...therefore crucial triers of fact to be capable of discriminating between truths and lies accurately. However, a large body of empirical research suggests that humans, judges and jurors included, are poor at this task, with rates of accuracy predominately no greater than chance levels. 'Aided' lie detection methods, such as polygraphy and brainfingerprinting, have been asserted to provide more consistent results, but these conclusions are questionable as are the scientific bases of these 'lie detector machines'. This article reviews these issues and critically analyses the current means of assessing honesty in the Australian criminal justice system.

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Although people may prefer not to acknowledge it, lying is a normal, natural, indispensable facet of daily life. (1) Evidence suggests humans lie and are lied to, successfully, (2) about one to two times a day, (3) or possibly much more frequently. (4) The majority of these deceptions involve outright, albeit mostly 'harmless', lies, often referred to as 'white lies', (5) that are helpful, indeed frequently 'necessary', to facilitate comfortable social interaction. (6) Notwithstanding the frequency of everyday untruthful communications, when one is faced with the task of accurately identifying dishonesty in others, performance is typically poor. This is, to a significant degree, attributable to incorrect assumptions about deceitful behaviours that are held to be true.

Despite popular misconception, people's lies are not telegraphed via cues as blatant as Pinocchio's telltale nose. (7) In fact, a growing body of research demonstrates that the verbal and non-verbal features associated with deception are contrary to expectation and are typically undetectable or misinterpreted. In daily social interactions, this need not provoke concern. Think for a moment how difficult and confrontational everyone's daily lives would be if every truthful thought were uttered, or every untruth palpable. People would find themselves far less willing to interact with one another for fear of hurtful and confrontational exchanges. Just as alcohol is a social lubricant, deception is a social prophylactic; it shields people from unpalatable and potentially damaging truths and interpersonal confrontations.

Although a degree of undetected duplicity is beneficial in everyday interactions, when it comes to the investigation and prosecution of criminal transgressions, all but the guilty yearn for something as conspicuous and incriminating as a nose that grows when an untruth is uttered by its bearer. As a result, concerted effort is being exerted to improve knowledge of the nature of deception; its evolutionary origins; common manifestations; and, most importantly, its physiological and neurological cues. This effort will aid in the development of mechanisms for dependable lie-detection measures for use in the criminal justice system.

Lies and Deception (8)

Vrij defines deception as 'a successful or unsuccessful deliberate attempt, without forewarning, to create in another a belief which the communicator considers to be untrue' (emphasis removed). (9)

There exists a hierarchical order of lies. (10) Outright lies (11) are complete fabrications, in which the truth is wholly disregarded and new information generated and presented as the truth. Interestingly, these are the most prevalent of all lies. (12) Exaggerations (13) involve lies that overstate or downplay the truth. Subtle lying (14) is the intentional misuse of literal truths or the omission of pertinent facts to create a false impression. (15) It is important to recognise that this hierarchical order relates to the nature of the lie in its relationship to the truth, not its degree of severity.

Lies and Deception in Litigation

As lying is a common, integral part of everyday life, it is obvious that the criminal justice system is not immune from its occurrence. Indeed, with high stakes and emotionally charged situations, the likelihood of attempts at deception would be likely to be greater than in non-litigious daily interactions. This is not to suggest that all who come before the courts are blatant liars, driven by self-interest. It may be that the vast majority of persons in the criminal justice system who act dishonesty are those who engage in 'exaggeration' or 'subtle lying' as defined herein.

Witness testimony, including that of experts, is inherently fallible. Many studies have brought into issue the reliability of witness memory, suggestibility, and perception. (16) Therefore, even witnesses who are attempting to be completely honest and impartial may only present aspects of the truth, while also omitting pertinent details and/or replacing them with erroneous information. This problem is confounded by personal investment in the case. The litigants are generally the most invested, with their families, friends and colleagues a close second. Independent eye witnesses and expert witnesses are theoretically detached, but in practical terms there is at least some degree of personal interest in the outcome of the litigation. (17)

Arguably, as a result of this personal investment, Loftus and Doyle have noted that it is 'common for a witness' thoughts to bend in a direction that would be self-advantageous'. (18) This may be reflected in witnesses' testimony. Generally, this entails no more than an unconscious and mostly inconsequential bias exhibited by every individual when asked to comment upon something of personal relevance. That is, individuals have a typical tendency to describe an event with a particular slant or emphasis based upon their perception of, involvement in, or relationship to the event and/or the parties concerned. At the other end of the spectrum, persons in the legal arena may engage in deliberate attempts at deception. They may discard the truth completely or substantially, replacing it with fabricated information. At its most extreme, this form of dishonesty may manifest as false confessions, denials, accusations, or alibis, and testimony and charges founded upon 'planted' or otherwise false evidence.

