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ow often have you heard the phrase, “Look me in the eye and say that.”? It is deeply rooted in our collective

psychology that the best way to tell whether someone is telling the truth is to look them in the eyes while they are speaking. Suppose I were to tell you that you'd be better off closing your eyes while that person was talking to you? Well, that advice is among surprising lessons learned from research on deception detection, conducted by psychologists, sociologists and neuroscientists over the past few decades.

Here are a number of commonly relied upon indicators of deceptive behavior:

Avoidance of eye contact

Stuttering

Perspiration

Fidgeting

Hesitation

Blinking

Shifting position

Nervous laughter.

Whether a person can articulate exactly what he is looking for when trying to determine whether he is being lied to, he likely makes note of these various visual and auditory cues in conducting his evaluation. The problem is that we, as human beings, tend to focus on the wrong things and also make the wrong inferences from what we observe. The “tells” on the list above have been shown experimentally to be very poor indicators of lying.1

The major reason that they serve so poorly as proxies for deception is that speakers who want to be believed regularly exhibit such behaviors even when they are telling the truth, especially in high stress situations.

Consider the HR professional who

takes the stand in an employment discrimination lawsuit. Her own handling of the underlying workplace situation might be in question. She is often speaking as the company's representative, a role with a lot of responsibility and pressure. Her testimony might be central to the jury's evaluation of the case—or she might just believe that it is. She is an unfamiliar environment, being questioned by a hostile stranger, while a stern judge in a black robe stares at her from on high. In short, this is an extremely stressful environment. The witness is highly motivated to be believed by the jury. Would anyone

blame her if she fidgets, or stammers, or perspires or occasionally loses focus? Of course not; but jurors are likely to interpret these symptoms of stress as red flags for deceitfulness.

This article (second in a two-part

series)2 is devoted to reviewing what we know about strategies people use to evaluate whether a speaker is being truthful or deceptive, the actual effectiveness of those strategies, and what has been learned over the years about how to help people improve their performance in terms of deception detection. This discussion follows upon what was covered in the first article and so a brief review is in order.

First and foremost, human beings

are supremely bad at differentiating true statements from lies. Over hundreds of studies, conducted in a variety of settings over decades of

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“He Said What?”: Deception Detection and Employment Litigation – Part II: The Fallible Juror

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research, the primary, and remarkably robust, result is that we, as a species, do little better than flipping a coin when it comes to detecting deception. The average success rate at telling truth from fiction is about 54%.3

In the first article, I reviewed

several variants of this basic result. “Professional” lie detectors, such as law enforcement agents, judges and mental health professionals, do not perform significantly better than the rest of us at discerning truth from fiction. We are all generally more suspicious of messages from men, and yet they are more effective than women at duping us with their lies. From a gender perspective, the most accurate kind of evaluation is women correctly discerning when another woman is being truthful. This result needs to be interpreted with a grain of salt, however, due to something known as the “truth bias.” Humans, in general, and women to some extent more than men, tend to believe they are being told the truth more often than they are. In studies where participants are exposed to equal ratios of lies and truths, they still identify almost two-thirds of statements as true. As such, just by sampling, participants will correctly identify a higher percentage of truths than lies.

An interesting thing can happen,

however, when the statements being evaluated are “denials” instead of “assertions.” Researchers have detected a “lie bias” with respect to denials, which calls into question our collective commitment to the idea of “innocent until proven guilty.” Forcing someone to deny something on the stand—even truthfully—can cause jurors to increase their internal estimates of the likelihood that the person is a liar.

The second key finding from the

experimental research is that we all think we are much better at discriminating honesty from lies than we really are.4 Therefore, jurors will often rely heavily on their evaluations of a witness's credibility,

notwithstanding the fact that those evaluations are likely to be faulty. A key corollary to this result is that there is virtually no statistical relationship between a person's confidence in his ability to tell whether someone is lying and his actual ability to do so. The juror who proclaims in the jury room that a particular witness was clearly lying is no more likely to have correctly assessed the witness's veracity than anyone else on the jury. This result has profound implications for litigators in the courtroom, in that it is a very dangerous strategy to rely on a jury's ability to identify which witnesses are being truthful in order to win a case.

