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A (Mostly) Light Look at Witness Credibility (Part 2)


Prior to my vacation, in my first post on this topic, (you can find it here:) I talked about the first four tips of Kristin Salaky’s light article: “9 ways to tell if someone is lying to you” from an adjudicator’s perspective. I discussed the first four tips in the context of a hearing into an accusation of a cheating spouse. In this post, I’ll look at the latter five.

To be fair to Salaky, her article was written not for an adjudicator, but in the context of people that know each other. That is an important distinction because when I act as an adjudicator it is rare that I have ever met the witnesses before. I only “know” them for the short period of time they testify in front of me. So I need to make a decision about their credibility, not on how I “know” them, but based on the evidence and their testimony. This essential fact can, it seems, be difficult to understand for some newcomers to the arbitration process; they “know” they are telling the truth and feel that I must know that too. It simply does not work like that.

With these thoughts in mind, let’s look at Salaky’s next five tips.

Tip #5 - "Lean in."

"If the person you're accusing of lying is leaning away from you, that could be a tell-tale sign that they're uncomfortable and their body is betraying them and exposing that."

In my previous post, I talked about the difficultly with judging credibility based on a perception of the demeanour of the witness. This is another example of that difficulty. Almost everyone who testifies in a legal proceeding, like an arbitration, is going to be “uncomfortable”. It is not fun to take an oath and be examined by the parties’ representatives in front of a stranger who is judging you. In many circumstances, the evidence will itself be uncomfortable. Cross examination is inherently uncomfortable. So, little can be deduced from whether the witness is leaning away from the examiner, even if that is possible… given that the witness will generally be seated in a chair!

Tip #6 - "Take stock of their response."

"If you accuse someone of lying or question their story, pay attention to how they respond. An innocent person may be offended and question you, but a guilty party may go much further in their defense of themselves."

“Taking stock” of the witness’ response is, of course, the essence of the adjudicator’s job. That being said, the explanation appears to be saying that a witness may be lying if, to quote Shakespeare, the witness “doth protest too much”.

There is a nugget of something here. When a witness testifies, his responsibility is to answer the questions put to him and only those questions. There is no doubt that many witnesses can not resist going beyond this; they feel a need to explain their answer or try to answer what they think the examiner is really getting at, rather than simply answering the questions put to them. There is nothing inherently incriminating about that. It can simply be a sign of nervousness.

If a witness answers questions in an expansive way, going well beyond the scope of the question asked, this can be an indication that the witness is acting as a sort of advocate for one of the parties. It can also mean that the witness is not telling the truth. Similarly, when a witness “protests too much” this can be suspicious. I see this most often when a witness claims that he “never” does something (like using profane language). The witness may be telling the truth but my antennae go up.

A famous example of a witness claiming that he never did something occurred in the O. J. Simpson trial when a police officer testified under cross examination that he had not used a certain racially charged word in the previous ten years. The jury did not believe him right from the start and their instincts were proven right later in the trial. He was even convicted of perjury as a result of his testimony. He really was protesting too much. https://en.wikipedia.org/wiki/Mark_Fuhrman

Tip #7 - "Pay attention to how they shake their head."

Your body can betray you so often when lying and even a simple tip of the head can be your doom.

"Former CIA officers take the identification of cues a step further to discover if someone is lying," Lavelle said. "One example mentioned is verbal/non-verbal disconnect if someone is saying 'yes,' but shaking their head no, this is a potential sign of deceit."

Tip #8 - "Pick up on any differences in their behaviour."

"If this person is normally boisterous but has suddenly become quiet when confronted, you may have a liar on your hands."

I will consider Tips 7 and 8 together because they are further examples of attempting to establish credibility through demeanor. Whatever their value when a spouse confronts her partner or the CIA questions a suspected terrorist, they are of very limited assistance to an adjudicator, particularly in the absence of other indications of deceitful testimony. One would think the CIA would have better methods, but this may go some way to explaining why they have felt compelled to resort to torture. They would have to wait a long time before they saw a suspect shake his head while saying yes, and then what real value is it? Fortunately, waterboarding is not part of my repertoire.

Tip #9 - "Trust your gut."

"Sometimes people are really, really good liars and they won't have many tells at all. Still, if your gut tells you they're lying, then that could be all the prompting you need to have a discussion."

There is no doubt that arbitrators get gut feelings about whether a witness is telling the truth or not. Perhaps, this happens as a result of the demeanour of the witness, or because the witness is displaying subtle non-verbal clues or some of the other factors Salaky discussed. Ultimately, a gut feeling is not a proper basis to conclude that a witness is dishonest. I must be able to explain my conclusion about the witnesses credibility in written reasons and I can only imagine a reviewing court’s reaction were I to write that I believed one witness over another because of my gut instinct.

***

So if none of the nine tips have helped us much, how do adjudicator’s determine credibility? Unfortunately, I think Ms. Salaky has missed an important tip: “how does the allegedly cheating husband’s story fit with the known facts?” This is the way (along with the things I mentioned earlier) in which Canadian courts and arbitrators have been determining credibility for years, especially when there are competing stories, but even when there is just one witness whose credibility must be assessed. The Ontario Court of Appeal (in Re: Phillips et al. v. Ford Motor Co. of Canada Ltd., et al. (1971), 1971 CanLII 389 (ON CA), 18 D.L.R. (3d) 641), citing a passage from a judgment of O'Halloran, J.A., of the British Columbia Court Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, explained this as follows:

If a trial judge's finding or credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box…

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a court satisfactorily appraise the testimony of quick- minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skillful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial judge to say "I believe him because I judge him to be telling the truth", is to come to a conclusion on consideration of only half the problem. In truth, it may easily be self-direction of a dangerous kind.

The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses and a Court of Appeal must be satisfied that the trial judge's finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case.

A couple of simple examples can help us understand what the court was talking about. Our allegedly cheating husband has to use his security card to get to his car if he is working late. But the records don’t show that he used his card on the night in question. This suggests that he was not working late as he claims. However, it is not conclusive; he may have an explanation (like his car was at the dealership getting fixed), but that explanation will have to be carefully considered. This is the kind of thing that happens all the time in arbitration. We compare the testimony with things we know to be true.

A second example occurs where the testimony is compared not with what is known to be true, but with what is likely to be true. While an arbitrator must be more careful in this sort of analysis (because what is likely to have happened is not always what happened), it is essential in many cases. This kind of conclusion is reflected in a case I did at the Labour Board involving a union organizing drive. A credibility issue was whether a senior executive of the company had attended a department meeting in response to union organizing. I found that certain topics were discussed at the meeting and then used that conclusion and other facts to make a credibility finding:

There was some oral testimony from company witness that Mr. Lui had frequently attended these meetings in the past and that his attendance at this meeting was unrelated to the union organizing drive being significantly supported by the staff in that department. While it is true that Mr. Lui in the past occasionally attended Sales and Marketing department meetings it is also the case that this was a rare occurrence. Given that the union had just started its organizing drive, the topics discussed at the meeting and the frequency of his previous attendances, I find it more likely than not that hisattendance at the meeting was in response to the union organizing.

There is no doubt that some of the tips set out by Salaky in her article are critical to determining credibility. In particular, when a witness gives inconsistent testimony that is often a sign of dishonesty. At best, it leaves doubt about the accuracy of the witness’ memory. However, in many cases, what is decisive in deciding who is telling the truth is a comparison of the evidence given to the known or most likely facts. It can come down to a single question: does that witness’ story make sense given those facts?

***

In my next post, I will talk a little about what this means for someone who is presenting an arbitration case.


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