- Brian McLean
A (Mostly) Light Look at Witness Credibility
Today on my MSN homepage I saw an interesting photo article (right next to an article entitled “You’ve been cooking potatoes wrong your whole life” where I found a recipe for baked hasselbacks- they are in the oven as I write) by Kristin Salaky: “9 ways to tell if someone is lying to you”. Even though the article appeared to deal with relationships (a cheating husband) I thought it might provide some assistance for me as an adjudicator. I was attracted to the idea that: “If you suspect someone's being untruthful, there are a few things you can do to try and sniff out their unsavoury behaviour - even without a lie detector test.”
The link is here.
There is no doubt that assessing credibility is one of the most important, and difficult, jobs of an adjudicator. I often advise parties during settlement discussions that I am not a wizard - I cannot conjure up a vision to tell me who is telling the truth. Except in those relatively rare cases where skillful cross examination makes the job easy, most often it is a process of wrestling with the facts in order to come up with my best judgment. In short, I can use all the help I can get.
So, let’s consider tips 1-4 today and tips 5-9 in a later post. The allegedly cheating husband is in the witness box.
Tip #1 - “Pick up on their posture.”
“Someone who is lying will often show it with their body language. Oftentimes, they will shrink in on themselves, slouching and slumping to subconsciously protect their body while they're deceiving you.”
This does not seem so helpful. Most of the witnesses in the cases I do are sitting straight up in a chair. The formality of the process, as informal as it is, leads to a certain posture.
Hopefully tip #2 will be of more assistance.
Tip #2 - “Look them in the eye.”
“We've all heard the phrase "look me in the eyes" in reference to when someone is lying. But it turns out there is actually a lot of truth to that: Lack of eye contact is one of the first non-verbal signs that someone is being deceitful.”
While adjudicators can consider the demeanour of a witness, including, I suppose, whether the witness is making eye contact with the examiner or the adjudicator, it is clear that great caution must be exercised in doing so. Recently the Ontario Court of Appeal commented on this in R. v. Dyce,  ONCA 123 (CanLII) where the court noted at paragraphs 11 and 12 of the decision:
The Canadian Judicial Council’s Model Jury Instructions, Part I, Preliminary Instructions, 4.11 Assessing Testimony (online: https://www.nji-inm.ca/index.cfm/publications/model-jury-instructions/?langSwitch=en) includes the following:
What was the witness’s manner when he or she testified? Do not jump to conclusions, however, based entirely on the witness’s manner. Looks can be deceiving. Giving evidence in a trial is not a common experience for many witnesses. People react and appear differently. Witnesses come from different backgrounds. They have different intellects, abilities, values, and life experiences. There are simply too many variables to make the manner in which a witness testifies the only or the most important factor in your decision.
In R. v. Rhayel, 2015 ONCA 377 (CanLII), 324 C.C.C. (3d) 362, at para. 85, Epstein J.A. cited the growing understanding of the “fallibility of evaluating credibility based on the demeanour of witnesses”:
It is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom. One of the dangers is that sincerity can be and often is misinterpreted as indicating truthfulness.
In other words, a witness may not make eye contact because they are shy or because they have grown up in a culture where making eye contact is frowned upon. I think Madam Justice Epstein is right.
Tip #3 - “Notice the rate of their movement.”
“Lying people typically want to trick the questioner into thinking they're calmer than they are, so their movements will reflect that.”
Again, maybe this kind of assessment works between people who know each other well, but how am I to know whether someone is acting excessively calm? Maybe they are always calm. Maybe over the course of a long cross examination one could discern excessive calmness. Maybe this has almost no chance of working.
Tip #4 -“Pay attention to their story.”
“Unless they're incredibly skilled at lying, most liars will have inconsistencies in their story.”
Now we are getting somewhere. This is close to something that is of assistance. There is no doubt that inconsistencies and contradictions in a story are a way to assess whether someone is telling the truth. That being said, not every time a witness testifies to inconsistent facts, by necessity means the witness is lying. It is always possible for a witness to make honest mistakes, even the husband. Counsel can, in cross examination, or re examination, explore these inconsistencies with the witness to see if this is the case. Additionally, the fact that a witness makes inconsistent statements about peripheral issues does not necessarily mean the witness is lying about everything. But the converse can be true - inconsistent evidence given about facts central to the dispute can lead to the conclusion that the witness is not truthful.
If our husband first testifies that he stayed out late with the guys after work, and then later gives evidence that he was working late on the same night, that says something about his credibility. However it is important to keep in mind that it is entirely possible he was, in one instance, thinking about a different night, or even (on the correct night) that he went out with the guys and then came back to work.
One out of four ain’t bad (and seems downright good if you are a Blue Jays player). But hopefully the next five tips will be even better.