People are terrible at figuring out

when they are being told the truth and when they are being told lies. These same people are convinced that they are actually quite competent at discerning truth from lies; and there is no reason for the self-professed lie detectors to exhibit such confidence. This begs the question, “What are we doing wrong?” The answer, and the focus of this article, is that people regularly look to exactly the wrong indices of deception, such as those enumerated above.

With respect to the “look me in the

eye” test, it turns out that liars typically do a pretty good job of controlling their facial expressions while truth-tellers pay less attention to the emotional expressions associated with their speech.5 As such, focus on a speaker's face during message transmission actually reduces a listener's ability to tell whether she is being told the truth or lied to.6 Consider a typical witness stand—a low chair behind a tall screen, so that little more than the witness's face is visible. This is a terrible recipe for accurate deception detection by jurors. There are strategies, however, that can be used to increase the likelihood that jurors will recognize the veracity of an honest witness, and others that can improve the detection of deceptive testimony. These strategies comprise the bulk of the discussion below.

I. TRANSPARENCY AND TRUTH DETECTION

Over the years, psychologists and sociologists have conducted hundreds of studies aimed at exploring the ability of humans to distinguish honest messages from deceptive ones. It is important at this point to emphasize that, for our purposes here, a deceptive message is one that the bearer of the message (be it a job applicant, significant other, business associate or witness) believes to be false, but is delivered in a way intended to convince the recipient of the message that it is true. A truthful message, by contrast, is believed to be true by the speaker, who similarly attempts to convince the recipient that it is true. As such, this review does not cover mistakes, misremembrances, uncertainty on the speaker's part, exaggerations or expressions of overconfidence. All of these other forms of “falsehoods” are, of course, very important, both in everyday business dealings and litigation; they are, however, beyond the scope of this article.

Each message importantly involves two people: the sender and the receiver. The well-known philosophical question asks if a tree falls in the forest, and no one is around to hear it, does it make a sound?7 The philosophical question can be restated, for our purposes, in terms of whether a sound—or a message—that does not reach any listener can still have meaning. A great majority of the early studies of deception detection focused on the ability of the listener to discern truth from fiction. While there was some focus on the nature of the message—its subject matter , length, syntax, etc.—and how such things could affect deception detection performance, relatively little attention was paid to the role played by the speaker.

A. Demeanor vs. Transparency

Relatively recently, researchers began to ask whether it might be the case that certain speakers are just easier to read than others.8 Might it be the

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ability of the sender to convey trustworthiness, rather than any innate ability of the listener, that contributed to effective deception detection? This line of inquiry required further elaboration of what could be meant by terms like “credible” and “trustworthy.” Surely, a speaker who always came across as honest, even when she was lying, would not improve listener accuracy. Listeners would correctly identify her true statements but would always be fooled by her lies. By the same token, a speaker who seems to everyone to be “the lying sort” would have his deceptions detected (a good outcome), but would have a great deal of difficulty getting anyone to believe his honest statements (a bad outcome).

It became necessary, then, to distinguish between “demeanor” and “transparency.” Demeanor describes the level of trustworthiness a speaker conveys, regardless of the truth of his message. So, some people just come across as honest; others seem shifty. This is a description of demeanor. By contrast, a person is transparent if he seems trustworthy when he tells the truth and deceptive when he lies.9

Transparency can be thought of as a characteristic of a person, in that he is generally easy to read, or of a person in a particular context. For instance, a person might be very transparent in his communications with his spouse but nontransparent at the poker table.

B. Mr. Cellophane—It's all in your mind

From the perspective of the listener, we know that people are not very good at all at reading the cues to deception. Most people look to unhelpful cues and ultimately perform little better than chance when attempting to differentiate lies from truths. What's more, we have completely unrealistic expectations about our own abilities to perform this task. What then of the speakers who are sending the messages? Do they typically appreciate how convincing they are? Do witnesses know how

effectively they can lie? Or, how convincingly they can report the truth?

