Newspaper article The Canadian Press

Furtive Looks, Nervousness, Hesitation: How Nonverbal Communication Influences the Justice System

Newspaper article The Canadian Press

Furtive Looks, Nervousness, Hesitation: How Nonverbal Communication Influences the Justice System

Article excerpt

Furtive looks, nervousness, hesitation: How nonverbal communication influences the justice system

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This article was originally published on The Conversation, an independent and nonprofit source of news, analysis and commentary from academic experts. Disclosure information is available on the original site.

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Author: Vincent Denault, Candidat au Ph.D. en communication et charge de cours, Universite de Montreal

Pauses in answers, body movements, elusive or angry looks, confusion, anxiety -- the facial expressions and gestures made by witnesses matter in court. Conclusions about the credibility of witnesses can hang on their nonverbal behaviour.

Messages beyond words

Nonverbal communication generally refers to messages conveyed through means other than words, whether via facial expressions or a person's gestures. A multitude of other factors (appearance, distance between individuals, touch) can also come into play and exert influence.

The role of nonverbal communication has been documented by a large international community of scientists. Since the 1960s, thousands of peer-reviewed articles have been published on the subject. In some contexts, its role may be more significant than in others.

According to the Supreme Court of Canada, "credibility is an issue that pervades most trials, and at its broadest may amount to a decision on guilt or innocence." For example, in the absence of other evidence such as videos, photos and documents, a trial judge's decision to give more or less weight to the words of one person over another can be based on their credibility.

But how is this credibility determined? Nonverbal behaviour can be a decisive factor.

Judges consider nonverbal cues

The Supreme Court of Canada states that a trial judge "can take into account the significant pauses in the responses, the changes in facial expression, the looks of anger, confusion and concern." He or she may consider the facial expressions and gestures of witnesses. In other words, findings on the credibility of witnesses can be closely linked to their nonverbal behaviour.

Furthermore, according to the highest court in Canada: "An appellate court should, apart from exceptional situations, refrain from interfering with those findings," in particular because it cannot hear and see witnesses.

In practice, the consideration of the nonverbal behaviour of witnesses at a trial raises concerns. As I wrote in 2015, "attention paid to nonverbal behaviour by many decision-makers has little or no clear connection with scientifically validated and recognized knowledge."

In addition, various studies published in peer-reviewed journals have highlighted inaccurate beliefs held not only by the general public, but also, and perhaps more importantly, by professionals in the justice system such as police, prosecutors and judges. Gaze aversion, for example, is regularly associated with lying. However, neither looking away nor any other nonverbal behaviour (or combination of nonverbal behaviours) is a reliable sign of lying.

However, if judges believe in good faith that someone who does not look them in the eye may be dishonest, or that another who looks them in the eyes is necessarily honest, then it could result in a sincere individual being (wrongly) considered a liar and vice versa.

Worse, if a behaviour that is (wrongly) deemed suspicious is observed in the very first minutes of a trial, it may distort the assessment of evidence that is subsequently presented. The consequences can be significant. The same is true if judges believe in good faith that a facial expression is a way of determining whether someone is remorseful. As Emeritus Professor of Law Susan A. Bandes points out: "Currently, there is no good evidence that remorse can be evaluated based on facial expression, body language, or other nonverbal behavior. …

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