The ring of truth, the clang of lies: assessing credibility in the courtroom.

• Author: Smith, Lynn (Canadian judge)
• Position: University of New Brunswick Law Journal Forum: Access to Justice

[The Honourable Justice Lynn Smith of the Supreme Court of British Columbia delivered the thirty-second Viscount Bennett Lecture at the University of New Brunswick, on February 22, 2011.]

INTRODUCTION

Humans deliberately deceive one another. This capacity to deceive creates some of the greatest challenges in our lives and relationships. The deception in the Garden of Eden is central to the Judaeo-Christian Creation story and to the notion of "sin". It is no surprise that many works of literature and theatre explore human mendacity and its consequences.

The story of Othello captures the agony experienced by someone who does not know whether to believe another person. In the film Doubt, (1) a nun is suspicious of a priest's relationship with an altar boy, despite the priest's denials that he has done anything inappropriate. The film's promotional tagline captures the conflict the nun faces: "There is no evidence. There are no witnesses. But for one, there is no doubt."

Human beings are not only deceptive but frequently unreliable. Most often this is unintended; we make mistakes for any number of reasons. Our powers of observation and recollection are what they are: imperfect. As well, we may firmly, but wrongly, believe that something happened in a certain way because we are thinking wishfully, or because we are fearful, confused or misled.

But sometimes we are unreliable because we knowingly set out to deceive. That is my topic: deception in the courtroom that is knowingly perpetrated by witnesses who fail to give truthful accounts of events and the consequential "credibility assessment" that forms part of the fact-finding process in Canadian trials.

I will use the term "credibility" for the specific issue of deliberate deception, and the term "reliability" to refer to the larger set of issues that may affect the testimony of witnesses, stemming from inaccurate observation or memory.

The title of my talk is "The Ring of Truth, The Clang of Lies." The title suggests that if one is born with, or can develop a good ear, the task of distinguishing the pure ring of truth from the harsh clang of lies might be straightforward; however, I will be exploring whether or not that is so.

Anyone involved in the legal system has thought about the problems inherent in fact-finding. It is a difficult task. That fact-finding can be difficult does not mean that it can be avoided. Trial judges, and jurors, must consider the evidence and find facts if at all possible. At the very least, they must decide whether the party with the burden of proof has or has not established a certain set of facts to the requisite standard.

Although fact-finding does not always depend on conclusions about truth-telling, it often does. Frequently, in order to decide what happened at a particular moment in the past, the trier of fact must first decide whom to believe, and how much to believe from various persons' accounts of the same events.

Of course, it is not only in courtrooms that people depend upon accurate credibility assessment. For example, in December, 2009, seven CIA agents were killed by a man they had believed to be their agent. He, in fact, turned out to be a triple agent. The CIA knew that this man had posted extreme anti-American views on the Internet, but had concluded that what he was doing in posting those views was creating a good "cover".

Another very well-known example of a long-term error in credibility assessment by a large number of people can be found in the huge financial losses experienced as a result of Bernie Madoff's deception.

The courtroom creates special conditions and imposes special constraints on the assessment of credibility, but the process itself is similar to what we informally and often silently do in our daily lives. In the courtroom, this process is formalized and, where credibility assessment matters, stated aloud. Most often, the finding of facts relates to past events and what a judge does in finding facts is write a history, based upon the evidence led at trial.

Judgments are meant to be historical accounts, not works of literature. However, there are lessons to be learned from literature for example, the common literary device of the unreliable narrator. An unreliable narrator is a character such as Mark Twain's character Huckleberry Finn (2) or Vladimir Nabokov's character Humbert Humbert in Lolita: (3) a character who tells the story from a point of view that we, the readers, know to be limited, partial and sometimes wholly inaccurate or deliberately misleading. As we progress through a novel or story told by an unreliable narrator, we experience growing doubt and scepticism, though we may still accept some of what the narrator relates.

