In
Part I
of this blog series, I posted some data from the Department of Justice
on false allegations. In Part II, I'll discuss the literature on detecting
lies. In Part III, we talk about nonverbal deception and facial expressions.
In Part IV, I'll talk about false confessions.
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.
E. Self-references.
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:
Psychological characteristics
-Inappropriate language or knowledge
-Inappropriate affect
-Susceptibility to suggestion - discussed more in our upcoming blog on
false confessions
Interview characteristics
-Leading questioning
-Overall thoroughness of the interview
Motivations
-Motives to lie
-Context of the original report
-Pressure to report
Investigation
-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.
