Later On

A blog written for those whose interests more or less match mine.

Lying eyes: Using disproven methods to make legal judgments

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Gayan Samarasinghe writes in New Humanist:

The pandemic has meant most court hearings are now conducted online. For some of the judiciary, these virtual hearings are a great modernising development. Others are less enthusiastic. That is perhaps not surprising given that our courts are one of the most conservative of our institutions. Its priests appear in wigs and robes, its natural language is Latin, cameras and the press are largely shut out. In this context, trial by Skype is a polarising reform. But some judges complain that there is an insoluble problem when trials are held remotely: reading faces.

In a precedent-setting case at the start of the pandemic – known only as the matter of “P (A Child: Remote Hearing)” – a senior judge overturned a decision to hold a virtual trial. A local authority had accused a mother of child abuse by fabricating and inducing symptoms of illness in her daughter: a case, social services argued, of Munchausen Syndrome by Proxy.

The judge ruled the virtual trial could not proceed because the postage stamp version of the mother on Skype was too small. He wanted to see her properly, not only while she was giving her evidence, but while she was sitting in the well of the court and reacting to the evidence against her. This assessment of outward appearance, the judge said, was crucial to judging.

The judgment in P stands for a long and largely unquestioned tradition that asserts judges can and should try to read people’s facial expressions and body language when reaching decisions. But increasingly, both the ethics and science behind this practice are being called into question.

Biasing the court

In my first year of training as a barrister in the UK, I arrived at court to represent one of two parents involved in a bitter custody dispute over their young son. The judge – sensing the animosity in the room – warned both of them to be respectful when the other was speaking. He then expressed a sentiment that I have heard many judges repeat, something along these lines: “Judges often learn far more watching you while you are listening, than when you are speaking on oath.”

Not long after, in a domestic violence case in a different court, I learned what could happen when the warning wasn’t heeded. While listening to her ex-husband’s answers to questions, my client sighed, made faces and – worst of all – committed the crime of kissing her teeth: an acceptable way of expressing disapproval in her West African culture but a noise that is strangely hated in much of Europe (“le tchip” as it is known in French, is now banned in many schools both in France and in the UK).

When the court’s judgment was given, my client was described by the judge as a woman whose behaviour in court had not been consistent with that of a domestic abuse victim. By the narrowest of margins, however, and due to other evidence, the judge (seemingly grudgingly) found in her favour. I was relieved my client won her case, but I was troubled by the idea that even people who have been ruled to be victims may not have a courtroom demeanour that lives up to the imagined standard of what a victim should look like.

I couldn’t help wondering how juries in criminal trials approached similar questions. One of my former lecturers at law school, Professor Louise Ellison, has investigated how juries make decisions in rape cases. Her research suggests that many jurors may have little understanding of the factors that could influence a rape complainant’s demeanour in court. Although victims of trauma may present as calm for a number of reasons, Ellison’s jurors were struck and perplexed with what they perceived as “stoic” testimony by a complainant. Some speculated whether the witness’s measured pace and somewhat “flat” intonation meant that her answers had been rehearsed.

A complication for Ellison’s research is access to jurors. Her studies have been undertaken with actors in the roles of complainants. While criminal trials are held in public, jurors are forbidden, at risk of imprisonment, from revealing how they reached their verdicts. There is an anxiety as to how many mistrials might take place were jurors to reveal their deliberations. In one study, conducted with Ellison’s colleague Professor Vanessa Munro and published in the British Journal of Criminology in 2009, their mock jurors often said troubling things. One discussion focused on what the witness had chosen to wear to court – with a juror suggesting that a “dowdy” dress was a deliberate attempt to manipulate the jury: “she’s got no make-up on, her hair’s tied back, she looks like a frightened little woman. Who knows, in the office she could have black stockings on, four and a half inch heels, wearing loads of make-up.” Do these mirror the discussions of juries in real trials?

Some think the answers to these types of questions could do immense damage to the system: the right to be judged by a jury of one’s peers, ever since it was enshrined in the Magna Carta, has long been seen as a safeguard against tyranny and a fundamental part of British justice.

There may, however, be ways of improving the system. Much like in other social situations, jurors can and do correct each other. And judges can also help. Ellison has argued for . . .

Continue reading. There’s more.

Written by Leisureguy

29 July 2021 at 1:24 pm

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