By Dr. Ken Broda Bahm:
As we begin to take stock of and conduct research on the effects on the pandemic adaptations, it is important to keep an essential principle in mind: The research on pandemic adaptations is not just about the pandemic adaptations. In nearly every case, the focus will also bear on larger issues of communication and the central functions of courts even in normal times. One such example is the focus on the effects of masks on the ability to assess witnesses and others in the courtroom. Pre-pandemic, I think it was the assumption that masking a witness or a potential juror would cut at the heart of the ability to fully assess and believe that person. That likely contributed to the reasons many courts simply suspended jury trials when public masking was in effect.
Over time, however, it has become more clear that there was little reason to believe that masks would hinder credibility assessment, and at least some reason to believe it might help it. A recent analytic research article (Vrij & Hartwig, 2021) advances that argument. Psychologists from the UK and New York looked at the current literature to answer the question of whether masks in the courtroom impair the assessment of credibility. Our current knowledge points to the conclusion that, despite our beliefs about non-verbal communication, watching someone’s face does not reliably increase our ability to see honesty or dishonesty, and nonverbal lie-detection hovers around coin-flip levels. Indeed, being forced to focus on the words of the masked witness instead encourages a reliance on better cues, and thus leads to improved lie-detection. In this post, I’ll consider three implications of this, from specific to broad.
Specifically: A Lesson for Pandemic Communication
As the pandemic continues to play out its fitful end, case levels are again rising modestly across the country. However, many people have been mask-free in public for a year or more and show zero signs of ever going back. Many of us are again dining, attending concerts, and flying bare-faced in overcrowded planes. That said, some counties are considering or reinstating mask guidance. It seems likely that the effect of health measures such as masking will continue to be an issue for the courts through this and the next pandemic.
The research article did not conduct a new study, and clearly there is a need for an experimental comparison of assessments of masked and unmasked witnesses. The one prior study, which I have previously written about, focused on religious masking and showed exactly what the theorist would expect: By shifting attention away from less reliable non-verbal cues and toward more reliable verbal and content cues, assessing a masked witness carried an improved ability to determine the reliability of the communication. Adding in the broader conclusions of nonverbal indeterminacy, Vrij and Hartwig argue that courts should not assume that masks are a communication barrier: “It does not seem that the measures to counter the spread of the COVID-19 virus (or any other virus that spreads in similar ways) will negatively impact observers.”
More Broadly: Applications to Online Communication
The beauty of conducting court or testimony online, of course, is that the masks become unnecessary. At the same time, many of the beliefs about the presumed superiority of in-person communication center on nonverbal communication: We think we can get a better read on a person when we’re in-person. But is that true? Again, much of the applied research remains to be done, but we don’t currently have good reason to believe that virtual communication is necessarily worse. Depending on the camera location and set-up, the view of the remote witness could be worse, but it could also be better, with a closer focus on the face, for example. But the more important point is that those nonverbal cues that we think we have better access to in person are not reliable tools for assessing the believability of a witness. The authors note, “We conclude that virtual courtroom as an alternative to in-person court proceedings will not have a negative impact on jurors’ lie-detection ability either.”
Most Broadly: A Gap Between Folk-Beliefs and Science
The final point is probably the most important one: Don’t trust something just because it is a long-standing opinion. The authors refer to a “pan cultural belief that nonverbal behavior reveals deception.” It is called “the demeanor bias,” and it extends beyond just deception-detection, but overall assessment of others. After all, in court, we don’t just expect jurors to be lie-detectors, we expect them to hear the whole story, including evidence, and to make decisions about what is meaningful, reasonable, legal, and fair. That depends on good assessment of communication. But if you’ve heard the claim that 93% of communication is nonverbal, then you have heard a pretty gross distortion of research from a study that never set out to explain the proportion of meaning carried by verbal versus non-verbal communication, and whose own author (Albert Mehrabian) disavowed that interpretation. In all areas, those who want to more fully understand and apply the art of legal communication need to draw a distinction between folk-wisdom and actual social science. We don’t get most of our meaning by decoding nonverbal tics, it is a much broader picture than that.
Other Posts on Nonverbal Communication:
- Face It: Masks Don’t Hinder Credibility Assessment
- Beware of Nonverbal Pseudoscience
- Consider That Your Zoom Conferences Might Be Sapping Your Collective Intelligence
Vrij, A., & Hartwig, M. (2021). Deception and lie detection in the courtroom: The effect of defendants wearing medical face masks. Journal of Applied Research in Memory and Cognition, 10(3), 392-399.