I've spent the better part of the past decade studying deception. It is a critical area of study for the lawyer who makes their living cross-examining witnesses. There is extensive literature on both verbal and non-verbal deception. For a service member accused of crimes, you want a lawyer skillful at detecting deception.
One of the most influential books for me is "Detecting Lies and Deceit - the Psychology of Lying and the Implications for Professional Practice" by Aldert Vrij. The lessons from that book have served me well as a trial lawyer. Here are some of my takeaways from that book.
In terms of detecting deception, you need to understand a couple of key principles:
1: Human beings are poor at detecting deception. This is a key point because military members on juries tend to believe that they are good at detecting deception. They have a high level of confidence in their ability to detect deceit. They can be prone to making quick judgments.
The truth and data show they are not good at detecting deceit. For that reason, we have to be very skillful at explaining deception and motives to lie. Studies of police officers show that they detect lies about 57% of the time. Even professionals are poor at detecting deceit.
2: Human beings are good at lying. And they lie frequently. It is estimated that people lie once in every 10 social interactions. Those lies are detected about 18% of the time.
3: Lying is an intentional act.
4: There are three ways to detect a lie. (A) Observing verbal behavior (B) Analyzing speech content and (C) Measuring physiological responses (blood pressure, heart rate, etc).
5: People lie for several broad reasons:
A: To protect themselves from embarrassment or disapproval;
B: To gain an advantage;
C: To avoid punishment (This is an important one for cases involving children. They tend to tell lies to avoid punishment);
D: For another person's benefit; and,
E: For the sake of social relationships.
6: When cross-examining and interviewing witnesses, we're looking for outright lies, exaggerations, and subtle lies. We want to be able to point out these distinctions to panel members.
7: A lie is easier to tell when the speaker has an opportunity to prepare the lie. This is another key lesson for court-martial practice. We want to illustrate to the jury - every opportunity that we get - that the government's witnesses had an opportunity to prepare their lie.
8: We want to observe the liar's personality traits as best we can. Some liars have manipulative personality traits. They do not lie if they are likely to get caught. They can be dominating in their conversation patterns. They may seem relaxed and confident. Some people are sociable or good actors. They are talented at regulating their physical appearance when lying. Other people are adapters. They have a way of trying to make a positive impression on others.
9: We want to pay careful attention to nonverbal behaviors and micro-expressions. This is difficult to do in a trial setting. However, it is immensely valuable when we can point witness micro-expressions out to the jury. There are automatic links between emotions and lying. People sometimes contort their faces in particular ways that we will discuss in Part IV.
10: We want to be aware of the mental processes that the liar is experiencing during the deception. They may be feeling guilt, fear, or excitement.
11: When the lie is complex or the liar is taken by surprise, there may be slower or faster rate of speech, speech errors, changes in pitch, sentence repetition, delays in answering, and gaze aversion to avoid distraction. They may also be very self-conscious about their behaviors and over-regulate their posture and nonverbal presentation. We're looking for shifting movements.
12: Liars in the military are not always taken by surprise. The lie is prepared. In those cases, we may be looking for a faster speech pattern and fewer speech errors.
13: In a court-martial setting, one of the best approaches - in my opinion - is in analyzing the content of the speech. This is a skill that I have really practiced over time. Here are some of the aspects of speech that I am paying close attention to:
A. Negative speech indicating aversion towards people. Things like disparaging statements;
B. Plausible answers. The truth usually makes sense.
C. Irrelevant content. We pay careful attention to people who provide irrelevant information.
D. Overgeneralized statements. Words like always and never. Military members have a tendency to abuse generalized statements.
F. Unusually direct answers.
G. Response length.
These are not all indicators of deception. These are simply aspects of speech that we are paying careful attention to.
14: The details of the offense are critical to analyze. If the details of the offense seem implausible, we want to understand why. People who lie often do not have enough information available to present a coherent story. Sometimes they want to avoid details so they do not later forget them. Often a chronological account is easier to tell than an unstructured account.
15: When I read a victim or client statement from law enforcement, I have a validity checklist:
-Inappropriate language or knowledge
-Susceptibility to suggestion - discussed more in our upcoming blog on false confessions
-Overall thoroughness of the interview
-Motives to lie
-Context of the original report
-Pressure to report
-Inconsistencies with other witnesses and evidence
Often, it is helpful to analyze other aspects of speech. An older book titled "Mannerisms of Speech and Gestures in Everyday Life" by Dr. Sandor Feldman takes a more Freudian approach to analyzing speech. Some of this analysis is helpful to the trial lawyer. Dr. Feldman analyzed common expressions.
For instance, when a person says "by the way", Dr. Feldman theorizes that the speaker is attempting to make the information appear unimportant. Or they are trying to appear as though the remembered the information incidentally.
"Needless to say" can signify ambivalence. A sentence that begins with "honestly" suggests the person is not always honest.
There is rarely a good reason for a person to say "I don't care." It's a common answer when a victim is asked about their opinion on the outcome of a case.
The phrase "of course" can be a clue to possible deception. Imagine a woman who asks her husband if he still loves her. He says, "of course." A simple yes would be more appropriate. The "of course" tells the truth in a veiled way. He loves her, but not like before. When a court-martial witness uses the phrase "of course", I usually want to delve deeper into why they said that.
Words like "only" and "just" can sometimes mask guilt or responsibility.
Those are just a few examples.
The bottom line is that it takes years of experience interviewing hundreds - maybe thousands - of people to become skilled at cross-examination. It requires us to be present in the moment, to know the evidence better than the witness, and to have good judgment in knowing what to ask and what not to ask.
In the next section, we'll discuss non-verbal cues and micro-expressions.