By: Betsy Powell City Courts reporter, Published on Mon Apr 29 2013
The Toronto Star
Can you tell if a person is lying if they avert their gaze, turn red, or blink a lot?
No, says a Muslim woman who a judge has ordered to remove her niqab to testify in an historical sex assault case.
Last week, Ontario Court Justice Norris Weisman ruled she must uncover her face when testifying at the long-delayed preliminary inquiry that was supposed to start Monday. That hearing is being adjourned because the woman’s lawyer, David Butt, is asking a Superior Court judge to overturn Weisman’s landmark ruling.
Butt says before arriving at his decision, the judge should have considered the opinion of Jonathan Freedman, a University of Toronto psychology professor. Butt unsuccessfully sought to have Freedman qualified as an expert on the “social science” and “state of knowledge around detecting honesty through facial expressions.”
Freedman prepared an eight-page report for Butt called: “Are facial features and movements helpful in detecting lying?” It’s based on his review of dozens of studies and articles with titles such as “Discerning lies from truths;” “Few can catch a liar;”“Face, voice and body in detecting deceit,” and “Blinking during and after lying.”
In his report, Freedman concluded that while people think they can detect lying from demeanour, “all of the evidence is that they cannot do this much above chance. Most relevantly, people think they can detect lying from facial expressions, but they cannot,” he wrote. There is some evidence, that “professional lie catchers, (e.g. FBI, CIA) do somewhat better, but their performance is quite variable,” he wrote.
In fact, Freedman found some evidence that relying on facial cues may actually reduce overall accuracy. “This seems to be because many people have intuitive or learned beliefs about facial cues that are incorrect or only sometimes correct,” he wrote.
Gaze aversion, for instance, has different meaning to different cultures. “In particular, most white Canadians tend to perceive those who avert their eyes as shifty or dishonest, whereas in most Aboriginal communities in Canada, direct eye contact is seen as rude and aggressive and gaze aversion is seen as respectful, especially to authority.”
Toronto defence lawyer Nathan Gorham, who is not connected to the niqab case, read Freedman’s report. Gorham said his conclusions appear to be based on research where “people watch someone . . . tell a story or recount an event and then they try to determine if they’re lying or telling the truth by visual cues or facial reactions.”
That’s very different than watching a witness being confronted “with things they didn’t want to be asked, or confronted with contradictions or pieces of evidence they didn’t necessarily see coming,” Gorham said.
“Sometimes you get somebody who might get angry, other times you have somebody who has a sheepish look, where you can sort of see the blood rush up to their face, sometimes there’s a ‘deer in the headlights’ look in their face.”
Gorham recalled confronting a sexual assault complainant with the fact that his client had videotaped the pair having sex that was obviously consensual. “There was a palpable look of ‘oh, no,’ fear in her face,” he said. The Crown withdrew the charge.
Butt, for his part, says cross-examination is either about the content of evidence — which is not affected by a niqab — or an assessment of the witness’s demeanour. For a witness in a niqab that assessment will be either unreliable for the reasons the studies suggest, or concentrated on details not affected by the headgear — tone of voice, body language, etc.
Frank Addario, who argued the niqab case on behalf of the Criminal Lawyers Association, thinks most defence lawyers would oppose witnesses wearing veils in cases where witness credibility is key, such as in many sex assault cases.
“This is not based on narrow thinking of course, but just old-school belief in the value of demeanour,” which most lawyers rely on. “I also think that if asked by a client whether she should wear her niqab while testifying, most defence counsel will say that the judge or jury is going to think you have not really had your credibility tested.”
That’s not always essential in a court case. During the trial of Richard Kachkar, a receptionist at the medical clinic where he sought treatment the night before his snowplow rampage, killing Toronto police officer Ryan Russell, testified wearing her burka.