Unfair

by Adam Benforado

  And the elements that we: Bond, Jr., and DePaulo, “Accuracy of Deception Judgments,” 231.

  Moreover, the people one might: Bond, Jr., and DePaulo, “Accuracy of Deception Judgments,” 229. This is not to suggest that there is nothing to be done to improve our ability to detect lying. The most promising avenue, though, may have more to do with changing how we interact with the person we are assessing than in somehow bolstering our own detection skills. In the police investigation context, there is initial evidence, for example, that individuals can improve their deceit judgments by initially collecting more information from a person and then confronting that person with inconsistencies in what they’ve said, or by making the individual cognitively work harder to respond to questioning (e.g., making a suspect tell his story starting with the last event first). Simon, In Doubt, 126–27; Maria Hartwig et al., “Strategic Use of Evidence During Police Interviews: When Training to Detect Deception Works,” Law and Human Behavior 30 (2006): 614–17; Aldert Vrij et al., “Increasing Cognitive Load to Facilitate Lie Detection: The Benefit of Recalling an Event in Reverse Order,” Law and Human Behavior 32 (2008): 253, 262–63.

  Yet just like my students: Simon, “Limited Diagnosticity,” 180; Bella M. DePaulo et al., “The Accuracy-Confidence Correlation in the Detection of Deception,” Personality and Social Psychology Review 1, no. 4 (1997): 346, 351–56.

  And, unfortunately, those who are: Simon, “Limited Diagnosticity,” 180; DePaulo et al., “Accuracy-Confidence Correlation,” 346, 353–56.

  Although it would be nice: Simon, “Limited Diagnosticity,” 179.

  First of all, while study participants: Simon, “Limited Diagnosticity,” 178.

  And being unable to attend: United States v. Watson, 483 F.3d 828, 834–35, (D.C. Cir. 2007). At least one court, however, has invalidated a per se rule excluding blind jurors (although it noted that in some cases exclusion may be appropriate). Galloway v. Superior Court, 816 F.Supp. 12, 18 (D.D.C. 1993).

  Ironically, contrary to the assumptions: For the same reason, appellate judges may have an advantage over trial observers. That is counterintuitive: we generally assume that appellate judges are in a worse position to judge veracity than the fact finders in the trial court because they generally have access only to a trial transcript and, thus, must focus on what was said rather than how it was said. Simon, “Limited Diagnosticity,” 178. Looking across dozens of studies, however, researchers found that participants who judged deceit purely based on body language performed significantly worse than those who were given only audio or only a written transcript. Bond, Jr., and DePaulo, “Accuracy of Deception Judgments,” 225.

  Furthermore, during an actual trial: Simon, “Limited Diagnosticity,” 179.

  Meanwhile, some dishonest witnesses: Pär Anders Granhag and Leif A. Strömwall, “Repeated Interrogations: Verbal and Non-verbal Cues to Deception,” Applied Cognitive Psychology 16 (February 2002): 254; Simon, “Limited Diagnosticity,” 179–80.

  Finally, it is hard to see: Simon, “Limited Diagnosticity,” 179.

  How is she supposed to: Simon, “Limited Diagnosticity,” 179. In addition, although it might seem likely that jurors could overcome these challenges by consulting with one another during deliberations, the benefits of group assessments only seem to come in making individuals feel more confident in their observations, with only insignificant improvements in judging veracity. Mark G. Frank et al., “Individual and Small Group Accuracy in Judging Truthful and Deceptive Communication,” Group Decision and Negotiations 13, no.1 (January 2004): 53–54; Simon, “Limited Diagnosticity,” 180.

  Besides, everyone knows that: The fact that experts tend to be compensated for preparing and providing their testimony by a particular side is one of the reasons that jurors feel confident in relying on their own intuitions instead: the lack of a monetary incentive, one way or the other, seems to ensure objectivity. Studies show that when experts are unaware of which side of a case has hired them, people view them as more credible and their testimony is more persuasive. Christopher T. Robertson and David V. Yokum, “The Effect of Blinded Experts on Juror Verdicts,” Journal of Empirical Legal Studies 9, no. 4 (2012): 777–78.

  Empirical research also suggests that our skepticism about experts is not unfounded. For instance, when scientists had 108 experienced forensic mental health experts evaluate violent sex offenders, they rated the individuals as at a significantly greater risk of reoffending when they believed that they were being paid as an expert for the prosecution than when they believed they were being paid as an expert for the defense. Daniel C. Murrie et al., “Are Forensic Experts Biased by the Side That Retained Them?” Psychological Science 24, no. 10 (2013): 1889, 1893–96; Association for Psychological Science, “Forensic Experts May Be Biased by the Side That Retains Them,” ScienceDaily, August 28, 2013, http://www.sciencedaily.com/releases/2013/08/​130828092302.htm?utm_source=feedburner​&utm_medium=email&​utm_campaign=Feed​%3A+sciencedaily​%2Fscience_society%​2Fjustice+%28ScienceDaily%​3A+Science+​%26+Society+News​+–+Justice%29.

