By Drake Mountfort-
Judges have long tried to use a person’s body language and demeanour in judging their credibility. They are often quick to emphasise that this practice is only intended to be an aid, and never a substitute for a rigorous analysis of the evidence in a case.
But is it ever safe for a court to try to read faces and does the attempt risk inviting prejudice and quackery through the back door?
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For an example of how ingrained face-reading is in our courts one only need to look at a recent judgement from the President of the Family Division, Sir Andrew McFarlane in Re P (A Child: Remote Hearing) 2020 EWFC 32
One only need to look at a recent judgement from the President of the Family Division, Sir Andrew McFarlane in Re P (A Child: Remote Hearing) 2020 EWFC 32. The hearing was one which was intended to take place by video link at a time when the spread of Covid-19 was near its peak.
For one of the most conservative of professions, where court dress includes wigs, and where technical jargon is in Latin, the growing practice of trial by Skype was incongruously modern. But judges quickly began complaining that the new technology obscured one of their long-standing roles – to properly scrutinise the appearance and demeanour of those who call on the court.
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In the case of Re P, Sir Andrew McFarlane refused to hold a video-link trial The case involved a mother who stood accused of that rare form of child abuse in which a child’s symptoms of illness are said to be fabricated or induced by the parent.
One reason the hearing was put off was because it was considered crucial that the judge should be able to see the expressions and body language of the mother, not only while she was giving evidence, but while she was sitting in the well of the court and reacting to the evidence against her: the postage stamp version of the mother on Skype was too small for that purpose.
Many might have been concerned by the importance placed on the witness’s demeanour in that case. Facial expressions – the curling of a lip, the raising of an eyebrow, perhaps what sometimes appears to be the near absence of any visible emotion whatsoever in a witness – undoubtedly communicate powerful thoughts and emotions. Whether a judge is reliably qualified to attempt to read those expressions, is however much less clear.
The Roman goddess Justitia is often depicted holding the scales of justice blindfolded. The statute atop the Old Bailey, like the Roman incarnations, carries scales and sword with her eyes uncovered. It is perhaps, consistent with our long history of judging with them open.
Demeanour
An early reference to assessing demeanour is found in a commentary to the papyrus Ayur-Veda, dating from around 600 BC. Dealing with poisoners, it is written that the accused gives himself away if he shivers, rubs his toe along the ground, or touches the roots of his hair with his fingers.
The classical world has long been too sensitive to the link between inward thought and outward appearance. Aristotle noted that those who blinked too often were indecisive. The actor Sir Michael Caine, has said that if he plays a ‘strong’ character on screen, he never blinks while the camera rolls. His director must blink for him, by cutting the scene. Anyone who seeks to sway a jury should take note .
Confidence
Research suggests that jurors equate credibility with confidence, despite the fact that habitual liars may fidget and blink less precisely for this reason. But there are fixed aspects of our appearance over which we have no control. When Cesare Lombroso published ‘L’uomo deliquente’ (‘the Criminal Man’) in 1876, the practice of physiognomy was at its height.
His theory that criminality, as an inherited genetic trait, could be identified by physical features such as heavy jaws or a sloping forehead can be seen in the antagonists of much of 19th century fiction.
Lombroso identified genius and insanity using similar principles; arguing that George Eliot’s ‘masculine’ face and big skull was evidence of what he described as both her genius and degenerative traits. Lombroso’s methods were eventually discredited in his own lifetime. His views were savaged in Leo Tolstoy’s Resurrection.
In Joseph Conrad’s ‘The Secret Agent’, in which much is written about what can be read in a face, the anarchist Karl Yundt declares that “Lombroso is an ass”.
Yet, while the practice of judging character by the immutable structure of a face is now seen as pseudo-science, faith in our ability to read secrets in its changing expressions survives. The difference between the two endeavours is not, however, always clear. When The Secret Agent’s Ossipon speaks with the explosives expert known only as the Professor, the latter asks him why he is “making that face”. “I am not making a face” Ossipon replies.
Judges rarely allude to the principles by which they read faces. Last year, Lady Hale, the former president of the Supreme Court, defended courts which directed Muslim women to remove their veils, stating it was important a judge saw a witness’s facial expressions when she spoke.
Lying
Lady Hale said she had, herself, once directed a litigant to remove a facial covering and had consequently seen that the woman was at times ‘obviously lying’. However, the former Supreme Court president went no further to reveal what exactly she had seen beneath the veil.
In a judgement delivered last year, Hayden J noted that a mother, who had been identified from of a pool of possible perpetrators as the killer of her daughter, did not during the trial “permit herself to cry”.
The father and uncle had by contrast both been “visibly, and indeed intensely distressed”. Had that played any part in Hayden J’s reasoning? His judgment is like many in which references to witness demeanour are made. One looks through a glass darkly to see what role, if any, was played by tears, hesitations, or the accused’s lack of visible emotion.
When judges have been more explicit in their analysis of a witness’s demeanour, they lay themselves open to charges of foolishness or worse – an appeal. A judge who refused a gay asylum seeker’s appeal on the basis that he did not have the ‘demeanour’ of a gay man, had his decision swiftly set-aside last summer.
Dangerous
There is increasing disquiet amongst some parts of the judiciary that the whole exercise of assessing demeanour is not only futile, but dangerous. Lord Leggatt, who was sworn into the Supreme Court earlier this month, once observed that judges would do well to heed the growing scientific evidence that ordinary people cannot make effective use of demeanour in deciding whether or not to believe a witness.
In SS (Sri Lanka) v The Secretary of State for the Home Department (2018) he warned that:
“to attach any significant weight to such impressions in assessing credibility risks making judgments which at best have no rational basis and at worst reflect conscious or unconscious biases and prejudices”.
Lord Leggatt’s words call to mind some of those who spoke out against Lombroso’s theories of physiognomy, but recent judgments show that attempted assessments of body language and demeanour continue in earnest as an important part of judging.
Judges who attempt to assess demeanour will always say that the practice is only for the purpose of assisting a judge, perhaps one wavering upon a borderline decision after considering the evidence.
The real question, however, is whether it is ever legitimate for a judge to try and ‘read’ an individual’s facial expressions and body language, and let such techniques influence their judgements.
Facial Expressions
Judges are neither dating coaches nor FBI interrogators: reading the subtleties of body language and facial expressions is not a discipline on which they receive any formal training. Perhaps this is for good reason – in light of the available research, one wonders whether anyone – outside of fictionalised police dramas – can in fact read facial expressions with the accuracy and reliability that it would be fair to use or refer to such ‘evidence’ in court.
When court buildings reopen and physical hearings resume, perhaps courts – like trains, supermarkets, or other crowded places – should carry a health warning: wear a mask. But some judges will surely object.
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