Assessing Credibility and Reliability

Assessing credibility and reliability

Leslie Cuthbert Recorder, Tribunal Judge & Adjudicator

Session Aims

There are 3 areas that will be covered in this session:

• 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 Session • I know you don't currently have copies of the handouts - that is deliberate as I want your focus to be here rather than looking down. Handouts will, however, be available to you afterwards.

• Although this session will be interactive given the pressure of time we don't have the opportunity of my answering questions so if you have any queries please raise them with me during a break later! 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 Impartiality Instructions

Count how many times the players wearing white pass the basketball Instructions

Count how many times the players wearing white pass the basketball

Memory

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, small Now 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

"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". http://www.youtube.com/watch?v=8BfNqhV5hg4 Was this motivated by political opportunism or was the original memory distorted by viewing other sources of information? 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. The Loftus experiment Loftus and Palmer exp.1

Verb Mean speed estimate (mph)

Smashed 40.8

Collided 39.3

Bumped 38.1

Contacted 31.8 Loftus and Palmer exp.2 Response to "Did you see any broken glass?"

Response Smashed Hit Control

Yes 16 7 6

No 34 43 44 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 studies What 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 attractive What 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 feedback Discriminating 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 statements Consistency/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. Pointers on 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 Memory Test Part II

On the next slide is 1 list.

Write down the words you recognise below 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, small 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 (as well as his podcast ‘Revisionist History’)

'Mistakes were made but not by me' by Tavris & Aronson

'The Invisible Gorilla' by Simons and Chabris

'Time Warped' by Claudia Hammond