  The fact that we expect lying: As Charles Dickens recorded more than 150 years ago, “Nature never writes a bad hand. Her writing, as it may be read in the human countenance, is invariably legible, if we come at all trained to the reading of it.” Charles Dickens, The Works of Charles Dickens, vol. 36, The Demeanour of Murderers (New York: Charles Scribner’s Sons, 1908), 111. Just as we continue to expect that we can spot guilt or evil in a person’s face—despite the demise of physiognomy—we also maintain a belief that, in the words of the Blue Fairy in Pinocchio, “Lies can be easily recognized.” Don Grubin and Lars Madsen, “Lie Detection and the Polygraph: A Historical Review,” Journal of Forensic Psychiatry and Psychology 16, no. 2 (June 2005): 357. Yes, in real life, noses don’t grow when people fib, but perhaps they twitch, turn cold, or flare at the nostrils.

  Daniel Defoe, the author: C. D. Merriman, “Biography of Daniel Defoe,” The Literature Network, accessed May 15, 2014, http://www.online-​literature.com/​defoe/; Daniel Defoe, An Effectual Scheme for the Immediate Preventing of Street Robberies, and Suppressing All Other Disorders of the Night (London: J. Wilford, 1731), 34; Grubin and Madsen, “Lie Detection,” 359.

  Some two hundred years later: Grubin and Madsen, “Lie Detection,” 359–60.

  Like Defoe, Marston pursued: Grubin and Madsen, “Lie Detection,” 359.

  Yet there was nothing fictive: Grubin and Madsen, “Lie Detection,” 360.

  The court ultimately refused: Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923); Grubin and Madsen, “Lie Detection,” 360.

  But his efforts laid critical groundwork: Grubin and Madsen, “Lie Detection,” 360.

  And it was Frye’s case: Frederick Schauer, “Can Bad Science Be Good Evidence? Neuroscience, Lie Detection, and Beyond,” Cornell Law Review 95 (2010): 1196–97; Brian L. Cutler and Margaret Bull Kovera, “Expert Psychological Testimony,” Current Directions in Psychological Science 20, no. 1 (2011): 54, doi: 10.1177/0963721410388802. The refinement of the Frye test was prompted by Congressional adoption of Federal Rule of Evidence 702, which provided that a “qualified” expert witness could testify if her specialized knowledge would “assist the trier of fact.” FED. R. EVID. 702. In the case of Daubert v. Merrell Dow Pharmaceuticals, the Supreme Court interpreted the rule to require judges to make their own determination of whether the expert testimony was relevant and scientifically reliable, rather than focusing solely on whether the implicated scientific community had accepted the research, as with the Frye test. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 589–94; FED. R. EVID. 702; Cutler and Kovera, “Expert Psychological Testimony,” 54. That said, although the federal rules of evidence are widely influential, each state has adopted its own rules for deciding which expert testimony is admissible. Cutler and Kovera, “Expert Psychological Testimony,” 54. It is important to note that both of these tests are only focused on determining whether scientific testimony is
relevant to the issues in the case. To be admissible in court, the testimony must also not be unduly prejudicial, in the sense of having a disproportionate effect on the jury. Jones et al., “Neuroscientists in Court,” 733.

  Despite widespread use: Henry T. Greely and Judy Illes, “Neuroscience-Based Lie Detection: The Urgent Need for Regulation,” American Journal of Law and Medicine 33 (2007): 385–86; Grubin and Madsen, “Lie Detection,” 364–67; Brian Farrell, “Can’t Get You Out of My Head: The Human Rights Implications of Using Brain Scans as Criminal Evidence,” Interdisciplinary Journal of Human Rights Law 4 (2010): 90.

  As the Supreme Court put: United States v. Scheffer, 523 U.S. 303, 309 (1998) (quoted in Farrell, “Can’t Get You Out,” 90).

  Part of the problem is that: Grubin and Madsen, “Lie Detection,” 366–67.

  People regularly lie without sweating: Grubin and Madsen, “Lie Detection,” 367.

  More recent developments: Richard Wiseman et al., “The Eyes Don’t Have It: Lie Detection and Neuro-Linguistic Programming,” PLOS ONE 7, no. 7 (2012): 5, doi: 10.1371/journal.pone.0040259.

