The use of nonverbal communication when assessing witness credibility: a view from the bench

Abstract

The aim of this article is to provide a better understanding of how, in practice, judges use nonverbal communication during bench trials. The article starts with an overview of legal rules on how judges are supposed to assess witness credibility and use nonverbal communication, and briefly addresses the impact of those rules on lower courts and the limited data about judges in bench trials. Subsequently, we present the methods and the results from an online survey carried out with Quebec judges. While a number of judges have beliefs consistent with the scientific literature, findings reported in this article show that many judges have beliefs inconsistent with the scientific literature, and many are silent on culture-related differences in nonverbal behavior. The article ends with a discussion on the implications of the results for scholars and practitioners, including why findings reported in this article are cause for concern for adversarial justice systems.

Nonverbal communication has long played a decisive role in determining the outcome of trials. During the Middle Ages, for example, trials by ordeal, also known as judgments of God, were used to ascertain whether an individual accused of committing a crime was guilty or innocent. The belief was that God would hold harmless innocent individuals who underwent the physical ordeals. This would result in injuries observable by human eyes. The red iron ordeal is a striking example. As part of a spiritual ceremony, a piece of burning iron was placed in the hand of the individual who had to take a few steps. The piece was then dropped, the hand was bandaged, and a few days later, the wound was examined. Depending on what the wound looked like, a decision was made (Pilarczyk, 1996; White, 1961). Although such horrific methods are no longer used, the observation of nonverbal cues can still play a decisive role in determining the outcome of trials. In adversarial justice systems (e.g. Canada, the United States), nonverbal communication is integral to the assessment of witness credibility (Denault, 2020). The aim of this article is to provide a better understanding of how, in practice, judges use nonverbal communication during bench trials.

The article starts with an overview of legal rules on how judges are supposed to assess witness credibility and use nonverbal communication, and briefly addresses the impact of those rules on lower courts and the limited data about judges in bench trials. Subsequently, we present the methods and the results from an online survey carried out with Quebec judges featuring 24 questions addressing issues of nonverbal communication and witness credibility. The article ends with a discussion on the implications of the results for scholars and practitioners, including why, although not surprising, findings reported in this article are cause for concern for adversarial justice systems.

The impact of nonverbal communication in courtrooms

Credibility, a ubiquitous characteristic of human communication (Buller & Burgoon, 1996), depends on a variety of factors, including how the nonverbal behavior of individuals being judged is perceived (Burgoon, Birk, & Pfau, 1990; Guyer, Briñol, Petty, & Horcajo, 2019). Therefore, it comes as no surprise that nonverbal behavior, and more generally, nonverbal communication,¹ plays a central role in credibility judgments, in everyday life, but also in high-stakes situations, including in courtrooms (Denault, 2015). However, unlike everyday life, there are legal rules on how judges are supposed to assess witness credibility and use nonverbal communication. Those legal rules, their impact on lower courts and the limited data about judges in bench trials are addressed hereafter.

How judges are supposed to assess witness credibility

‘The ultimate aim of any trial, criminal or civil, must be to seek and to ascertain the truth’ (R. v. Nikolovski, 1996, p. 1206). How the truth is sought and ascertained, however, depends on whether the trial is held in inquisitorial or adversarial justice systems. Unlike inquisitorial justice systems, plaintiffs and defendants in adversarial justice systems oversee the gathering and the presentation of evidence. Thus, during bench trials, for example, judges are more passive than active, but depending on the jurisdiction, the scope of questions they can ask may vary. Then, from the evidence gathered and presented, judges must determine the factual framework (i.e. what happened?) to which they will apply the law (Paciocco, 2010). This determination is made through testimonial and documentary evidence, although ‘witness testimony is often the most important component of a trial’ (Boccaccini, 2002, p. 161). And when it comes to giving more or less weight to what a witness says, judges will assess credibility, which can be defined as ‘that quality in a witness which renders his evidence worthy of belief’ (Black, 1968, p. 440). Although ‘credibility is an issue that pervades most trials, and at its broadest may amount to a decision on guilt or innocence’ (R. v. Handy, 2002, p. 951), credibility assessment is especially critical in trials where the evidence is ambiguous or contradictory (Porter & ten Brinke, 2009). But how are judges supposed to assess witness credibility? This depends on the jurisdiction.