There are also works in which multiple narrators tell the story, from competing and conflicting points of view. One example is the classic Japanese film Rashomon, (4) in which four witnesses give conflicting accounts of the rape of a woman and the murder of her samurai husband. A second example is Small Island, (5) a novel by Andrea Levy, where four characters are used, each with a distinct and partial point of view bearing on the events in their lives and, more expansively, on the settlement of Caribbean immigrants in England, the "Mother Country," after the Second World War. (Reading a work with multiple conflicting narrators can feel a lot like listening to evidence at a trial).

Another way to approach the narration of a fictional work is from omniscience. In Middlemarch, (6) for example, the omniscient narrator describes the "Provincial Life" in nineteenth century England from a god-like point of view, knowing everything, present everywhere, and understanding everyone's motives and intentions, even if none of the work's characters do so themselves.

I have not yet run across that in a witness. However, it is something like what a judge purports to do when he or she writes a judgment.

Not surprisingly, as well as a rich literature about truth and lies, there is also a rich store of fantasies about preventing deception or defeating those who set out to deceive us. Pinocchio is the archetype, of course, but an example that I find particularly interesting is Wonder Woman. It turns out that William Moulton Marston, the creator of the Wonder Woman comics, which began to run in 1942, had both an LL.B. and a Ph.D. in psychology. He is also credited as the creator of the systolic blood pressure test, which later became a component of the modern polygraph.

What does credibility assessment have to do with Wonder Woman? Those of us who devoured what we could now call "graphic novels" (which sounds so much more sophisticated than "comics") will recall that, as the child of an Amazon, Wonder Woman possessed a number of super powers and super devices, including her magic lasso. The Lasso of Truth, the iPad of its day, had a number of apps, including curbing the effects of the atomic bomb; but most significantly, Wonder Woman's lasso could compel whoever was encircled in it to tell the truth. The Lasso of Truth left even the most deceptive witness with no option but total candour.

Sadly, in the courtroom, as in daily life, we are unequipped with the Lasso of Truth, yet are nevertheless required to deal with the testimony of unreliable and sometimes mendacious human beings.

In this talk, I will touch on the following: What do we know about the ability of human beings to detect deception? What protocols or practices for the assessment of credibility have been developed in our adversarial system through the rules of evidence and procedure? Finally, what might we do to improve our ability to find facts accurately?

Review of Research Findings

An early judicial reference to the research on deception detection is found in R. v. Marquard. (7) In ruling that an expert witness had gone too far in commenting on the credibility of another witness, McLachlin J. (as she then was) commented, at para. 49, that:

Credibility is a matter within the competence of lay people. Ordinary people draw conclusions about whether someone is lying or telling the truth on a daily basis.

While it is undeniably true that distinguishing between lies and truths is a part of all our daily lives, a vast body of social science research shows that this is a task at which neither lay people nor supposed experts are particularly competent.

It is impossible to do justice to the research findings about the human ability to detect deception in the brief time we have here, but the following is a basic summary of what I understand the state of knowledge to be.

Intensive research about deception detection has been carried out in many parts of the world for at least 40 years. (8) It began well before the attack on the World Trade Centre and the Pentagon in 2001, but has increased thereafter, possibly as a result of funding directed toward such research by military and security forces. The deception detection research field has conferences; competing schools of thought, lively academic debates and competition, and even a television show inspired by one line of research "Lie to Me").

How is empirical research on the human ability to detect deception conducted? So far, two main methods have been developed.

The first method is to have volunteers in a laboratory setting either tell the truth or lie about an event. For example, the volunteer might be left alone in a room with a briefcase from which the volunteer is told that he can steal a wallet. The volunteer is later interviewed about whether he took the wallet. The researchers then analyze the volunteer's responses to see if they can observe any tell-tale signs of deception or of truth-telling. The researchers may also have a second set of participants try to decide whether the volunteers are lying or telling the truth by watching them live or on video.

A problem inherent to this approach is that the "stakes" are low for the volunteer interviewees, and it may be...