Grits for Breakfast has an important post about lies and deception, and the fact that we have yet to figure out a way to tell.  While most people believe that they can tell, claiming it’s in the eyes, or the nose or some other bodily orifice, the fact is that people aren’t very good at figuring out if another person is telling the truth.  Grits points out that this is true of cops as well, though they, more than others, believe they know.

The problem is just as Anderson identified: The error rate is high, risking the same mistake committed by Othello when he falsely accused Desdemona. According to the (highly recommended) recent book by Richard Leo, Police Interrogations and American Justice (pp. 98-99):

Numerous controlled studies have shown that people are not good intuitive judges of truth and deception, typically performing at no better than chance levels of accuracy. Controlled studies have also shown that even investigators and other supposed experts who routinely evaluate deceptive behavior are highly prone to error. Moreover, Kassin and Fong have shown that police interrogators and others specifically trained in the [Behavioral Analysis Interview technique taught by John Reid and Associates] not only fail to discriminate accurately between true and false statements much of th time, but also that behavior analysis training actually lowers the ability of police interrogators to discriminate accurately between true and false denials. Further, such training inflates their confidence in their judgments. (citations omitted)

Assuming police can accurately judge lie detection leads directly to false accusations and confessions.

Taking this a step farther, the same is true of jurors and judges, neither of whom is endowed with the gift of being able to tell whether a witness is being truthful or lying.  Yet this is one of the tasks we demand of them, perhaps their most important and difficult task.  So then, why do we do so if the fact is clear that they are no more capable than anyone else?  Because we have no better way.

Trial by jury is one of the basic tenets of our legal system.  We rest enormous faith in it, even to the extent of putting people’s lives at risk based upon the decision of twelve ordinary people.  We hold this methodology to be so sacred, so worthy of our trust, that we are willing to kill people if those twelve people tell us to do so.

But if it turns out that the twelve can’t tell a lie from the truth, as well as suffer from some other infirmities that happen when you put a group together and ask it to make a decision, have we created a sham solution?  By pretending that the jury system is far better, far more accurate, than it really is, we take the responsibility off of our own shoulders to find a better answer and fall back on facile maxims, like “it may not be perfect, but it’s the best system there is.”  Is it?

While the defense often goes to trial without witnesses, since the burden of proof is on the prosecution, we are often told by jurors afterward that the absence of any human being (particularly the defendant) taking the witness stand and telling the jury that he didn’t commit the crime is a glaring omission.  Yes, the jury is instructed that the defendant has no obligation to testify, and that they cannot infer anything from his failure to testify.  As if an instruction from a judge undoes the basic human expectation that an innocent person would deny his guilt.

There are two reasons why defendants don’t testify.  The first is thrust upon the defense, as the defendant’s prior criminal history will be brought into the case and thus inform the jury that he’s prone to commit crimes.  Propensity, of course, is not a permissible reason to raise a defendant’s prior criminal history, so we’ve come up with a bunch of other excuses to let it in, thereby making sure that the jury knows about the defendant’s propensity while pretending that they would never let that affect their decision.

The second reason is that defendants often don’t come off well as witnesses.  They are in unfamiliar surroundings, with rules of engagement that are abnormal.  They aren’t schooled or sufficiently practiced the manner of appearing truthful and deflecting difficult questions.  When they don’t understand a question, or fear that it’s a trick, their eyes may dart toward their lawyer and give the appearance that they are being shifty.  They may hesitate before answering, giving the appearance that they are constructing a lie.  They may appear cocky and unlikeable.  They may not be very good at expressing themselves verbally.  They may get angry, and say things they don’t mean.  There’s a long list of things that defendants may appear to be as witnesses, and few are good for them

But none of these things necessarily has anything to do with whether they are lying or telling the truth.  They relate to our understanding of how jurors perceive people to be lying or telling the truth.  We advise defendants not to testify because we believe that jurors will believe them to be liars, even though they may be 100% truthful. 

I’ve written many times about the arm-squeeze moment, during the cops testimony when the defendant grabs your arm and whispers in your ear, “he’s lying.”  And maybe he is, but the sky doesn’t all and no red lights flash or sirens sound.  Cops lie well.  They are trained to provide persuasive testimony, and to artfully deflect questions that present problems.  They keep their cool and have convenient lapses in memory.  They look demure, dressed nicely in their going-to-court clothing, with their sincere faces turned ever so slightly toward the jury. 

I have no answer to the question of how we are to construct a legal system that can accurately distinguish a lie from the truth.  But I know that we aren’t paying much attention to the problem, and rely instead on our old, trusty jury system, even though we know that jurors are no better than cops, or anyone else, at telling one from the other.  But after all, the system “may not be perfect, but it’s the best there is.”  And isn’t that good enough?