For example, in the United States, where jury trials are more common, ‘the jury is the lie detector in the courtroom’ (United States v. Barnard, 1973, p. 912). And according to the Supreme Court of the United States, ‘[jurors] are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men’ (Aetna Life Ins. Co. v. Ward, 1891, p. 88). Likewise, in Canada, where bench trials are more common, judges are prohibited from hearing testimonies of expert witnesses focusing on the issue of credibility assessment (R. v. Marquard, 1993). This is because, according to the Supreme Court of Canada, ‘credibility is a matter within the competence of lay people. Ordinary people draw conclusions about whether someone is lying or telling the truth on a daily basis’ (R. v. Marquard, 1993, p. 248).² Therefore, according to the Supreme Court of Canada, ‘credibility must always be the product of the judge or jury’s view of the diverse ingredients it has perceived at trial, combined with experience, logic and an intuitive sense of the matter’ (R. v. Marquard, 1993, p. 248). The assessment of witness credibility is considered to be more of an ‘art than a science’ (R. v. S. (R. D.), 1997, p. 537), and judges should not use predetermined sets of criteria. According to the Supreme Court of Canada,

It is neither desirable nor possible to state hard and fast rules as to when a witness’s evidence should be assessed by reference to ‘adult’ or ‘child’ standards – to do so would be to create new stereotypes potentially as rigid and unjust as those which the recent developments in the law’s approach to children’s evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. (R. v. W. (R.), 1992, p. 134)

This position of the Supreme Court of Canada, however, is inconsistent with the scientific literature. For example, if judges must assess credibility after evaluating the witness’s mental capacity, and the ability to understand and to communicate, but are not trained to do this, how can judges really apply the guidelines of the Supreme Court of Canada? And while it is true that judges, like everyone else, make veracity judgments on a daily basis, and should not use predetermined sets of criteria, research has found consistently that veracity judgments, based on the observation of nonverbal cues, are accurate half of the time, whether the observer is a student or a presumed lie expert (e.g. police officer, judge, psychiatrist; Aamodt & Custer, 2006; Bond & DePaulo, 2006, 2008). In other words, the chance of accurately determining if someone is honest or dishonest based on observation alone is usually no better than chance. But this does not prevent higher courts from promoting the observation of nonverbal cues. According to the Supreme Court of Canada, for example, ‘it is the task of the judge or jury to weigh the probative value of each witness’s evidence on the basis of factors such as demeanor, internal consistency, and consistency with other evidence, and to thus determine whether the witness’s evidence should be accepted in whole, in part, or not at all’ (R. v. DAI, 2012, p. 163).

How judges are supposed to use nonverbal communication

Although the use of nonverbal communication to assess witness credibility, also known as demeanor in the legal community, has long been described as unfounded (Blumenthal, 1994), it is a core feature of adversarial justice systems. In the United States, for example, nonverbal communication is part of the confrontation clause, which provides that ‘in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him’ (U. S. Const. amend. VI). According to the United States Supreme Court, this explains why the witness is compelled ‘to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief’ (Mattox v. United States, 1895, pp. 243–244). Face-to-face testimonies before the trier of facts is also part of the due process in many U.S. civil trials (Wellborn, 1990–1991).

Likewise, in Canada, nonverbal communication is a central component of court proceedings, and serves two purposes. According to the Supreme Court of Canada, ‘nonverbal communication can provide the cross-examiner with valuable insights that may uncover uncertainty or deception, and assist in getting at the truth. Covering a witness’s face may also impede credibility assessment by the trier of fact, be it judge or jury’ (R. v. N. S., 2012, pp. 743–744). The highest court of the country continues by pointing out that ‘trial judges (and juries) have the ‘overwhelming advantage’ of seeing and hearing the witness – an advantage that a written transcript cannot replicate’ (R. v. N. S., 2012, p. 744). This ‘overwhelming advantage’ explains, among other things, why appellate courts rarely review judgments where the deciding factor is the witnesses’ credibility, because appellate courts do not to see and hear witnesses (R. v. Gagnon, 2006). But how are judges (in bench trials and jurors in jury trials) supposed to put in practice their ‘overwhelming advantage’ of seeing and hearing the witness? The higher courts provide guidelines.

