[blindlaw] conducting investigations

[Brian Unitt]

Elizabeth,

There are some studies that cast doubt on the assertion.  If you have access to the Los Angeles Daily Journal, checkout: "Who is telling the truth?" by MYRON MOSKOVITZ (10/2/2018).  His focus is on fact finding by jury or judge and the implications for appellate review. Here is the gist:

"Although most people cannot do better than chance in detecting falsehoods, most people confidently believe they can do so." Wellborn, "Demeanor," 76 Cornell L.Rev. 1075, 1081 (1991).

Psychologists who have conducted experiments on these issues generally conclude the following:
* Watching a witness' body movements is rarely useful -- and is often misleading.
* Listening to the witness' voice is sometimes useful, and less often misleading, but is generally not helpful.
* Cross-examination at trial -- the adversary system's famous "engine of truth" -- can cause changes in demeanor that lead the fact-finder away from the truth.
* Most useful of all is carefully examining the content of the witness' testimony -- and paying no attention at all to her demeanor. In fact, demeanor often leads you away from the truth.

"... the myth that we can easily detect lying stems from the fact that we can detect lying pretty well -- with people we are close to: family and friends. This is because with them we have a "base line" -- how theyusually speak and move in ordinary conversation, when they are telling the truth. Odd changes in facial expression, body movement, or voice indicate to us that something is off. But with strangers, we lack the "base line". A stranger on the witness stand might always twitch when anxious, but we have no way of knowing that. Or odd habits (like not looking someone in the eye) might stem
from cultural norms with which we are unfamiliar."

"the capacity of triers to appraise whether a witness is simply mistaken appears to be even worse than their ability to discern dishonesty. * * * *  The confidence of the witness, rather than accuracy was the major determinant of juror belief. Unfortunately, confidence bears little relation to the accuracy of eyewitness identification." Wellborn, supra, at 1088-89.

One study indicates that juries focus on demeanor most when witnesses disagree, so a focus on demeanor can determine the outcome of a case that turns a credibility battle. Blumenthal, "A Wipe of the Hands, A Lick of the Lips: The Validity of Demeanor Evidence in Assessing Witness Credibility," 72 Nebraska L.Rev. 1157, 1158 (1993).

One study showed that California judges did no better than chance at detecting
liars from demeanor. (Same with cops and psychiatrists. Only group to do better than chance were Secret Service agents.) Ekman & O'Sullivan, "Who Can Catch A Liar?," American Psychologist, Sept. 1991, p. 913; Spottswood, "Live Hearings and Paper Trials," 38 Florida State L.Rev. 827, 838 (2011).


Hope that's of some use.

Brian
Brian C. Unitt
Certified Specialist in Appellate Law
The State Bar of California Board of Legal Specialization

Holstein, Taylor and Unitt
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From: BlindLaw <blindlaw-bounces at nfbnet.org> On Behalf Of Elizabeth Troutman via BlindLaw
Sent: Monday, October 29, 2018 4:57 PM
To: blindlaw at nfbnet.org
Cc: Elizabeth Troutman <ETroutman at BrooksPierce.com>
Subject: [blindlaw] conducting investigations

I am told that being able to see visual clues, body language, and facial expressions is an essential function of conducting an investigation. Is this assumption demonstrably untrue? What are some techniques and accommodations people have used to conduct investigations?
Thanks!

Elizabeth Troutman<http://www.brookspierce.com/our-people/attorneys/elizabeth-l-troutman><http://www.brookspierce.com/our-people/attorneys/elizabeth-l-troutman%3e>

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