  It’s appealing to think: Wiseman et al., “Eyes Don’t Have It,” 5. I do not mean to suggest that eye-related assessments are necessarily a dead end when it comes to lie detection, only that much of what is currently parading as settled science is untested hearsay. Two more promising avenues may be new research on periorbital thermography, which is focused on temperature changes in the area near the eyes brought about by increased blood flow from rapid eye movements associated with lying, and microfacial expression analysis championed by the psychologist Paul Ekman. Mark Hansen, “True Lies,” ABA Journal, October 1, 2009, http://www.abajournal.com/​magazine/​article/true_lies/; Greely and Illes, “Neuroscience-Based Lie Detection,” 389–90. At this time, though, neither has provided sufficient evidence of accuracy to be considered a reliable tool for assessing deception. Greely and Illes, “Neuroscience-Based Lie Detection,” 389–90. The lack of empirical support has done little to slow the growth in YouTube videos, training courses, and thousands of webpages all promising to reveal the science of eye movements. Wiseman et al., “Eyes Don’t Have It,” 1.

  More generally, methods and technologies: The Transportation Security Administration, for example, spent about $900 million to train “behavior detection officers” in assessing people’s expressions and demeanor to help catch terrorists. “TSA Should Limit Future Funding,” 1–2; John Tierney, “At Airports, a Misplaced Faith in Body Language,” New York Times, March 23, 2014, http://mobile.nytimes.com/​2014/03/25/​science/in-airport-​screening-body-language-is-faulted-as-behavior-sleuth.​html?from=homepage. But when the Government Accountability Office reviewed it, they found that there was no proof of its effectiveness and suggested eliminating funding. “TSA Should Limit Future Funding,” 47–48.

  Until very recently this approach: Joëlle Anne Moreno, “The Future of Neuroimaged Lie Detection and the Law,” Akron Law Review 42 (2009): 719.

  We now have the potential: In essence, fMRI holds the potential to move beyond capturing a person’s responses to lying to capturing the underlying lie based on the idea that different areas of the brain are activated when a person lies versus when a person tells the truth. Greely and Illes, “Neuroscience-Based Lie Detection,” 395–400.

  Another fMRI approach to identifying deceit may yield even greater benefits over the traditional polygraph: detecting the presence of memories that a person has explicitly denied (e.g., you said that you were never at the crime scene, but when you were shown a photograph of the bathroom where the murder took place, your brain reacted in a certain way). Thomas Nadelhoffer and Walter Sinnot-Armstrong, “Neurolaw and Neuroprediction: Potential Promises and Perils,” Philosophy Compass 7, no. 9 (September 2012): 632, doi: 10.1111/j.1747-9991.2012.00494.x. With a polygraph, we need the person to participate actively by answering questions in order to gain any information. If the person refuses to respond, the polygraph cannot function. That’s not true with fMRI: we are looking at brain activity, which may be prompted simply by showing someone a photograph of a gun used in the crime or reading a letter from the victim. Jay Stanley, “High-Tech ‘Mind Readers’ Are Latest Effort to Detect Lies,” Free Future (blog), American Civil Liberties Union, August 29, 2012, https://www.aclu.org/blog/​technology-and-liberty/​high-tech-mind-readers-are-latest-​effort-detect-lies.

  And there has been a mad dash: Schauer, “Can Bad Science Be Good,” 1198–99.

  In 2011 the Defense Advanced: Azeen Ghorayshi, “This Is Your Brain on the Department of Defense,” Blue Marble (blog), Mother Jones, April 3, 2012, http://www.motherjones.com/​blue-marble/​2012/04/​department-of-defense-neuroscience-bioethics-brains-law; Mark Harris, “MRI Lie Detectors: Can Magnetic-Resonance Imaging Show Whether People Are Telling the Truth?” IEEE Spectrum, July 30, 2010, http://spectrum.ieee​.org/​biomedical/​imaging/mri-lie​-detectors/0.

  For a few thousand dollars: Hansen, “True Lies”; “Brain Fingerprinting Advantages,” Brainwave Science, accessed May 16, 2014, http://www.​brainwavescience.com/​product-advantages.html; Harris, “MRI Lie Detectors.” On the website of No Lie MRI, the company explains that its technology “represents the first and only direct measure of truth verification and lie detection in human history!” “New Truth Verification Technology,” No Lie MRI, accessed May 16, 2014, http://www.noliemri​.com/​index.htm.

  In 2012, Judge Eric M. Johnson: Michael Laris, “Debate on Brain Scans as Lie Detectors Highlighted in Maryland Murder Trial,” Washington Post, August 26, 2012, http://​www.washingtonpost.com/​local/crime​/debate-on-brain-scans​-as-lie-detectors-highlighted-in-maryland-murder-trial/2012/08/26/aba3d7d8-ed84-11e1-9ddc-340d5efb1e9c_story.html.

