By Dr. Ken Broda Bahm:
On a number of occasions, I’ve been told confidently by mock jurors that they can tell a witness is lying because the witness looks up and to the right while testifying. That is a great reason not to look up and to the right while testifying, but is that actually an accurate “tell” on deception? Turns out it isn’t, according to a current study (Wiseman et al., 2012). The belief that eye movement toward the upper right quadrant of your field of vision indicates dishonesty is part of a perspective called “Neuro-Linguistic Programming” or “NLP.” The school of thought is the brainchild of Richard Bandler and John Grinder, and is based on the idea that our neurology (“neuro”) and our language (“linguistic”) is reflected and determined by patterns of behavior and goals (“programming”). Like many of the psychological ideas and perspectives to emerge in the Seventies, its popularity exceeded its empirical support. After being taught for more than 30 years, a study finally put the eye movement belief to the test, and found that liars didn’t tend to look up and to the right, and individuals trained in spotting that movement fared no better than chance at detecting lies.
There is a lesson in this for litigators and it goes beyond eyes and lies. That lesson is to be skeptical of popular scientific claims. Many of those who help attorneys to understand jurors and refine their messages for trial, including me, are applying various ideas gleaned from the psychology of human communication. And it is in the nature of the “big theories” that they are looking for some kind of magic — a hidden key that will unlock the path to surefire understanding and influence. But communication itself tends to be a lot more subtle, contextual, and complex. After taking a look at the recent study, this post will step back to focus on the broader message of reasonable skepticism that litigators and other consumers of psychological ideas need to apply.
Turns Out, You Can Hide Your Lyin’ Eyes
Taking a look at the chestnut of the Neuro-Linguistic Programming, a group of researchers from the UK (Wiseman et al., 2012) put the belief that deceivers look up and to the right to the test. In the first study, they monitored the glance direction of participants as they made a mix of true and false statements. They found that glance direction bore no relationship to whether the statements were true or false. In a second study, they trained a group on how to spot the up and to the right movement, and those subjects were no better at spotting lies than a similar group that was untrained. Finally, in a third experiment, the researchers examined a video archive of true and false public statements. Again, they found no significant difference in the eye movements of those lying and those telling the truth.
This leads one to wonder: If this one nugget of NLP — taught for decades and so easily researched — turns out to be false when it is studied, what does that say about the rest of the perspective? And what does it say about our susceptibility to believe theories without evidence? To be sure, NLP has its strong proponents among the ranks of trial consultants. And any theory that is as broad and diverse as NLP is bound to have many components that are practical and helpful. At the same time, modern critics have come to the conclusion that as an overarching model, Neuro-Linquistic Programming is generally unsupported by research. For example, the widespread belief that there are “visual,” “auditory,” and “kinaesthetic” learners is another component of the NLP perspective that has endured and become part of the popular vernacular in a way that’s been undampened by refuting evidence (e.g., Sharpley, 1987).
Despite the popularity of these ideas, driven by tens of thousands of seminars and certifications around the world, a recent investigation in the Journal of Applied Research in Higher Education (Rodrique-Davies, 2009) concludes that “NLP is an ill-defined chameleon that masquerades as a discipline open to the rigours of academic enquiry, when in fact there is spectacularly no evidence to support NLP beyond personal testimony and anecdote.” Another exhaustive review of the research (Witkowski, 2010) goes even further calling it “pseudoscientific rubbish, which should be mothballed forever.”
Apply a Healthy Skepticism
A lack of evidence notwithstanding, litigators would still today be able to easily find consultants willing to apply NLP’s theories to their current trial. As consumers of social science who often aren’t trained in social science, trial attorneys need to apply a few grains of salt to scientific advice offered for trial, and of course that includes the advice offered in this blog as well. That doesn’t mean rejecting social science or rejecting advice, it means applying a critical filter to the claims of knowledge.
1. Ask “How Do You Know?”
Of course, sometimes it is not a matter of knowing but of finding out. A recommendation (e.g., “Why don’t you try this?”) isn’t a factual claim that is amenable to verification. But at other times, recommendations are based on factual claims that should be supported by evidence. For example, the claim that dishonest witnesses reveal themselves through nonverbal tics is an empirical claim — it is either true or false. The same goes for the advice on how certain kinds of jurors tend to come down on certain kinds of cases. When someone offers advice like that to you, ask the basic epistemological question, “How do you know?”
2. Remember If It Seems Too Definite, It Probably Isn’t True.
Models that purport to explain and simplify our psychology or communications can sell a lot of books, but there are few human behaviors or strategies that can be reduced to simple rules. In a recent TED Talk, for example, Pamela Myers talks about “lie spotters,” individuals who, armed with a set of observational techniques, can tell the true from the false with a success rate, she claims, of 90 percent. While she admits to some nuance and complexity about the determination, the list of supposed behavioral “hot spots” showing deception (distancing and qualifying language, ‘leaked’ expressions, over detail, etc.) comes off sounding like a checklist, especially when described as automatic “dead giveaways” to deception. What the Wiseman and other studies indicate, is that humans aren’t that automatic, and any overly deterministic list should be greeted with skepticism.
3. Prioritize Case Knowledge Over General Knowledge.
Of course, one of the great opportunities in your own preparation for trial is that you don’t need to rely on general psychological knowledge. Instead, you can test your own case. When you have a choice, you should always proritize what you learn in the context of your case over general knowledge. For example, we’ve written that jurors displaying a certain set of attitudes about corporations and corporate America are less likely to believe a corporation, and more likely to lean in favor of an individual over a company. We can demonstrate that with numbers, but that only demonstrates a general truth, not a truth that applies in every case. The specific role that anti-corporate bias plays in your case will depend on the individual set of facts, and that is best tested in a mock trial.
The broader message is this: Be wary of the absolutist claims of popular psychology when someone advises you to apply them to your case. And the more specific message is this: If someone claims that people look up and to the right when they lie, check to see if they’re looking up and to the right when they say that.
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Other Posts on Nonverbals:
- Don’t Be Too Sure About Face Reading Your Jury
- Remember in Court, If You’re in View, Then You’re on Stage
- Go Ahead and Talk with Your Hands, But Know What You’re Saying
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Wiseman R, Watt C, ten Brinke L, Porter S, Couper S-L, et al. (2012) The Eyes Don’t Have It: Lie Detection and Neuro-Linguistic Programming. PLoS ONE 7(7): e40259. doi:10.1371/journal.pone.0040259
Photo Credit: Drregor, Flickr Creative Commons