Recent research has revealed that we are not appreciably better at recognizing our own transparency than recognizing it in others. Gilovich, Savitsky and Medvec (1998) conducted a series of experiments aimed at exploring whether people have a realistic sense of their own transparency.10 In one experiment, students were placed in groups of 5 and all asked to answer the same question about their own personal experiences. In each round, one student was assigned to be the liar. After all five students had spoken their answers, the four truth-tellers were asked to identify the liar in the group and the liar was asked to estimate the percentage of other group members who would correctly identify him (or her) as the liar. By pure chance, the accuracy rate should have been 25% and the experimental result was 25.6%. Therefore, we can conclude that, at least under these conditions, the student subjects were not very transparent at all. By contrast, the mean estimate of transparency (percentage of my group members would identify me as the liar) was 48.8%. That is, subjects thought they were twice as transparent as they were.

The researchers were concerned that the overestimate of transparency might just stem from the general perception that lies are easier to spot than they really are. The team then ran a replication of the study with an important twist. Each subject was yoked to an “observer.” The observer knew whether his partner was a truth-teller or liar for each round but knew nothing more about any of the other players. Once again, participants overestimated their transparency (44.3% estimate of being pegged as the liar); however, the observers did not overestimate their partners' transparency (25.3% estimate of being caught lying). As a further check on this result, the researchers had each participant and his observer rate the “obviousness” of the participant's lie

on a 7-point scale, ranging from “not at all obvious” (1) to “very obvious” (7). Participants rated their own lies as a 3.0 on the obviousness scale, on average, while the average response from an observer partner was only 2.0.

These results have important implications for litigators concerned about witnesses lying on the stand during trial. While the general inability of jurors to correctly discern who is being honest and who is lying to them is extremely troubling, the concern would be somewhat mitigated by a belief that witnesses generally tell the truth under oath. In addition to deeply ingrained social norms against lying and a strong commitment to the integrity of the judicial system, we can add another reason to suspect that witnesses will be loath to lie on the stand: they think they'll get caught. The illusion of transparency can act as a deterrent (albeit a false one) to perjury.

C. In Search of Transparent Testimony

There might only be a small portion of the population who are fairly transparent throughout their lives, in that their lies are easily distinguishable from their truths across a wide range of circumstances. That is not to say, however, that most of us cannot be transparent under some circumstances. The question facing a trial attorney is how to increase transparency for witnesses on the stand. Is there some method of questioning that will increase the ability of jurors to identify both truthful witnesses as credible and dishonest ones as liars?

Levine, Shaw and Shulman sought to explore this very question.11 They hypothesized that asking subjects directly whether they were lying could lead to greater transparency than simply asking them the questions to which they might offer lies. It was not obvious that such an approach would increase transparency. Asking a liar about his lying puts him on notice of his veracity being scrutinized, thereby increasing his incentive to mask his insincerity. By contrast, the honest

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person could have a whole host of emotional responses to being accused of lying, some of which might be misinterpreted by listeners as some indication of dishonesty.

The researchers had subjects participate in a trivia game with a partner, ostensibly to explore issues of teamwork. The partner was a confederate who would encourage the subject to cheat on the trivia game. Following the game, each subject was interviewed briefly with three varieties of questions. Only two types of questions are relevant for our purposes here. Each subject was first asked rather innocuous questions about experience with trivia games and team exercises. At the end of the interview, each subject was asked pointedly whether anyone had cheated at the game. Each person who denied cheating was then asked if he was telling the truth. Finally, he was asked what his partner from the game would say about whether any cheating had gone on. All cheaters who confessed were excluded from the sample, leaving 22 subjects who cheated and then completely denied doing so during the subsequent interview.

The researchers matched these lying cheaters with 22 demographically similar subjects who played the game honestly and subsequently denied cheating (Happily, there were no false confessions). These 44 interviews were then edited into two distinct sets. The first set included only the background questions about trivia and teamwork. The second set included only the direct and strategic questioning about cheating and lying. The researchers then showed the 44 background interviews to 64 different subjects, asking each one to identify each interviewee as either a cheater-liar or an honest non-cheater. They showed the 44 direct and strategic interviews to a different group of 64 subjects and asked them to also identify each interviewee as either a cheater-liar or honest non-cheater.