For example, the Supreme Court of Canada writes that judges can consider ‘the significant pauses in the responses, the changes in facial expression, the looks of anger, confusion and concern’ P. (D.) v. S. (C.), 1993, p. 192). The highest court of the country also gives examples of what can be inferred from the observation of nonverbal cues:

The general integrity and intelligence of the witness, his powers to observe, his capacity to remember and his accuracy in statement are important. It is also important to determine whether he is honestly endeavouring to tell the truth, whether he is sincere and frank or whether he is biased, reticent and evasive. All these questions and others may be answered from the observation of the witness’ general conduct and demeanour in determining the question of credibility. (White v. The King, 1947, p. 272)

This position of the Supreme Court of Canada, however, is inconsistent with the scientific literature. Research has found that nonverbal cues cannot be ‘read’ like a book. Their meanings are influenced by a variety of factors. As Hall, Horgan, and Murphy (2019) highlight, ‘there is no dictionary of nonverbal cue meanings, because contextual factors involving encoders’ intentions, their other verbal and nonverbal behaviors, other people (who they are and their behavior), and the setting will all affect meaning’ (p. 271). In other words, there’s no way of inferring specific meanings from ‘the significant pauses in the responses, the changes in facial expression, the looks of anger, confusion and concern’ P. (D.) v. S. (C.), 1993, p. 192). This adds to the erroneous assumption that demeanor allows judges to know the witnesses’ integrity, intelligence, observational power and memory capacity, the accuracy of their statements and if they are honest or biased. There is no more science to this erroneous assumption than to trials by ordeal during the Middle Ages and to claims that the ‘body never lies’ often made, still today, by so-called ‘body language experts’ on traditional and social media (Smith, 2020; Tait, 2021). More than 60 years of scientific research has found that such claims are, at best, unfounded or, at worst, discredited (Denault et al., 2020). Not to mention that, even if this erroneous assumption was founded, which it is not, there is not a shred of evidence that judges have the ability to adequately appraise the witnesses’ nonverbal behavior. The curriculum of judges generally focuses on the in-depth study of law.

The impact on lower courts

Criticisms of legal rules on how judges are supposed to assess witness credibility and use nonverbal communication are severe. And they are especially so considering that, according to the Supreme Court of Canada, judges can use their intuitions, common sense and experiences, ‘so long as those experiences are relevant to the cases, are not based on inappropriate stereotypes, and do not prevent a fair and just determination of the cases based on the facts in evidence’ (R. v. S. (R. D.), 1997, p. 501). In other words, the Supreme Court of Canada warns against some prejudices and stereotypes, but promotes other prejudices and stereotypes. Not to mention that, for legal practitioners, there is no formal and widespread training regarding the impact of prejudice and stereotypes in their curriculum, often leaving this subject to continuing education and pseudoscientific training (Denault, 2020; Denault et al., 2020). Thus, it comes as no surprise that unfounded and discredited beliefs are found in decisions of lower courts.

For example, although gaze aversion is not a sign of dishonesty, and can be influenced by several factors, including the witnesses’ culture (Doherty-Sneddon & Phelps, 2005; McCarthy, Lee, Itakura, & Muir, 2006; Weeks, Howell, & Goldin, 2013), a Québec court concluded the opposite. Gaze aversion was used to justify the conclusion that a witness was lying:

Having carefully observed the accused during his testimony and noted his great nervousness, his shifty eyes and his numerous hesitations in cross-examination, the court is convinced that [the defendant] simply forged his version of the facts according to the evidence disclosed, and that he thereby blatantly lied to the court. (R. v. Martin, 2017, p. 27, our translation)