It is apparent that the inclusion of inaccurate evidence may have many deleterious ramifications. The acceptance of fallacious evidence may lead to wrongful convictions or acquittals, which would certainly affect those intimately involved in the given case and might also have a wider-reaching impact.

Deception Prevention in Litigation

Due to the serious consequences of deception in criminal litigation, some safeguards have been implemented to try to eliminate or at least reduce the occurrence. As a preliminary filtering mechanism, police officers interview the complainant, (19) interrogate the suspect/s, (20) and evaluate the available evidence. Should the investigating officers believe there are sufficient grounds to support the accusations levelled against the suspect, the relevant office of the Director of Public Prosecutions, and the defendant's lawyer in turn, carefully scrutinise the details of the case.

As a further safeguard against dishonesty in litigation, there are criminal sanctions in place to punish those found to have engaged in efforts to mislead the court. Primarily, these involve contempt and perjury proceedings. (21)

In terms of expert witnesses, there are also increasingly stringent guidelines being implemented, including the introduction of codes of conduct that must be acknowledged and adhered to by the expert. (22)

Lie Detection--The Four Stage Model

Broadly speaking, deception detection comprises a four stage process:

1. Observation--watching and listening to the speaker in a particular context.

2. Identification--the ongoing process of identifying and noting certain aspects of the speaker's presentation that pique the observer's interest.

3. Interpretation--the process of evaluating the speaker's presentation to gauge intent, affect, personality, mood, and so on.

4. Determination--the making of a definitive assessment of the speaker and his or her presentation: honest or deceitful; truthful or untruthful.

The interpretation phase is the most complex, variable, and individualised of the four stages, due in part to the identification strategy adopted. (23) Interpretation might occur in an 'isolated' or 'global' framework. When 'isolated', the observer is making his or her judgement based upon the one experience, without prior, independent observation or interaction, and in the absence of relevant, independent knowledge. In the 'global' setting, the observer has previously encountered the speaker and knows him or her in some way, and/or possesses information that is directly relevant to the factual assessment of credibility.

Interpretation is complicated and generally hampered by 'deception' and 'generic' mental 'scripts'. 'Deception scripts' comprise often erroneous assumptions about how liars behave (24) and who they are. 'Generic scripts' (25) encompass stereotypes, biases, and general assumptions, formed during a lifetime's experience. (26) They include racial stereotypes, (27) personal biases, global biases, myths, urban legends, and common knowledge inferences.

Lie Detection in Litigation

Attempts at lie detection can be traced over many centuries. The early Egyptians, Chinese, Arabs, and English had, by today's standards, rather rudimentary and on occasions barbaric methods of resolving disputes and determining witness credibility. These included erroneous beliefs about non-verbal deceptive behaviour, (28) trial by battle and by ordeal, (29) and the use of torture, truth serums, and phrenology. (30) From early Roman times, these pseudo-scientific methods were gradually abandoned in favour of the current criminal justice model founded upon the assessment of oral witness testimony, (31) supported by tangible evidence.

Many lie detection strategies are currently being used, researched, and developed for application within the criminal justice system and in other contexts. Broadly speaking, these can be divided into 'unaided' and 'aided' lie detection methods. 'Unaided lie detection' refers to the various strategies employed by humans as 'lie detectors' in their own right. 'Aided lie detection' concerns what is more popularly thought of when discussing deception detection, namely the use of specifically designed lie-detector apparatuses. These two types of lie detection methods will be discussed in turn.

Unaided Lie Detection--Humans as Lie Detectors

DePaulo, Zuckerman, and Rosenthal point out:

to most scholars of deception, a lie detector is a machine ... To a much smaller number of scientists, a lie detector is a person, attempting to discern dissimulation with the help of perhaps a hunch, some special sensitivity, or a few lay theories, but without any access to brain waves, heart beats, or breathing rates. (32)

Larson notes that, although some may through their words alone telegraph their dishonesty, (33) when people 'do not confess with their mouths, then they confess with their body'. (34) In other words, people assume that when someone lies, their demeanour, (35) or non-verbal displays, (36) give them away. (37) As a result, it is confidently assumed that laypersons can accurately detect deception by utilising 'common sense'. (38) Assessing a person's credibility in this manner principally entails the observation, identification, and interpretation of certain verbal and non-verbal cues that go to the overall impression of the suspected deceiver and the relevance, value, and veracity of what is being said. Despite laypersons' confidence in their abilities, (39) many studies have suggested that humans are poor lie detectors, (40) with findings consistently placing accuracy rates at approximately equivalent to chance. (41) There are three main explanations for these findings.

First, many individuals...

NOTE: All illustrations and photos have been removed from this article.



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