Timely warning about subjective judgment of witnesses
This extract from a article published in the Sydney Morning Herald by Tom Dick serves well to remind investigators not to attach too much importance to "body language" during interviews. Of course good factual investigators do not mention subjective matters such as body language, or "delivery" in their reports and instead rely wholly on the evidence, the hard evidence recorded in a statement and signed.
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"Court out: how slip of tongue meant justice wasn't done
GARRY COOMBE'S downfall was his stutter. Charged with assaulting his wife, his speech impediment in court was mistaken for dishonesty. He was convicted after the magistrate did not believe his evidence because there was "a noticeable tremor in his voice".
Fear of stammering caused him to pause before replying so that he could think of words that were easier to pronounce.
The conviction was overturned on appeal, but a Supreme Court judge, Peter McClellan, yesterday used that example to warn magistrates at their annual conference of the perils of cross-examination.
Research showed that attractive, confident and likeable witnesses were more likely to be believed than timid, unattractive or unsavoury ones, and a truthful witness's demeanour may lose out to a liar's smooth delivery.
Justice McClellan pointed to a study that found judges and lawyers do no better than others in detecting deception.
"These studies suggest that credit may not necessarily be given where credit is due," he said.
He suggested that changes in a witness's demeanour while being cross-examined may be more reliable, and warned magistrates of the fallibility of memory. "We rely on our memories on a day-to-day basis and the thought that other people's memories might not be accurate sits uneasily with the faith we have in our own recollections," he said.
But memories deteriorate with time, and may be altered by other factors. "The most troubling aspect of memory - be it a child's memory or an adult's - may be its venerability to suggestion," he said.
In one study, 29 per cent of students who were told a man had walked into their class identified a man as having done so, despite seeing no man at all. Another showed that the likelihood of falsely remembering broken glass after watching a taped car crash increased when questions used "smashed" instead of "bumped".
Justice McClellan said that while adversarial trials remained effective, decisions had to be made knowing there were pitfalls. "Our objective must be, wherever possible, to ensure that the perceived truth is the real truth."
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I consider myself a well experienced investigator and have done thousands of factual investigations, but I must be honest to admit that I too did many, many times make certain judgment, gained certain "confident" impressions, about witnesses during interviews and this did influence me at times in the manner in which I'd conduct an interview.
I was wrong most of the time in my assessment of a witness's demeanour, body language, delivery, even appearance.
I would often find out that the "suspicious character" I interviewed actually turned out to be honest. And then likeable person was the liar. It prompted me to make it a rule for myself from the early years to avoid my subjective judgment and concentrate on the facts of the case. And I was very strict never to mention in my reports anything other than the facts.
Sure, everyone gets "a feel" for a case, but keep that under your hat and pursue your investigation without bias as far as possible. Our duty is not only to our client, but to the subject of the investigation to deal with him fairly and professionally.
Michael Hessenthaler