Assessing credibility and reliability - Leslie Cuthbert Recorder, Tribunal Judge & Adjudicator - EJTN ZOOM version 2020
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Assessing credibility and reliability
Leslie Cuthbert
Recorder, Tribunal Judge & Adjudicator
Session Aims There are 3 areas that will be covered over these two sessions: • The difference between credibility & reliability. • Identifying the mistakes of memory which can occur and what can be the impact of questioning/exposure to later information on a person's memory and their reliability. • Considering the issue of demeanour in relation to assessing credibility.
The Sessions • I know you don't currently have copies of the handouts - that is deliberate as I want your focus to be on me rather than looking at the materials. Handouts will, however, be available to you afterwards. • These sessions will be interactive and you will have the opportunity of asking questions at the end of each session.
What is the distinction between
credibility and reliability?
If something is reliable, you can trust it. It is the
inherent quality of the evidence.
If something is credible, you can believe it, whether
it's real or not, whether you can trust it or not.
A person's story is usually credible if it is reliable.
However, their story can be credible, but not reliable.• Evidence is reliable if it is what it purports to be. • For example, if a witness sees the occurrence of crime and then identifies the perpetrator, that identification testimony is reliable because it is what it purports to be: an identification of the person who committed the crime. If, however, the witness could not positively identify the suspect until investigators suggested that a particular person was in fact the perpetrator, the witness’ identification may not be what it purports to be. It may be a reflection of the suggestion rather than the witness’ own identification. • Testimony produced by coercive/inappropriate questioning is therefore similarly unreliable.
What do credibility and reliability
consist of?
• Credibility and Reliability consist, I
suggest, of 3 key attributes:
Honesty/Truthfulness
Consistency/Accuracy
ImpartialityInstructions
Count how many times the
players wearing white pass
the basketballInstructions
Count how many times the
players wearing white pass
the basketballMemory Almost EVERYONE’s memory is fallible.
Memory Test Part 1 • On the next slide are 2 lists. • Read them and do your best to memorise the contents of each list in the 30 seconds you will be given.
List 1
apple, vegetable, orange, kiwi, citrus, ripe,
pear, banana, berry, cherry, basket, juice,
salad, bowl, cocktail
List 2
web, insect, bug, fright, fly, arachnid,
crawl, tarantula, poison, bite, creepy,
animal, ugly, feelers, smallNow
we wait…
Very rarely will a person be asked to relay
their recollection of matters that occurred
moments before and likewise you will have to
wait until later before having to remember the
words from those lists.Change Blindness People generally are taken off guard by an unexpected event that occurs, they are often also preoccupied with their own thoughts and plans. Would you notice if you changed from talking to 1 person to another person?
Change Blindness
Change blindness:
Change blindness
Failing to notice apparently obvious blindness:
changes in a scene
The unduly optimistic belief
Simons and Levin (1998) that one is very rarely
Design: affected by change
A stranger asks unwitting blindness.
participants for directions
After 10–15 seconds, people People mistakenly assume
carrying a door pass in front of that they fully process
the participant, blocking their everything in their periphery.
view
During this time the stranger is
replaced by a different person
Results:
About 50% of participants failed to
notice the switch!False Memory People's memories are not infallible because of the reconstructive nature of memory. People don't store exact copies of their experiences but rather an 'outline'/the gist which is filled in later when it is sought to be recalled. We can't tell the difference between what they have actually experienced and what they may simply have heard after an event. The brain fabricates illusions so realistically that we believe that they are true.
Source Misattribution/False Memory
Hillary Clinton in Tuzla, 1996
http://www.youtube.com/watch?v=8BfNqhV5hg4
"I remember landing under sniper fire," she said in Washington. "There
was supposed to be some kind of a greeting ceremony at the airport, but
instead we just ran with our heads down to get into the vehicles to get to
our base."
News footage of the event, however, showed her claims to have been
wide of the mark, and reporters who accompanied her stated that there
was no sniper fire. Her account was ridiculed by ABC News as "like a
scene from Saving Private Ryan".
Was this motivated by political opportunism or was the original memory
distorted by viewing other sources of information?Ebbinghaus Forgetting Curve
Everyday v Flashbulb Memory
Witness Confidence Decision makers tend to be influenced by a witness’s apparent confidence when giving their evidence but confidence is NOT always a good predictor of accuracy e.g. Sporer et al. (1995) found that the correlation between confidence and accurate identification is: Non-existent for people who don’t make a positive identification. Moderate (+0.4) for people who do make a positive identification.
