By Dr. Ken Broda Bahm:
You see the witness on the stand testifying. As she speaks, a storm of movements large and small cross her face and influence her posture and body. “She is nervous,” one juror thinks, “because she is just trying to say what the attorneys told her to say.” Meanwhile, another juror thinks “She is disgusted by this lawyer, and I would be too.” On the other side of the jury box, though, it is “She is remorseful. She is reliving the event and she feels partly to blame.” The same behavior from the witness, but very different reactions from the jurors. Of course, they will sort it out in deliberations and come to a consensus view, but what about the distinct perceptions in the meantime?
Those with a little knowledge or a lot of faith in nonverbal communication might be primed to expect a consistent reaction from those tasked with assessing the witness’s demeanor. After all, psychologists like Paul Ekman have long since demonstrated that there is a basic set of nonverbal emotional expressions that are universally understood across different cultures and settings, aren’t there? No, not so fast, says a new perspective in emotion science. Led by Lisa Barrett, a psychology professor at Northeastern, researchers are now pointing to some fundamental flaws in the early research that has served as the foundation for face-readers and newer research is pointing to the conclusion that human facial responses are far less universal and more particular than we expect. That means that what you or your witness are actually communicating through nonverbal channels could be less predictable than you might think. A closer look into the research on this dispute provides a practical note of caution on how confident we can be when assessing how nonverbal behavior will come across in court.
What? The “Lie to Me” Guy Might’ve Lied to Me?
The inspiration and template for Lie to Me, the popular Fox television show on lie detecting crime fighters is Paul Ekman. The psychologist, a pioneer in emotion science, studied the consistency of human interpretations of facial responses across cultures in the early sixties. Traveling around the world, Ekman showed that when individuals view a common set of photos showing a selection of stock emotions, they’re able to interpret them in the same basic ways whether they live in London or an isolated tribe in New Guinea. These studies became a foundation for Ekman’s later work focusing on the brief “micro expressions” used to determine truthfulness and relied on by a variety of law enforcement agencies including the FBI and Homeland Security.
But Lisa Barrett, the Northeastern psychologist, has been arguing that this apparent consistency is an artifact of the way Ekman and others have conducted their studies: by having participants choose within a set of words (like “angry” or “disgusted”) the one that best applies to the photo. As she told Boston Magazine in a recent story, “I can break that experiment really easily just by removing the words. I can just show you a face and ask how this person feels. Or I can show you two faces, two scowling faces, and I can say, ‘Do these people feel the same thing?’ And agreement drops into the toilet.”
It started in the early 90’s, when Barrett had difficulty replicating Ekman’s findings and wasn’t able to get research subjects to differentiate common emotions like anxiety and depression. These challenges initiated a line of studies showing that people construct emotional responses in individual ways, with a measure of consistency but not universality. For example in one study, discussed in Boston Magazine but not yet published, Barrett and colleagues found that members of the Himba tribe in Namibia were unable to differentiate anger, disgust, and sadness in the way Ekman’s theory suggests they should have been able to. Without the guidance of a label to apply, tribe members were asked to sort similar expressions together. They couldn’t do it. “What we’re trying to do,” she told Boston Magazine, “is to just get people to pay attention to the fact that there’s a mountain of evidence that does not support the idea that facial expressions are universally recognized as emotional expressions.”
What the studies (e.g., Gendron et al., 2012) also show is that the viewer of a nonverbal response doesn’t just perceive, but also participates by bringing in their own perceptions and perceived knowledge to the task. What a given nonverbal expression means is strongly influenced by our beliefs about what it should mean.
What does that say to those of us who aren’t working in psychology labs or trying to persuade members of the Himba tribe? It means that it is likely that humans create and interpret nonverbal response without the aid of a universal language of emotions. A finding that has meaning within and not just across cultures, it suggests that both the communicator’s behaviors, as well as the audience’s interpretation of those behaviors, are going to resist neat and easy categorization.
Recommendation: Adapt a “Multitrack” Approach When Communicating Emotions
The jury is still out, as the Boston Magazine article reports, on whether Ekman or Barrett will win the argument over the consistency of emotional expression. But litigators have more practical needs: The witness still must testify in front of a diverse jury, and often needs to convey some of the truthful emotions underlying that testimony. So what do you do?
Here’s what you can’t do: “Just put her on the stand. She is obviously traumatized and the jury will see that.” That might work, or it might not. What you see as obvious trauma, a juror could see as calculated acting, or as depression, disengagement, hostility, or anger…you name it. It depends on the behavior and it depends on the viewer.
Here’s what you should do instead: Think of as many ways as possible that this idea of “trauma” can be conveyed. That includes the witness’s nonverbal behavior, honestly conveyed, not acted. But it also can include stories that reveal the extent of the response. And an especially helpful tool is to have others speak for the witness (e.g., “Yes, I’ve known her for years, so I can tell you how traumatic this was for her”). By relying on multiple tracks in conveying the right emotion — showing, telling stories, and bringing in the testimony of others — you are increasing the chance that jurors will perceive and believe the emotional content of the testimony.
The problems in relying on Ekman’s work — which has been a dominant scientific perspective for many decades — potentially provides another example of scientific knowledge becoming popular because it feels true. As I’ve written before, this stickiness is a phenomenon worth studying in its own right. The idea that “people are people” at an emotional level has an appeal to it, and it is also useful if you’re trying to build a template for lie detection. But useful and appealing doesn’t mean true and reliable.
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Other Posts on Nonverbal Communication:
- Don’t Be Too Sure About Face Reading Your Jury
- Remember in Court, If You’re in View, Then You’re on Stage
- Look Like You’re Winning: 2012 Presidential Debate Series, Part One
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Gendron, M., Lindquist, K. A., Barsalou, L., & Barrett, L. F. (2012). Emotion words shape emotion percepts. Emotion, 12(2), 314.
Photo Credit: Sunfox, Flickr Creative Commons