Overall accuracy was 55.9%, very much in keeping with what has been

discovered in other studies—slightly better than chance. There was the expected truth bias, with listeners identifying 60% of interviewees as honest (despite only half of them being so). The key result, however, was the difference in success rate depending on interrogation method. The subjects who only saw background interviews only correctly distinguished cheaters from non-cheaters 44% of the time. On the other hand, the ones who watched the direct and strategic interviews had a 68% accuracy rate. Cross-examination very substantially increased witness transparency.

The results further supported the hypothesis that transparency of the message sender is a greater contributing factor to successful deception detection than is the judging skill of the listener. For those judges who watched the background interviews, 85% of them had a success rate between 30% and 50%. That is, almost everyone was pretty mediocre. The group who watched the direct interviews performed better but had similarly homogeneous success, with 85% of them correctly distinguishing cheaters from non-cheaters between 60% and 80% of the time. Some of the speakers, however, proved to be extremely transparent while others were completely confounding. 9% of the speakers were incorrectly identified as cheaters or non-cheaters more than 80% of the time when only their background interviews were observed. On the other hand, among those whose background interviews were watched, 9% were so transparent that they were correctly classified more than 80% of the time. This variation in transparency carried over to the direct/ strategic interviews, as well. One quarter of the speakers were misclassified more than half the time even when facing direct interrogation. On the other hand, more than a third of the speakers were correctly identified as cheaters or non-cheaters by more than 80% of listeners after watching their direct interrogations.

These results bring with them two very important lessons for litigators. The first is that witnesses vary a great deal with respect to their inherent transparency. The best way to ascertain whether a witness is transparent is to subject a simulation of their testimony (or a clip from a deposition) to a focus group for reaction. In addition to asking for general ratings of credibility and honesty, it would be wise to ask respondents to evaluate the truthfulness of specific key statements related to the central themes of the case. When it really counts, will jurors believe your witness? For an adverse witness, will jurors detect false statements? Will they dismiss even true ones? Assuming that your trial team knows which statements are true and which are false, it will be possible to differentiate between a witness's demeanor and her transparency. One aspect of this is worthy of mention. Just as we are very poor evaluators of veracity, but think we are much better than we are, I would strongly counsel attorneys not to assume that they can easily discern themselves whether a witness will be transparent or not. Don't take a chance that your coin •ip turned out wrong—go test out reaction to any key witness to confirm that jurors will react to testimony as you expect they will.

The second important lesson is that direct and strategic interrogation can increase witness transparency. Note that this was true even for subjects who did not cheat and were honestly denying the accusation of having done so. Therefore, while a tough cross-examination will increase the likelihood that jurors will detect deceit from an adverse witness (no real surprise), asking your own witness to confirm that she is telling the truth can actually increase the likelihood that jurors correctly identify her as being honest. There is an important caveat here. Because transparency varies across speakers, direct and strategic questioning will not uniformly improve juror judgments of veracity. For some witnesses, it will be very effective, while

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for others, it might not make much of a difference.

II. IMPROVING LISTENER PERFORMANCE

Given the very poor performance of experimental subjects in deception detection studies, researchers have turned their attention to identifying what it is, if anything, that observers do wrong that causes them to so poorly distinguish truth from fiction. If we understand better the errors we make, it might be possible to develop strategies for improving accuracy in distinguishing truths from lies.

A. The Wrong Cues

As noted above, many common beliefs about how liars behave differently from truth tellers turn out to be counterproductive. That is, they are misconceptions. Many of these misconceptions are related to facial expressions.

A liar will not look the listener in the eyes. Liars always look up and to the left. A liar will suffer from dry lips and mouth, and will therefore lick his lips more. Liars blink a lot. Someone who is lying will have a facial tick. All of these are regularly listed by people as things to look for when trying to figure out who is lying.12

A person who is motivated to lie, however, will do his very best to control the kinds of behaviors that are likely to be interpreted by his audience as signs of dishonesty. In fact, a person who is trying to deceive might control such mannerisms much more closely than someone who knows he has nothing to hide. As such, focusing on the face of the speaker might just be counterproductive for detecting deception.