Distinguishing True v False Memories A 2020 study by Dr Julia Shaw* found that participants were no better than chance (i.e. 50/50) at identifying rich emotional false memories, and no better than chance at identifying rich false memories of committing crime. Even when participants knew that one of the memories was false and the other true, they were unable to reliably tell the difference. In cases where it is alleged that a particular witness is mistaken, this study suggests that people may quite readily accept that a true memory is false, or that a false memory is true. *Do False Memories Look Real? - https://doi.org/10.3389/fpsyg.2020.00650
The Loftus experiment
Loftus and Palmer exp.1
Mean speed estimate
Verb
(mph)
Smashed 40.8
Collided 39.3
Bumped 38.1
Hit 34.0
Contacted 31.8Loftus and Palmer exp.2 Response to "Did you see any broken glass?" Response Smashed Hit Control Yes 16 7 6 No 34 43 44
Memory Test Part II On the next slide is 1 list. In the poll tick either of the words in the pair of words which you recognise which you believe appeared in the previous 2 lists.
happy, woman, winter, circus, spider, feather, citrus, ugly, robber, piano, goat, ground, cherry, bitter, insect, fruit, suburb, kiwi, quick, mouse, pile, fish
How did you do? Chances are that some of the words you thought you remembered i.e. “spider” and “fruit” are not in the previous lists at all. The words in the original lists simply suggested associated ones which appear in the third list. This false memory effect relates to the power of suggestion and is a danger which you must always be on your guard about in how witnesses are asked questions.
Memory Test Part III
These are the original lists. Compare them against the
words you wrote down.
List 1
apple, vegetable, orange, kiwi, citrus, ripe, pear,
banana, berry, cherry, basket, juice, salad, bowl,
cocktail
List 2
web, insect, bug, fright, fly, arachnid, crawl,
tarantula, poison, bite, creepy, animal, ugly,
feelers, smallQuestions This brings to a pause our consideration of the assessment of reliability of evidence. We will return to it tomorrow, along with consideration of the issue of credibility of evidence, especially as to the credibility of an individual’s evidence based upon how they present themselves. Any questions? Overnight, please consider what you look out for in relation to how someone speaks to you when determining whether or not they are telling you the truth.
Assessing credibility and reliability
Part II
Leslie Cuthbert
Recorder, Tribunal Judge & AdjudicatorWelcome Back Having had the chance to reflect over night are there any questions from anything we covered yesterday? I asked you to consider what you look out for in relation to whether or not someone is telling you the truth. So let us begin with that.
Why a session on assessing demeanour in terms of credibility? In parts of Germany in the 13th century the hand of a believed victim of murder would be brought in to court and given to the suspected killer who, clad only in a loincloth, would have to hold it and assert their innocence 3 times. If the judge detected signs of discomfort in either the Defendant or the hand, guilt would be established.
What is demeanour? Lord Bingham: ‘[a witness’s] conduct, manner, bearing, behaviour, delivery, inflexion: in short, anything which characterises his mode of giving evidence but does not appear in a transcript of what he actually said.’
The importance of demeanour when
giving evidence
Lord Justice Ormerod:
‘As a method of communication it is very
complex, involving not only what is actually
said, but how it is said. Inflections in both
questions and answers may be highly
significant, and the demeanour, not only of
the witness, but of others in court may be
revealing.’The importance of demeanour? Lord Justice Browne: ‘So the main job of the judge at first instance is to decide the facts. How does he do it? When there is a conflict of evidence between witnesses, some judges believe that they can tell whether a witness is telling the truth by looking at him and listening to him. I seldom believed that.’
The importance of demeanour? Let us return to Lord Bingham: ‘The anxious cases are those, which arise not infrequently, where two crucial witnesses are in direct conflict in such a way that one must be lying, but both appear equally plausible or implausible. In this situation I share the misgivings of those who question the value of demeanour as a guide.’
Exercise You have 1 minute to write down as many of the individual states of the United States of America as you can remember by yourself.
What research on demeanour is
there and what are its limitations?
■ More than 132 studies in English on non-
verbal cues to deception
■ Field studies
■ Laboratory studiesWhat are the non-verbal cues to
deception?What do people believe about non-verbal
and verbal cues to deception?