  The prosecution alleged that Gary Smith: Michael Laris, “Gary Smith Guilty of Involuntary Manslaughter in 2006 Shooting of Fellow Army Ranger,” Washington Post, September 19, 2012, http://www.washingtonpost.com/​local/crime/​gary-smith-guilty-of-involuntary-manslaughter-in-2006-shooting-of-fellow-army-ranger​/2012/09/19/​d2a1885a-01be-11e2-b260-32f4a8db9b7e_story.html.

  When the police had arrived: Laris, “Debate on Brain Scans.”

  He was the one who had: Laris, “Debate on Brain Scans.”

  Sure enough, when the officers: Laris, “Debate on Brain Scans.”

  But, curiously, there was no gun: Laris, “Debate on Brain Scans.”

  Gary had proceeded to try: Laris, “Debate on Brain Scans.”

  He’d come home and found: Laris, “Debate on Brain Scans.”

  No, the gun was there: Laris, “Debate on Brain Scans.”

  No, wait, Gary had been: Laris, “Debate on Brain Scans.”

  He had panicked because: Laris, “Debate on Brain Scans.”

  He had thrown it: Laris, “Debate on Brain Scans.”

  Gary hoped he could clear things: Laris, “Debate on Brain Scans”; Andy Balmer, “Gary James Smith v. State of Maryland,” Reasonable Excuse (blog), August 30, 2012, http://andybalmer​.wordpress.com/​tag/no-lie-mri/.

  Technicians asked Gary a series: Laris, “Debate on Brain Scans.”

  He was told to lie: Laris, “Debate on Brain Scans.”

  “Did you shoot Mike”: Laris, “Debate on Brain Scans.”

  Gary responded that: Laris, “Debate on Brain Scans.”

  Professor Haist then reviewed: Laris, “Debate on Brain Scans.”

  Knowing which areas of the brain: Laris, “Debate on Brain Scans”; Benedict Carey, “Decoding the Brain’s Cacophony,” New York Times, October 31, 2011, http://www.nytimes.com/​2011/11/01/​science/telling-the-story​-of-the-brains-cacophony-of-competing-voices​.html?_r=1&pagewanted=print.

  In Haist’s opinion, the images taken: Laris, “Debate on Brain Scans.”

  Even the uninitiated would see: “Brains Scan for Lie Detection,” Washington Post, August 26, 2012, http://www.washingtonpost.com/​local/crime​/brains-scan-for-lie-detection​/2012/08/26​/0676909a-efd5-11e1-892d-bc92fee60
3a7_graphic.html.

  The clear implication, then: Laris, “Debate on Brain Scans.”

  First of all, we do not yet: Schauer, “Can Bad Science Be Good,” 1200.

  Some technologies have virtually: Farrell, “Can’t Get You Out,” 91–93.

  One company, Brainwave Science: “Product Applications,” Brainwave Science, accessed May 16, 2014, http://www.brainwavescience.com/​technology.html.

  According to the Brainwave Science website: “Brain Fingerprinting Advantages,” Brainwave Science.

  The benefits are apparent: “Product Application for Law Enforcement,” Brainwave Science, accessed May 16, 2014, http://www.brainwavescience.com/​law-advantages.html.

  Neither are most scientists: Greely and Illes, “Neuroscience-Based Lie Detection,” 387–88.

  The technique that has the most: Henry Greely, “To Tell the Truth: Brain Scans Should Not Be Used for Lie Detection Unless Their Reliability Is Proven,” Scientific American, December 2010, 18; Turhan Canli et al., “Neuroethics and National Security,” American Journal of Bioethics 7, no. 5 (May 2007): 6, 8, doi: 10.1080/15265160701290249.

  Although there are more than two dozen studies that consider fMRI lie detection, there is little agreement on which particular areas of the brain matter when it comes to lying. Greely, “To Tell the Truth”; Hansen, “True Lies.” The fMRI images also vary quite a lot among people with normally functioning brains, making it a challenge to determine when a level of activity in a particular part of the brain is actually significantly raised. Carey, “Decoding the Brain’s Cacophony,” 4. In addition, using fMRI is both expensive and resource intensive, so most experiments don’t have more than a handful of participants, and those participants tend to be disproportionately healthy, young, white, right-handed men. Greely and Illes, “Neuroscience-Based Lie Detection,” 402–03.

  One of the biggest problems: Greely, “To Tell the Truth,” 18; The Royal Society, Brain Waves Module 4: Neuroscience and the Law, (London: The Royal Society, 2011), 25, https://royalsociety.org/~/media/Royal_Society_Content​/policy/projects/brain-waves​/Brain-Waves-4.pdf; Canli et al., “Neuroethics and National Security,” 6.