Rule No. 1 in Identifying Liars Is Don't Get Cocky by Phillip R. Maltin
James E. Files claims he shot President Kennedy from the grassy knoll in Dallas. Files, now serving an unrelated 50-year sentence, describes the assassination in a taped interview in 1994.
As he sits in a cell in the Stateville Correctional Center in Illinois, he speaks with the confidence of an eyewitness and the dispassion of a hired killer: "When I got to the point where I thought it would be the last field of fire ... [I shot, coming] in on the left side of the temple. At that point, through the scope [on the gun], I witnessed everything, matter and skull being blown out to the back on the limousine, and everyone on television watching saw Jackie Kennedy crawl out there to get it."
He speaks consistently, without hesitation. His facial _expression is also consistent, serious and focused. His eyebrows are steady. He does not smile. His shoulders remain even. He does not fidget. He displays the precision and calm of someone telling the truth. But is he?
Leading researchers - such as Paul Ekman, professor emeritus of psychology at UC San Francisco - who study nonverbal behavior and the manifestation and physiology of emotion, focus on facial _expression, body movement, vocal pitch and a person's comments to develop human lie-detection skills. Lawyers, especially litigators and trial lawyers, can benefit enormously from Ekman's work.
Statistics show that people are not as good at identifying liars as they might believe. No correlation exists between self-reported accuracy and true ability. Ekman & O'Sullivan (1991). The first step to learning how to identify liars during litigation is to accept that the vast majority of lawyers cannot protect against clever liars and con men. "[C]ontrolled studies have shown that people are poor intuitive judges of truth and deception," particularly "police and so-called experts ... who are highly prone to error." Kassin & Fong (1999), citing Ekman & O'Sullivan (1991).
The accuracy rate of the vast majority of people who have participated in studies on identifying dishonesty is no better than a guess: 50-50. Ekman (1999).
Why are we so bad at it? Probably because most people, in practice, do not believe in original sin. Most people choose to believe that those with whom they speak are truthful. Believing otherwise distracts from the conversation. It's too hard to focus on what people are saying if the listener is concentrating on whether the speaker's conduct reveals evidence of dishonesty.
Another reason we are bad at identifying liars is because some liars are spectacularly good at it. They are as sophisticated at lying as listeners are unsophisticated at detecting them.
The problem at its core is that nervous people look dishonest. "[P]eople who stand falsely accused of lying often exhibit patterns of anxiety and behavior that are indistinguishable from those who are really lying." Kassin & Fong (1999). Behavior associated with dishonesty is similar to nervous behavior.
Ekman believes strongly that through research, training, practice and some innate ability, people can improve their aptitude for identifying behavior associated with dishonesty. Critical to learning how to develop this skill is to recognize what a lie is.
A lie is not a mistake. It is an intentional act or omission designed to mislead. Thus, a person who believes his "lie," or who lacks the mental capacity to understand that he lies, is not lying. Antisocial personality disorder (sociopaths and psychopaths), rehearsed lies and self-deception can be antidotes to leaking signs of dishonest conduct. The liar must know that he is trying to misinform.
A liar is most vulnerable to being exposed when he engages in a "high stakes" lie. High-stakes lies occur when the rewards for successfully lying increase along with the penalties if caught. A high-stakes lie emerges, for instance, when a teenager, who has been at a party two hours beyond her curfew, returns home late and pleads "I had a flat tire." High-stakes lies create the best opportunity for identifying liars (Frank & Ekman (1997)) because they cause the liar's anxiety to surge.
When discrepancies exist between a person's facial expressions, behavior and comments, a "hot spot" erupts. A hot spot exists when the sound of the voice, the words used, the _expression displayed or the behavior presented are discordant. Hot spots tell you that you are not getting the full story.
People do not display nervousness - manifest hot spots - the same way. Liars do not always look in a certain direction, avert eye-contact or fold their arms. Signs can emerge in body maneuvers and gestures, pitch of voice, facial expressions and words used. For example:
Body maneuvers and gestures: Look for body language inconsistent or temporally disjointed from the comments being made. A shoulder shrug typically means, "I don't know."
Imagine the impression a shoulder shrug would create were President Clinton to have shrugged as he insisted, "I did not have sexual relations with that woman [shoulder shrug] Ms. Lewinski." "That" would be a hot spot. Look also for frequent face scratching, or manicured, overly calm or polished gesticulations.
Observe whether the head shakes "no" while the voice answers "yes." Eye fluttering or excessive blinking is another clue. At one critical point while testifying, Clinton blinked 29 times in 27 seconds.
Pitch of voice: Listen for intonation. In a critical portion of the questioning, has the tone of the witness' speech become flat, controlled and monotone? Has the pitch risen? In responding "no" to questions, does the witness extend her vowels, lifting them up at the end?
Facial expressions: Ekman has studied what he calls facial microexpressions. These are spontaneous facial expressions that betray emotion in a fraction of a second. The _expression emerges and disappears quickly as the mind steps in to quell it.
Ekman has identified seven microexpressions that occur cross-culturally: happiness, sadness, anger, disdain/contempt, disgust, surprise and fear. During his testimony before the grand jury, Clinton avoided answering a question that prompted an immediate follow-up. In listening to the follow-up, Clinton's lips thinned as he thrust his jaw and exposed his teeth, all in about a half of a second. His _expression betrayed frustration and anger.
Words used: Perhaps the least reliable measure of honesty is the one we focus on the most, words. In connection with other criteria, these may reveal hot spots:
How does a lawyer improve his or her ability to question witnesses and to identify liars? First, drop the pen and observe the witness. Next, generate a baseline for the witness's conduct. Observe how the witness acts when not pressed, when comfortable.
Then, look for hot spots and compare them with the witness at baseline. Do constellations of behaviors reveal discrepancies between the witness' conduct and comments?
If so, do not presume dishonesty. Grow curious. Make the witness want to tell you his or her story. Stop asking questions only when satisfied that you understand why a hot spot erupted.
Finally, and most important, remember that confidence is no measure of your skill in identifying liars. Conclude dishonesty as a last resort.
Phillip R. Maltin, a partner in the employment law department of Silver & Freedman in Los Angeles, speaks on how to identify liars and prosecutes criminal cases for the Los Angeles city attorney's office through the fellowship program of the Trial Advocacy Project.