By Dr. Ken Broda Bahm:
As a sign of just how serious the coronavirus pandemic is getting, the President has finally appeared in public with a mask. The precaution of wearing a face mask is still highly politicized, but it is slowly catching on. In the planning process of courts that are moving toward resuming trials, however, masks have raised some important issues. Safety indoors and in conditions with minimal distancing seem to necessitate masks, but there is a belief that masks are likely to impair the ability of lawyers to assess the truthfulness of potential jurors, and the ability of jurors to assess the truthfulness of witnesses. At the extreme end, some criminal defense attorneys can be expected to argue that the right “to confront witnesses” is abridged if that witness is masked while confronted.
As I have noted, conducting all or parts of the trial online may be necessary and even advantageous in the near term. But while there are many problems that will need to be solved in returning courts to in-person operations with juries, a face mask’s impact on credibility assessment should not be one of them. The reason is that the research shows that a close study of a person’s face does not help in determining whether that person is telling the truth or not. Some research even suggests that a partial face covering may enhance the ability to discern credibility because it leads to a greater focus on the aspects of testimony that are more predictive of truthfulness: the language, content, logic, and consistency of the testimony itself. A recent article Recent article by Julia Simon-Kerr (2020),, a University of Connecticut Law School Professor, also summarized in a recent story in NPR, makes the forceful argument that masking in the courtroom is not a bad thing. She notes, “this mask-wearing moment offers a unique opportunity to reassess the role of demeanor in credibility assessments,” potentially moving jurors to a more effective and accurate perspective on witness evaluation. In this post, I will take a look at the argument and propose a new jury instruction that courts could use when jurors are hearing testimony from a masked witness.
Misplaced Faith
Professor Simon-Kerr reviews the current case law on the system’s emphasis on demeanor as a central tool for jurors and judges to use when assessing witness credibility. The social science literature reviewed in her article, however, is very clear in demonstrating a point I have made in the past: The ability to discern truthfulness is not helped much, if at all, by observation of an individual’s face or other nonverbal cues. I have also written about research showing that our visual lie-detecting ability is generally no better than chance. In addition, a large body of research reviewed in Simon-Kerr’s article shows that focusing on visual cues hinders lie-detecting abilities because it detracts from better methods. As a result, hiding all or part of the face actually helps to improve credibility assessments.
Be that as it may, it is still a deeply-held cultural assumption that one can look in another’s face and tell if they are being truthful or lying, and people are resistant to updating their beliefs. That applies to the courts as well, since this research has been available for years, if not decades. But it still has not made a strong impact on the courts, and jurors are still routinely instructed to focus on demeanor. Legal cases focusing on the acceptability of wearing masks in the witness box (i.e., for witness protection or for religious reasons) have been infrequent and have borne mixed results. While practices in the coming weeks and months are bound to pave new ground, the present status seems to be that in criminal cases, mask wearing would need to be justified by a state interest (which is arguably quite strong now), but cases could still be overturned on “confrontation clause” grounds.
An Opportunity to Educate
As courtrooms open, it is inevitable that most will require mask wearing in some fashion. While the placement of plexiglass around the witness box might make it possible for some witnesses to avoid masks, those who are in high-risk groups might prefer it. And, of course, even aside from the pandemic, there are members of some religious groups who use some form of facial covering as the norm.
When a witness is masked for whatever reason, what do we tell the jurors about how they should evaluate the witness’s credibility? Here, Simon-Kerr argues that the pandemic creates an opening, “an opportunity to reassess the legal system’s insistence on the primacy of demeanor evidence.” In other words, it is a chance to tell the fact-finders, and to remind ourselves, that assessing truthfulness is not completely, or even partially, a matter of looking someone in the face. It is a matter of assessing the full scope of their testimony, but mostly the language, the overall logic, and the consistency.
A Possible Instruction
A standard jury instruction on how to evaluate a masked witness is uncharted territory. But the unique situation of courts opening during a pandemic provides an opportunity to begin mapping out that new ground. As Simon-Kerr argues, “This type of enforced and sudden change to our ability to see each other’s faces may be the type of event that can break down our unthinking reliance on demeanor.”
But we can’t assume that jurors will understand that. They may instead simply feel that their ability to assess truthfulness is impaired. Part of the solution to that is for jurors to hear a clear message from the bench. An instruction might go something like this:
Members of the jury, you are the fact-finders in this case. In determining the truth, you can rely on your own judgment and your own assessment of the evidence and the witness testimony.
Due to the current medical emergency, some [or all] of the witnesses you see will be wearing a facial mask covering their mouth and nose. This may create some confusion for you in assessing the witness. When evaluating the truthfulness of another’s words, many people believe that they can determine that truthfulness by focusing on a person’s facial expressions and body language. The social science research, however, does not support the value of relying on these nonverbal cues. Simply put, when looking at facial expressions, people believe that they are assessing truthfulness, but the reality is that they are not. A focus on the face can instead lead to a false sense of certainty and distract you from other cues that are more reliable in assessing truthfulness. The evidence indicates that a witness’s mask does not hinder the ability of fact-finders to assess truthfulness.
Instead of focusing solely or primarily on the facial expression of the witness, I encourage you to rely on all of the tools of assessment, including the language, the logic, the factual components, the overall consistency of the message, as well as the issues brought up in direct and cross-examination.
It may well be that, with the pandemic in the U.S. ramping up and not down, it is too soon to open the courts to jury trials. It may also be that courts would be better off using this time to explore and perfect the web-conferencing solutions that will be help promote court efficiency even in non-pandemic times. But to the extent that masks are worn in open courts, they create an opportunity to be more realistic and grounded in the messages we give on assessing truthfulness.
Simon-Kerr makes one additional point on the appeals of masks in the courtroom. “Masks could be amazingly universalizing,” she writes. “When not only all witnesses, but judges and attorneys as well must appear in masks, the resulting tableau has the potential to unite us in our noseless and chinless commonality.”
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Other Posts on Nonverbal Communication:
- Beware of Nonverbal Pseudoscience
- Remember that the Camera Has a Bias
- When Assessing Emotions, Listen, Don’t Look
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Simon-Kerr, J. A. (2020). Unmasking Demeanor. Available at SSRN 3610460.