By Dr. Ken Broda-Bahm:
If you are in court with a sitting jury, you can’t help but watch them for facial responses. Whether you are at the lectern, counsel table, the witness box, or the gallery, it is irresistible to observe the panel and it is inevitable to form conclusions about their attitudes toward what they’re hearing. But how much can you trust that face reading ability? We have heard about individuals with the power to assess intention and separate truth from lies by paying careful attention to the details and "microexpressions" of the human face and body. Popular television has even discovered the phenomena in the series Lie to Me based on the work of Paul Ekman, the psychologist who pioneered the practice.
The more I’ve learned about these techniques, the more I’ve suspected that they may be over-selling the reliability of the connection between a definite emotion and a facial or non-verbal expression. While facial and other nonverbal responses obviously convey meaning, it seems likely that they don’t do so like a spoken language does, with a given meaning assigned to a specific physical response. A raised eye-brow or a crinkling around the eyes can mean dozens or hundreds of things depending on context and depending on the individual. Personally, I haven't emphasized "jury watching" because I don't believe there is a mechanical relationship that provides a reliable interpretation. And now a recent analysis of the literature published in Current Directions in Psychological Science suggests that my suspicions are well placed. Northeastern University Professor Lisa Feldman Barrett (2011) looks at what is called the "basic emotion" school of thought suggesting that expressions are readable because they are biological and cross-cultural. Contrasting that with more recent research, she makes the argument for a more nuanced view of the relationship between feeling and face. In this post, I’ll look at what that analysis has to say to those watch jurors in the courtroom.
Context Not Clairvoyance
One of the main implications of Dr. Barrett's analysis is that the interpretation of facial and non-verbal responses is highly dependent on the context of a situation and does not give you a clairvoyant window into the mind of the individual. To understand why, it helps to take a look at the evolution of this perspective and take a step all the way back to Charles Darwin. In addition to his famous Origin of Species, Darwin also did work on emotional expression in animals and humans, and his view of basic emotional expressions (anger, fear, sadness, happiness, surprise, and contempt) evolving in response to common conditions has become the foundation for a modern science of emotional expression, including the "microexpressions" perspective that looks for the facial cues that we are not able to mask.
The central evidence for this belief in a trustworthy correspondence between a facial expression and an underlying emotion is study participants’ ability to reliably identify emotions in posed photographs both within and between cultures: An American as well as a native of Papua New Guinea will see “fear” as fear, “surprise” as surprise, etcetera, based on facial expression. But as Doctor Barrett points out, there is one simple study modification that dramatically decreases the reliability of those identifications: Make the participants respond with fill-in-the-blank rather than multiple choice. If you do that, then the ability to identify the intended emotion behind the face falls from 83.4 percent to just 42 percent. As Professor Barrett notes, it may be that "emotion categories do not have firm boundaries in nature." Or as a follow up article in the Boston Herald puts it, "We may experience emotions the way we perceive color — as a continuous spectrum that we divide into arbitrary categories, shaped by language and culture."
The implication is that the relationship between facial expression and underlying emotions is likely to be much more fluid than we give it credit for. It is beyond doubt that some individuals, like Dr. Paul Ekman, are able to assess facial expression and detect honesty at a level better than chance, and some of his studies have discovered other individual "wizards" that seem to excel at it. But they are a small percentage, and it does not seem to be a a matter of simply learning a technique to decode facial expressions, as was attempted in a $1 billion training program for TSA personnel.
In most cases, assessing facial expression and other nonverbal cues as a guide to someone’s internal state requires context: The more you know the person, and the more you know the situation, the more accurately you are able to determine clear meaning from a facial expression. What that means for jury watchers is that many of those critical personal and contextual factors are missing for us. Generally, aside from a brief interview or questionnaire, we don’t know these people, so we are unlikely to know whether a furrowed brow means displeasure or concentration.
Watch, But Take Care in Interpretation
This is not to say that we should ignore the facial expressions of your jury, but it does place a few cautions on how we watch and infer meaning.
1. Don’t Assume that Passive or Negative Facial Expressions are Conveying Dislike. You can drive yourself to distraction if you operate on the belief that every scowl means a rejected argument, and every look of boredom means a tuned-out juror. Here is a recommendation I make on interpreting facial expressions: Next time you are watching television with a group of people, take a moment and look around at the faces of those watching with you. What you will usually see is blank, passive expressions as they are staring at the screen. That doesn’t mean that they are disinterested or disengaged, it simply means they are not devoting any energy to their behavior as an audience. In the courtroom, you can often see that same passive “television face” and it doesn’t necessarily mean that your jury has dismissed you.
2. Don’t Assume Every Friendly Face is a Juror Who Likes You. We often encounter this: “Did you see Juror Three, the way she smiled and nodded when you stood up?” Well, that may mean Juror Three likes you and is prepared to lead the others to a vote in your favor, but it may also mean that Juror Three, unlike the others with the passive “television face,” has simply learned good audience behaviors. Any public presenter knows that some people give you good feedback. They will show eye contact, nods, and sometimes smiles. It can just mean “I recognize that you’re speaking and I hear you…but I don’t necessarily agree.”
3. Don’t Give Up on Having Someone in Court Focused on the Jury. You should be suspicious at a minimum of anyone who tells you they can discern what jurors are thinking through close observation of facial tics. It is nonetheless a good idea to have someone who is relatively naïve to the details of the case, but who is hearing the evidence as the jury hears it, and is able to talk in terms of likelihoods: what a jury hearing this information may or may not understand, what questions they may have, and what evidence they might expect to hear. In other words, a useful member of the team can be someone who is empathic to the jury rather than someone who is watching and decoding facial responses.
Having a source of information outside the trial team is a good idea, as is keeping in mind a juror's-eye-view of the case as it progresses. But that perspective and reality check is far more likely to come from a consultant or another non-attorney member of the trial team than it is to come from reading the panel’s faces.
Other Posts on Non-Verbal Communication:
- Go Ahead and Talk with Your Hands, But Know What You're Saying
- For Opening Statement (or Any Other Presentation), Keep Your Speaking Notes Off the Screen
- Remember in Court, If You're in View, Then You're on Stage
Barrett, L. (2011). Was Darwin Wrong About Emotional Expressions? Current Directions in Psychological Science, 20(6), 400-406 DOI: 10.1177/0963721411429125
Photo Credit: Mark Hillary, Flickr Creative Commons