Do mask-wearing witnesses deprive criminal defendants of their right of Confrontation? Does impairing the ability of jurors and lawyers to fully assess ‘demeanor’ result in less reliable trials? Can jury selection be fair of prospective jurors’ faces are covered? Or is this all a Shakespearean “much ado about nothing” because we – the great majority of lawyers and judges – can’t detect deception with any degree of reliability and often no better than chance?
To answer this we first need to distinguish between demeanor as a general ‘early warning system,’ a tool for discerning that a particular question has hit the witness or prospective juror emotionally and thus warrants some follow-up; and the more discrete claim that facial gestures and responses can reveal deception. Rarely does that distinction come through in the law; and rarer still are the lawyers who grasp the difference.
Historically, with no basis in science, it was believed that seeing the speaker was and is critical to judging veracity. 125 years ago, the Court explained that it is essential that “the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox v. United States, 156 U.S. 237, 242-243 U.S. 1895).
That view persisted in the canons on Evidence.
Wigmore notes that, in addition to cross-examination — “the essential purpose of confrontation” — there is a “secondary and dispensable element [of the right:] . . . the presence of the witness before the tribunal so that his demeanor while testifying may furnish such evidence of his credibility as can be gathered therefrom. . . . [This principle] is satisfied if the witness, throughout the material part of his testimony, is before the tribunal where his demeanor can be adequately observed.”
Coy v. Iowa, 487 U.S. 1012, 1029 (U.S. 1988)(dissenting opinion).
Jurors are so instructed. Typical is the Third Circuit instruction on judging credibility, which tells jurors to
“decide whether to believe a witness based on his or her behavior and manner of testifying, the explanations the witness gave, and all the other evidence in the case, just as you would in any important matter where you are trying to decide if a person is truthful, straightforward, and accurate in his or her recollection…
In deciding what to believe, you may consider a number of factors:
(3) The witness’ appearance, behavior, and manner while testifying;
Yet examining a witness’ face is not the legal essential it appears to be, a point made first by those cases that approve the seating of blind jurors. As one court explained, “[w]ith respect to the prospective juror challenged as visually impaired, although we recognize that sight is a factor in testing the credibility of a witness we reject the defendant’s contention that the juror would be unable to properly evaluate the credibility of the witnesses.” People v. Pagan, 191 A.D.2d 651, 651, 595 N.Y.S.2d 486, 487, 1993 N.Y. App. Div. LEXIS 2652, *3 (N.Y. App. Div. 2d Dep’t March 22, 1993).
And what of science? Myths about detecting lies persist. As one 2017 article in Psychology Today professed
we can be aware of certain behaviors and characteristics that tell us that others may be lying, such as:
- Changes in vocal pitch.
- Unusual blinking or fidgeting
- The use of fewer first-person words such as “I.”
- A decreased tendency to use emotional words, such as hurt or angry.
- Difficulty making eye contact when speaking, or shifty eyes.
- The use of self-soothing techniques such as ear tugging, neck touching, collar pulling, or mouth covering.
- Inconsistent gestures or facial expressions that contrast with message content.
Raab, 7 Signs That Someone’s Lying to You (June 2017), https://www.psychologytoday.com/us/blog/the-empowerment-diary/201706/7-signs-someones-lying-you (last visited July 14, 2020). Raab offers no citation/sourcing for this list.
That absence of supporting authority should not be surprising. As reported in 2018, a review of research studies showed that “people can distinguish a lie from the truth about 54 percent of the time, just slightly better than if they had guessed.” Schaarschmidt, The Art of Lying, Scientific American (July 11, 2018) https://www.scientificamerican.com/article/the-art-of-lying/ (last visited July 14, 2020).
Why? As one article explains
In the courtroom, stereotypes can be hazardous for lawyers and their clients. Some common myths about nonverbal behavior produce misleading clues and lead juries to think witnesses are lying when they’re not. These clues include avoiding eye contact and movements such as scratching, picking, crossing one’s arms, or tapping the foot. Most people believe lack of eye contact or shifting eyes is a clue to deceit. It is unreliable.
Cynthia Cohen, Demeanor, Deception and Credibility in Witnesses (ABA presentation 2013) http://pgil.pk/wp-content/uploads/2014/04/33_demeanor_deception.authcheckdam.pdf (last visited July 18, 2020).
Joe Navarro, a former FBI agent in the Bureau’s Behavioral Analysis Program, wrote in 2018 that “we need to stop associating behaviors indicative of psychological discomfort with deception and acknowledge them purely for what they are: signs of stress, anxiety, apprehension, despair, suspicion, tension, concern, nervousness, etc., but not deception.” Navarro, The End of Detecting Deception, Psychology Today (July 2018) https://www.psychologytoday.com/us/blog/spycatcher/201807/the-end-detecting-deception (last visited July 18, 2020).
One of the principal researches on lying and deception is Professor Paul Ekman. In the2001 edition of his book TELLING LIES (Norton 2001) he explains that while it might be possible to detect deception by spending hours studying a speaker’s facial movements, “people who view the videotapes just once [in the experiment where ground truth is known]…do little better than chance in identifying who is lying or telling the truth.” TELLING LIES, 331.
Ekman does promote trainings in discerning and understanding “micro-expressions,” expressions that flit across the face and disappear within a fraction of a second. He maintains that these fleeting signs may show “two messages- what the liar wants to show and what the liar wants to conceal.” https://www.paulekman.com/deception/deception-detection/ (last visited July 18, 2020). Yet even with the study of micro-expressions he is cautious, noting the need to have a baseline of the person’s emotions to know when there is a deviation; “a single micro expression or flash of leakage does not offer conclusive proof of lying[;]” and “it is impossible for anyone to perfect the art of lie detection. Instead, he advocates that with more skills and data we can make determinations with greater certainty, though it’s important to remember that we can never know with 100% accuracy whether or not someone is lying.” Id.
If masks impede anything, it is in catching reactions – a juror’s grimace or smile may reveal that a specific item of proof or argument landed well, poorly or otherwise raises concerns. One approach might be to provide clear face shields or transparent face masks for jurors; but again that is not to detect deception but to ‘take the juror’s temperature.’
So what does this mean if witnesses or prospective jurors are masked? While there may be support in the law for a challenge to the practice, particularly in criminal cases, there is little science to back it up. And some research suggests that having faces covered might increase deception detection.
In her new and important article Unmasking Demeanor (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3610460&download=yes , Professor Julia Simon-Kerr debunks the demeanor-as-deception-tool argument and demonstrates how it is racially and culturally normed and biased. She then reports on the 2016 experiments detailed in Leach et al, Less is more? Detecting lies in veiled witnesses. Law and Human Behavior, 40(4), 401–410 (2016). The study showed that “participants were more accurate when witnesses wore niqabs than when witnesses did not wear veils; observers were more accurate at detecting deception in witnesses who wore niqabs or hijabs than those who did not veil. Discrimination between lie- and truth-tellers was no better than guessing in the latter group, replicating previous finding.” Id., at 407. Recognition of this research may also have the salutary purpose of confirming the right of Muslim women to testify veiled – by realizing that the veil does not inhibit a fair determination of credibility, it permits a class of witnesses to testify in religious garb that leaves them more comfortable rather than unveiled and as a result ill-at-ease, a condition that might make the witnesses appear to be deceptive when they are not.
Simon-Kerr concludes with this observation: “mask(s)…may direct our attention to the more tangible and demonstrably useful factual information on offer at a trial or hearing.” Unmasking Demeanor, 18. Public health and the ‘search for the truth’ are not incompatible.