Zuckerman, et al. addressed this concern in a meta-analysis that reviewed many deception detection studies, focusing on listener performance as a function of what the listener could see and hear.13 The results were quite intriguing. Being able

to hear the speakers words definitely improved performance in lie detection over watching silent footage of the speaker. The ability to see the speaker's body was also somewhat helpful. By contrast, being able to watch the speaker's face during the delivery of the message actually reduced the ability of the listener to discern whether he was being lied to. The speaker's face proved to be an unhelpful distraction. Listeners have a tendency to focus on the one part of the speaker that liars control better than truth-tellers.

There are two straightforward strategies to overcome this failure in the way people try to distinguish truth from fiction. The first is to get listeners to focus on more productive cues. The second is to disrupt the ability of liars to control their facial reactions while testifying.

B. Leakage: Break the Dam

Paul Ekman and his collaborators pioneered an approach to deception detection, focused on exploiting the psychological effort required to control one's emotions while lying.14 The underlying theory suggests that it is more taxing for a person to represent a statement as true if it is, in fact, a lie, than if it were actually true. The speaker has to keep the lie straight and consistent, control tone and maintain composure. All of the studies cited to this point suggest that liars actually achieve these ends quite easily. Ekman and his team, however, suggested that there must be ways to detect the stress on the speaker created by having to maintain a lie.

These researchers discovered that people who are trying to remain stoic and unreadable (non-transparent) tend, nonetheless, to reveal their true emotional states through their facial expressions, but only for microseconds at a time.15 That is, we tend to leak our true emotions. The problem from a deception detection standpoint, however, is that these leakages, refer red to as micro-expressions, are so brief that most people miss them completely.

Ekman and some of his colleagues have developed training techniques to teach people to detect micro-expressions during interrogations, interviews and testimony.16 There is great variation in the effectiveness of this training, from person to person, but it can improve micro-expression detection accuracy quite profoundly for some people.17

While these results are theoretically fascinating, they do not provide much to be used in litigation from a practical standpoint. Litigators are not permitted to subject jurors to micro-expression detection training, even were the lawyer or his client willing to pay for it. The Court will not allow counsel to record testimony and play it back in court in super-slow mot ion so that each micro-expression can be pointed out to the jury. In addition, the researchers who have pioneered this work are very careful to point out that emotional leakage is not a direct indicator of lying. Such leakage indicates only that there is a disconnect between the speaker's true emotional state and his spoken message. There could be many reasons other than dishonesty for such an incongruity, however, such as fear, nervousness, embarrassment or uncertainty.

A crafty litigator then needs to find strategies for converting micro-expressions into more easily detectable facial cues. That is, the litigator wants to increase the emotional transparency of the witness. This brings us full circle to the topic covered above. According to the research of Ekman and others, the reason that strategic questioning increases transparency, as reported in the Levine, et al. article, is that such direct and accusatory questioning maximizes the strain on the witness attempting to keep his true emotions in check. These tactics increase leakage to the point where at least some observers detect the speaker's true emotional state.

Another method of increasing emotional leakage is to force the speaker to multitask. The theory underlying this tactic is that increasing

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the cognitive load on the speaker will make it more difficult for him to focus his attention on maintaining his composure.18 Vrij and his collaborators discovered that forcing a speaker to engage simultaneously in another task while speaking increased the ability of listeners to distinguish true statements from falsehoods. It is also possible to increase the cognitive load by interrupting the speaker's message and forcing him to stop and restart.

This result is encouraging for litigators who are concerned about witnesses lying on the stand. In court, it is wise to make the witness examine a document or other exhibit during testimony. Even better, have the witness come down from the witness stand to demonstrate something to the jury. All of these tactics serve to disrupt the flow of the witness's narrative, which will make it more difficult to control emotional leakage.

