge your senators to vote against the Bork nomination, because if Robert Bork wins a seat on the Supreme Court, it will be for life—his life and yours.”

The ad may have been powerful, but it was aired little and probably would have drawn minimal attention. Then a White House spokesman attacked it, and the ad got widespread notice as it was played again and again on news programs, which brought more examination of Bork’s positions. Many came to think that the ad was not really unfair, for Bork had opposed civil rights laws and Supreme Court privacy decisions, and he had announced a position that would drastically limit free speech.

The borked view of history fixates on Kennedy’s speech and sees only partisanship. It cites the Gregory Peck ad and sees simplistic, inflammatory summaries of what Bork believed. It dwells on irrelevancies that come up, such as discussion of his beard and what movies he had rented. But that history ignores Bork’s actual views and how they were explored at some depth by many noted lawyers and scholars before the confirmation vote and at the five days of the Senate hearing, which was akin to a constitutional law seminar exploring Bork’s views. The confirmation process, in fact, was filled with substance. It provided good reasons why Robert Bork should not have been on the Supreme Court.

(Continued on September 7)