Detecting Deception in Witness Statements
In a recent newsletter, I discussed how the litigator can detect the "tells" of deception in the nonverbal communication of witnesses.
To review, the anxiety of the typical deceptive responder causes a progression of "freeze" and "flight" responses leading to unconscious behavioral "tells" when the responder attempts to self-comfort or psychologically flee the room.
When a witness provides truthful oral or written statements of an event, the auto-generative process produces an internally consistent narrative. The deceptive witness often produces a statement marred by subtle internal inconsistencies providing "tells" of his/her attempt to flee from a truthful response.
Two books that I have found useful in understanding deception in witness statements are I Know You Are Lying by Mark McClish, and Investigative Discourse Analysis by Ron Rabon.
The examples below are taken from these books.
"Tells" of Deception in Witness Statements
Lies are not typically complete fabrications because the misrepresented event described typically resides as the "meat" between the undisputed prologue and epilogue slices of the narrative sandwich. The attempt to deceive usually occurs within the details of the "unseen" facts. Deception takes a conscious effort to alter the actual event. When the deceptive person reprograms the event, it results in unconscious subtle changes to the semantics and "three-act play" sandwich structure of the narrative of the event.
Semantic changes occur in the nuances of just about all parts and expressions of speech.
In 1992, on the CBS news program 60 Minutes, Bill Clinton described his relationship with Gennifer Flowers saying, "She left our state, and for years, I didn't really hear from her and know what she was doing." So, did Clinton hear from Flowers after she left the state? Clinton uses the qualifying words "didn't really," which is a kind of subtle non sequitur.
In O.J. Simpson's book I Want To Tell You he states, "I am grateful that even those who believe in my guilt also believe that I should have my day in court and have agreed to let their words be published in this book." Simpson uses the possessive pronoun "my," owning his guilt, whereas an innocent person would probably generate "even those who believe I am guilty."
Ted Kennedy, in describing the Chappaquiddick incident that claimed the life of Mary Jo Kopechne said, "I was driving... I was unfamiliar with the road... I descended a hill..." and then, "The car went off the side of the bridge... The car turned over..." Kennedy describes his "agency" for the driving until he loses control of the vehicle, after which he attempts to make it sound like he is the victim of the car's actions.
Question: Have you ever used illegal drugs.
Answer: I don't use illegal drugs.
The responder changes the tense from past to present in an attempt to produce an indisputable statement, that is, assuming the person is not on drugs at the time of the interview.
Details Told Out of Order, Dark Holes
A common technique in police questioning is to have the suspect narrate the same event repeatedly, looking for details told in different sequences.
The deceptive narrator may also leave dark holes of missing time spaces, first presenting minute by minute and then skipping ahead by hours.
The deceptive person may inject details that sound like they happened but may not have actually occurred such as, he "began" to have an asthma attack, she "started" on her way home, he "tried" to open the door or she "intended" to call him.
An investigator should always be on alert for possible deception whenever a witness says honestly, truthfully, I swear to God, to tell the truth, honest to God, etc. In many cases, this type of swearing is over-determined, and something the truthful narrator would not feel compelled to say.
Not Answering the Question that Was Asked, Answering a Question with a Question
A person who does not answer the question that is asked may be withholding information or attempting to distract the questioner.
Question: Tell me Colonel, in your 25 years, do you know of any colleague, any officer who committed adultery, fraternized and got away with it?
Answer: The point is we have established professional relations, responsibilities that go across the board for Air Force-wide for men, for women, overseas, in the United States.
Question: Is there any truth to that at all?
Answer: Why would a man of my age, 57, pick this moment in my life to become a child molester?
Too Many, Too Few, and Other Imbalances
The deceptive narrator will tend to offer too many unnecessary words or details, too few words or details or may imbalance the story by loading the prologue or epilogue while skimping on the main event.
Author McClish covers a number of interesting statements related to highly publicized cases such as O.J. Simpson, JonBenet Ramsey, Bill Clinton and Monica Lewinsky and the Michael Jackson molestation allegations.
I once worked on a plaintiff medical negligence case in which a nurse, in describing a delivery room emergency, switched pronouns back and forth several times from "I did x" to "we did y."
The nurse was attempting to imply, without perjuring herself, that the doctor was in the delivery room during the entire time of the emergency. In looking at her statement, I felt that the doctor may not have been in the room during the parts of the narrative in which she used the "I" pronoun. This proved to be what happened, revealing a negligent breach by the doctor. The case settled shortly after this discovery.
In the preponderance of litigation, fact witnesses provide narrative statements of critical events during discovery. As a litigator, it is sure to be worth the time you spend honing your skills to catch narrative deception.