{"id":2762,"date":"2020-09-28T15:49:33","date_gmt":"2020-09-28T19:49:33","guid":{"rendered":"https:\/\/www2.law.temple.edu\/aer\/?p=2762"},"modified":"2021-12-16T14:56:56","modified_gmt":"2021-12-16T14:56:56","slug":"masks-demeanor-and-deception","status":"publish","type":"post","link":"https:\/\/law.temple.edu\/aer\/2020\/09\/28\/masks-demeanor-and-deception\/","title":{"rendered":"Masks, Demeanor and Deception"},"content":{"rendered":"

Do mask-wearing witnesses deprive criminal defendants of their right of Confrontation?\u00a0 Does impairing the ability of jurors and lawyers to fully assess \u2018demeanor\u2019 result in less reliable trials?\u00a0 Can jury selection be fair of prospective jurors\u2019 faces are covered? \u00a0\u00a0Or is this all a Shakespearean \u201cmuch ado about nothing\u201d because we \u2013 the great majority of lawyers and judges \u2013 can\u2019t detect deception with any degree of reliability and often no better than chance?<\/p>\n

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To answer this we first need to distinguish between demeanor as a general \u2018early warning system,\u2019 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.<\/p>\n

Historically, with no basis in science, it was believed that seeing the speaker was and is critical to judging veracity.\u00a0 125 years ago, the Court explained that it is essential that \u201cthe 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.\u201d\u00a0 Mattox v. United States, 156 U.S. 237, 242-243 U.S. 1895).<\/p>\n

That view persisted in the canons on Evidence.<\/p>\n

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<\/strong> while testifying may furnish such evidence of his credibility as can be gathered therefrom. . . . [This principle] is satisfied if the witness<\/em>, throughout the material part of his testimony, is before the tribunal<\/em> where his demeanor can be adequately observed.”<\/p>\n

Coy v. Iowa, 487 U.S. 1012, 1029 (U.S.\u00a0 1988)(dissenting opinion).<\/p>\n

Jurors are so instructed.\u00a0 Typical is the Third Circuit instruction on judging credibility, which tells jurors to<\/p>\n

\u201cdecide 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\u2026<\/p>\n

In deciding what to believe, you may consider a number of factors:<\/p>\n

\u2026<\/p>\n

(3) The witness\u2019 appearance, behavior, and manner while testifying;<\/p>\n

Yet examining a witness\u2019 face is not the legal essential it appears to be, a point made first by those cases that approve the seating of blind jurors.\u00a0 As one court explained, \u201c[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.\u201d\u00a0 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).<\/p>\n

And what of science?\u00a0 Myths about detecting lies persist.\u00a0 As one 2017 article in Psychology Today professed<\/p>\n

we can be aware of certain behaviors and characteristics that tell us that others may be lying, such as:<\/p>\n