“He Said What?”Deception Detection in Litigation

Edward P. Schwartz, Ph.D., M.S.L.

DecisionQuest

Presented to the LCA Renaissance Symposium

December 5, 2014

Will Jurors Believe a Witness?

“My guy is a

really credible

witness.”

“The jury is

going to see

right through

her.”

“He is so

obviously full

of B.S.”

“My expert

comes across

like a Boy

Scout.”

“She presents

as very

earnest.”

“What a

slimeball!”

How well do people differentiate truth from lies?

Standard methodology:

Create a situation where some speakers are motivated to lie (or exploit pre-

existing ones)

Expose listeners to an equal mix of true and false messages.

Ask each listener to identify each message as true or false.

Meta-analyses

Aggregate results across hundreds of studies

Analyze data for statistical effects of speaker, listener, message and

environmental characteristics

How well do people differentiate truth from lies?

Baseline success rate in studies where ½ of messages are lies:

Digging Deeper

Truth Bias

Respondents typically identify about 2/3 of statements as being true.

Myriad cultural, anthropological, evolutionary reasons why truth bias would

evolve.

Correctly identify about 65% of true statements.

Correctly identify only about 44% of lies.

Lie Bias

When statements are denials, there is a lie bias instead.

Important implications for trial strategy.

Accusations generate suspicious minds

In Search of Human Lie Detectors

Professionals do not perform any better than ordinary folk.

Psychologists, law enforcement, social workers, judges

Most training techniques don’t seem to help.

There are a handful of naturally gifted lie detectors but most

people are quite terrible.

Some training on “micro-expressions” and “leakage” does

improve recognition of hot spots.

The Overconfidence Problem

We generally believe we are better at discerning truth from

fiction than we actually are.

Those who believe they are good at is aren’t any better than

those who don’t. (Correlation: 0.04)

This is a recipe for a false expert to hijack your next jury.

Somewhat akin to the witness ID problem.

Have we been looking at this backwards?

Demeanor vs. Transparency

Maybe the action is on the speaker side of the equation.

Subsequent studies showed much more variance in how

easily speakers were read than how accurately listeners

identified deception.

Some speakers were misread over 80% of the time while

others were pegged correctly over 90% of the time.

Talk about a gender gap!

Male Listeners Female Listeners All Listeners

Speaker Correct Incorrect Correct Incorrect Correct Incorrect

Lying Men 26% 74% 25% 75% 25% 75%

Truthful Men 46% 54% 55% 45% 53% 47%

All Men 37% 63% 41% 59% 40% 60%

Lying Women 57% 43% 54% 46% 55% 45%

Truthful Women 76% 24% 84% 16% 81% 19%

All Women 67% 33% 68% 32% 67% 33%

All Liars 42% 58% 41% 59% 41% 59%

All Truthful 60% 40% 69% 31% 67% 33%

All Speakers 52% 48% 55% 45% 54% 46%

Takeaways from Gender Study

Women are:

Trusting (truth bias)

Transparent (especially when truthful)

NOT simply credible

Men are:

Somewhat less trusting

Opaque (both as liars and truth tellers)

Descriptively Deceptive

Why are we so bad at this?

The problem is that we focus on all the wrong cues:

• Eye Contact

• Nervousness

• Blinking

• Laughter

• Hesitation

• Fidgeting

Transcript Only: 0.70 Tone Only: 0.20

Entries are in Standard Deviation Units

Visual Cues

Face/BodyFace/No

Body

No

Face/Body

No Face/

No BodyMeans

Auditory

Cues

Speech 1.00 0.99 1.49 1.09 1.14

No Speech 0.35 0.05 0.43 0.00 0.21

Means 0.68 0.52 0.96 0.54 0.68

Auditory and Visual Cues of Deception(Zuckerman, DePaulo and Rosenthal, 1981)

Strategies to Increase Witness Transparency

• Disruption

• Distraction of the witness

• Distraction of the Jurors

• Focus on language

• Multitasking

• Confrontation regarding veracity

• Test the witness in advance