■ Global Deception Team (2006)
■ Beliefs relate to:
■ Gaze aversion
■ Body movements and nervousness
■ Inconsistency
■ Lack of plausibility
■ Untidy people are more suspicious than tidy people
■ People wearing black are more suspicious than those
with light clothing
■ Attractive people more honest than less attractiveWhat indicators do you take from a
person's tone of voice?
• A person telling the truth has nothing to
fear and therefore has no reason to
stammer or hesitate?
• Therefore people telling the truth will be
spontaneous and relaxed.
• A person who is attempting to lie will lower
their voice or speak in a 'squeaky' voice?Discriminating between truth and lies
in adults
Ability to detect lies
Teachers 45%
Social workers 47%
Chance 50%
Judges 55%
Police 57%
Special agents 65%Discriminating between truth and lies in
adults
■ Why do judges not perform better?
■ Witness is a stranger to the judge
■ Too confident?
■ Lack of feedbackDiscriminating between truth and
lies in children
• When do children start to lie?
• How do they learn to lie?
• Accuracy rates in laypersons are 49 - 66%
• Accuracy rates in professionals are 43 - 67%What do people believe about non-
verbal and verbal cues to
deception?
Professor Aldert Vrij:
‘People typically have incorrect beliefs about
cues to deception. They associate lying
with many cues that have actually no
relationship with deception…….on the other
hand they are unaware of several cues that
are to some extent related to deception.’Evidence backed cues about deception
• Often a better means of assessing a person's credibility.
• A form of 'forensic linguistic analysis’ helps to detect possible deceit.
• Look out for:
• distancing language i.e. avoiding the use of I - "how can you say
that?"
• passive language - "if you say so"
• negative language - "You can't be serious"
• content at odds with non verbal - saying "No" but nodding head
• longer pauses in their speech
• waiting longer before giving an answer
• making more word and phrase repetitions
• a tendency to make generalised statements
• a tendency to make shorter statementsConsistency/Inconsistency
■ Consistent statements
■ Lord Justice Maurice Kay:
‘The mere fact that a witness has said substantially the
same thing on a previous occasion will not generally be a
sufficient basis to adduce the previous statement when
the truthfulness of his evidence is put in issue.’Consistency/Inconsistency
■ Inconsistent statements
■ Crown Court Bench Book:
‘The fact that on an important subject A has been
inconsistent, and the inconsistency is not satisfactorily
explained, may lead you to conclude that you cannot rely
on A’s oral evidence on that subject.’Exercise Part II • You again have 1 minute to write down as many of the individual states of the United States of America as you can remember by yourself. • Do NOT look at the earlier sheet on which you wrote down the list.
Tips for assessing credibility • Don't make snap judgments (gut feelings) based upon a sole aspect of someone's demeanour. • Instead be alive to inconsistencies between the content of what someone is saying and how they are saying it. • On spotting an inconsistency probe the content/topic being spoken about - use an information-gathering style • Be suspicious - but do not show it • Let the witness repeat him or herself • Ask the witness temporal questions • Consider how readily the witness makes concessions
Some rules of thumb regarding
reliability (all have exceptions!)
• The usual is more likely to be what occurred
than the unusual.
• A witness whose evidence suffers from no
internal inconsistency is more likely to be
correct than a person whose evidence cannot
be so described.
• A witness whose evidence is consistent with
other witnesses is likely to be correct.
• The witness whose evidence is consistent with
the documents is more likely to be correct.• Don't think you have some innate ability to spot a liar - try not to judge a case wholly on observations of demeanour. • All observation evidence needs to be examined in the light of the opportunity to observe so distance, position, light & amount of time available to observe are important. • Many witnesses will lie when they think they can escape detection. • Don't be misled by an advocate's 'tricks'. • Sometimes 1 unassailable piece of evidence will reveal where the true facts fall.
• Always take into account cultural or other characteristics which operate on the witness. • Just because a witness says something is so, and is shown to be a liar, does not establish that something is not so! • Beware of gaining such sympathy for a party that you start to see life through that party's eyes. • One can sometimes infer the truth from the fact that a witness has not said something or was not asked questions about a fact.
Further Reading 'Thinking. Fast and Slow' by Daniel Kahneman (‘The Undoing Project’ - Michael Lewis) 'Blink' and ‘Talking to Strangers’ by Malcolm Gladwell (+ his ‘Revisionist History’ podcast) 'Mistakes were made but not by me' by Tavris & Aronson 'The Invisible Gorilla' by Simons and Chabris 'The Memory Illusion' by Dr Julia Shaw ‘Born Liars’ - Ian Leslie
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