C. Redirect isn't only for witnesses

While distracting the witness can increase his transparency, distraction can also help improve the perceptiveness of jurors. When left to their own devices, jurors naturally focus on the face of the witness on the stand, a strategy that we have learned works to the detriment of deception detection. How then is an attorney to get jurors to focus on the elements of testimony that more reliably reveal the truth of the matter? One of the results discussed in the first article related to the medium used to convey a message. Research revealed that people more accurately detected truth in phone calls than in face-to-face interactions.19 This is consistent with what we have learned about the deceptiveness of facial expressions. The key then for the trial attorney is to get jurors to listen to testimony, rather than watch it.20

This provides an opportunity for the strategic use of demonstrative exhibits at trial. If a litigator is concerned that a witness will attempt to mislead the jury, that litigator should provide the jurors with something to

look at other than the witness's face. Put a chart on the screen and leave it there while questioning the witness on the crucial detail about which veracity is in doubt. Hand out copies of a document to the jurors while asking the witness the key question. While the jurors are busy passing paper and reading the document title, they will still be listening to the witness. These distraction techniques, aimed at the listener rather than the speaker, have been shown to improve deception detection performance.21

III. LESSONS FOR EMPLOYMENT LITIGATION

The lawyer engaged in an employment case faces a troubling starting point. These cases very often involve conflicting accounts of events and conversations without much supporting documentation for either position. Only very late in the game does an employee (or former employee) reflect back on his experience with a company and decide that he was treated in a way that he contends is unlawful. While events were transpiring, it never occurs to him to keep records or share his stories with others. By the same token, his supervisor hears no complaints and feels no need to document any interactions with the employee. It all feels like business as usual. So, when things turn sour and litigation is in the picture, jurors find themselves confronted with a classic he said/she said scenario. One party (or both) might choose to lie during testimony about certain facts. The litigator would like to be able to rely on the common sense of jurors to separate the truth from the lies. Alas, research has shown time and again that we humans are uniformly terrible at evaluating whether we are being lied to.

Employment cases do not take place in a vacuum, however. They often raise emotional issues, increasing the likelihood that witness testimony will reflect honest witness attitudes. Fear of being “found out” is sufficient to deter most witnesses from lying on the stand, especially in the presence of

so much supporting documentation and testimony from other witnesses. Witnesses are likely to feel substantially more vulnerable to lie detection than is warranted, but that is a good thing in this context. Attorneys also have an opportunity during voir dire to ferret out those potential jurors who seem overly confident in their own evaluative capabilities.

The research discussed in these two articles serves two primary purposes. The first is to tell a cautionary tale about relying on deception detection among jurors to win your case. As a general rule, don't do it. The second purpose is to share some of the strategies that have been uncovered through subsequent research that can increase the likelihood that jurors will correctly spot the liars on the witness stand—and equally importantly, spot the honest witnesses.

Through strategic forms of questioning, well-timed presentation of exhibits and a focus on message content, it is possible to increase the likelihood that a jury's verdict will result from deliberations over the true facts of the case.

NOTES:

1 DePaulo, B. M., Lindsay, J. J., Malone, B. E., Muhlenbruck, L., Chalrton, K., & Cooper, H. “Cues to deception,” Psychological Bulletin, 129(1), 74-118 (2003).

2 The companion piece, “He Said What?”: Deception Detection and Employment Litigation — Part I: The Gullibe Juror,” appeared in the February/ March 2014 issue of HR Advisor.

3 Bond, C. F., & DePaulo, B. M. “Accuracy of deception judgments.” 10 Personality and Social Psychology Review, 214–234. (2006)

4 See Vrij, A., Granhag, P. A., & Porter, S. “Pitfalls and Opportunities in Nonverbal and Verbal Lie Detection.” 11 Psychological Science in the Public Interest, 89–121. (2010).

5 See Vrij, A., Granhag, P. A., & Porter, S. (2010).

6 Warren, G, Schertler, E and Bull, P., “Detecting Deception from Emotional and Unemotional Cues,” 33 J Nonverbal Behav 59–69 (2009).

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7 George Berkeley, “A Treatise Concerning the Principles of Human Knowledge,” 1734. section 23. Berkeley's formulation was slightly different. The first appearance of the common phrasing of the riddle appeared in a physics textbook in the early twentieth century: Mann, Charles Riborg and George Ransom Twiss. Physics. Scott, Foresman and Co., 1910, p. 235.

8 See Levine, T.R., “A Few Transparent Liars,” Communication Yearbook, 34 (2010) for a review and articulation of the theory that any performance above simple chance in truth detection is the function of having a small number of “easy-to-read” liars in the population.

9 See Levine, T.R., Shaw, A. and Shulman, HC, “Increasing Deception Detection Accuracy with Strategic Questioning,” 36 Human Communication Research, 216-231 (2010) for an excellent treatments of the distinction between demeanor and transparency.

10 Gilovich, T, Savitsky, K, and Medvec, V.H., “The Illusion of Transparency: Biased Assessments of Others' Ability to Read One's Emotional States,” 75 Journal of Personality and Social Psychology, 332–346 (1998).

11 Levine, T.R., Shaw, A. and Shulman, HC, “Increasing Deception Detection Accuracy with Strategic Questioning,” 36 Human Communication Research, 216–231 (2010).

12 Vrij, A. (2008). Detecting deceit and lies: Pitfalls and opportunities. West Sussex: Wiley. See also Vrij, A., Granhag, P. A., & Porter, S. (2010) for an excellent treatment of verbal and non-verbal cues to deception.

13 Zuckerman, M., DePaulo, B. M., & Rosenthal, R. (1981). Verbal and nonverbal communication of deception. In L. Berkowitz (Ed.), Advances in experimental social psychology. New York: Academic Press.

14 Ekman, P., O'Sulivan, M., & Frank, G. M. (1999). A few can catch a liar. Psychological Science, 10, 263– 266.

15 There are seven universal facial expressions that are easily identified by virtually all humans, even babies. They are: fear, joy, anger, surprise, sadness, contempt and disgust. If we could watch speakers in super-slow motion, we would all be able to detect their true emotional states without much problem.

16 David Matsumoto, Ph.D., Hyi Sung Hwang, Ph.D., Lisa Skinner, J.D., and Mark Frank, Ph.D., “Evaluating Truthfulness and Detecting Deception,” in FBI Law Enforcement Bulletin (June, 2011).

17 On a personal note, I attended a two hour training program conducted by David Matsumoto and discovered that I was remarkably proficient at identifying micro-expressions by the end of the session. I had no idea, however, how I was so successful. It felt very much like I was guessing, despite my 83% accuracy rate. This factoid is interesting in light of the result, reported in the last article, that confidence in deception detection is not at all correlated with actual acumen at doing so. It

turns out I was talented (at least at this part of it) but had no confidence in my own ability.

18 Vrij, A, Fisher, R., Mann, S. and Leal, S, “Detecting deception by manipulating cognitive load.” Trends in Cognitive Sciences, 10 (4). pp. 141–142 (2006).

19 See generally, Hancock, J., Thom-Santelli, J., & Ritchie, T. “Deception and design: The impact of communication technology on lying behavior,” In E. Dykstra-Erickson, & M. Tscheligi (Eds.), Proceedings of the 2004 conference on human factors in computing systems, 129–134. (New York: Association for Computing Machinery, 2004), as well as, DePaulo, B. M., Kashy, D. A., Kirkendol, S. E., Wyer, M. M., & Epstein, J. A. “Lying in everyday life,” 70 Journal of Personality and Social Psychology, 979–995 (1996).

20 See Vrij, A., Granhag, P. A., & Porter, S. “Pitfalls and Opportunities in Nonverbal and Verbal Lie Detection.” 11 Psychological Science in the Public Interest, 89–121. (2010)

21 It is important, of course, not to distract the listener so much that he does not hear the words being spoken by the witness.

Edward P. Schwartz is a Consultant in DecisionQuest’s Boston office. Dr. Schwartz provides quantitative and qualitative analysis of pretrial jury behavior – from interviews and focus group studies to mock trials and large-scale statistical analyses – to provide clients with feedback on case themes, strategies, evidence, witnesses, and presentation style. Further, he consults on case evaluation, provides advice on trial strategies, and assists with jury selection as well as post-verdict juror surveys and interviews. Dr. Schwartz is a nationally recognized jury consultant with excellent analytical acumen and strong market research skills who is noted for his ability to blend the strategic focus of game theory and decision theory with the real-world insights of social psychology to gain a complete picture of how people absorb, analyze, and process information.

Reproduced with permission: HR Adviser: Legal and Practical Guidance (Thomson Reuters), Vol. 2 (2), pp. 7-18, March/April 2014