While displaying gaze aversion can damage credibility, and making eye contact can strengthen it, honest witnesses can display gaze aversion, and dishonest witnesses can make eye contact. Research has found that there are no more reliable nonverbal cues of dishonesty than there are of honesty (DePaulo et al., 2003; Luke, 2019; Sporer & Schwandt, 2007). Regardless, an Ontario court wrote that ‘assessing body language and making eye contact can be of great assistance in deciding whether or not to accept a guilty plea, as well as weighing and making determinations about sentencing submissions’ (R. v. Kerr, 2020, p. 5). And a Québec court considered making eye contact a sign of honesty:

The court carefully observed the nonverbal behavior [of the witnesses] during their testimony. These young men answered questions frankly and spontaneously to questions, looking in the eyes of the president of the tribunal during their testimony. They offered a credible testimony that cannot be dismissed. (Bessette v. Brisson, 2004, p. 4, our translation)

While being far from anecdotal (Denault, 2015), these excerpts from decisions of lower courts provide only a partial view on how, in practice, judges use nonverbal communication during bench trials. The appraisal of nonverbal communication often happens outside of conscious awareness (Patterson, 2019). And even if judges use nonverbal cues, they are under no obligation to mention them. As the Supreme Court of Canada points out, ‘it is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events’ (R. v. Gagnon, 2006, p. 629). And although ‘the reasons proffered by the trial judge in support of his decision are presumed to reflect the reasoning that led him to his decision’ (R. v. Teskey, 2007, p. 278), how judges use nonverbal communication during bench trials, as described in decisions of lower courts, is probably the ‘tip of the iceberg’ (Denault, 2020). The importance of studying this issue is also stressed by the limited data about judges in bench trials.

The limited data about judges in bench trials

Research suggests that unfounded and discredited beliefs about nonverbal communication are widespread, including among police officers (Akehurst et al., 1996; Bogaard et al., 2016; Colwell et al., 2022; The Global Deception Team, 2006; Vrij et al., 2006; Zuckerman et al., 1981). However, while police officers play a central role within the justice system, they are not the ones who, ultimately, deliver justice. Judges (in bench trials and jurors in jury trials) do. However, compared to mock-jurors in jury trials (e.g. Chalmers et al., 2022; Heath, 2009; van Doorn & Koster, 2019), the issue of how, in practice, judges use nonverbal communication in bench trials is rarely addressed.

For example, almost 20 years ago, Strömwall and Granhag (2003) surveyed justice practitioners from Sweden, including judges, on their beliefs about deception detection. At the time, to Strömwall and Granhag’s knowledge, this was a first. The survey featured seven items, including specific nonverbal and vocal behavior – that is, gaze behavior, body movements and pitch, as well as specific verbal behavior – that is, consistency of consecutive statements and details. The forced-choice answer scale asked judges if liars exhibited more, as much or less of these behaviors. The ‘don’t know’ answer was the fourth possibility. Two final questions were about accuracy and reliability. Participants were asked whether interrogators or observers were more accurate, and whether verbal or nonverbal cues were more reliable. Strömwall and Granhag concluded that ‘police officers’, prosecutors’ and judges’ perceptions of how different factors relate to deception are remarkably inconsistent with the results stemming from studies investigating actual cues to deception’ (p. 31). Subsequently, despite these important findings, the issue of how, in practice, judges use nonverbal communication in bench trials received little attention, and when addressed, results were inconsistent.

Wessel et al. (2006), for example, studied the impact of emotional behavior on the assessment of witness credibility. A total of 53 Norwegian judges watched a videotaped statement of a young actress acting as a victim, displaying congruent emotions (e.g. occasional sobs, hesitating), neutral emotions or incongruent emotions (e.g. occasional smiles, relaxed), and answered a questionnaire about the victim’s credibility. Wessel et al. concluded that ‘in contrast to lay people, the credibility ratings of court judges and their votes for a guilty verdict were not influenced by the emotions displayed by the witness’ (p. 221), a conclusion like that of Brownsell and Bull (2011) who surveyed magistrates from England. Their survey featured 61 behaviors typically associated with deception, including 46 about nonverbal and vocal behaviors (e.g. pauses, shaky voice, shrugs, tense posture, twitches, eye contact), and on a 7-point Likert answer scale, participants had to indicate how strongly they thought the 61 behaviors indicated honesty or dishonesty. Brownsell and Bull concluded that ‘the majority of magistrates, regardless of experience or age, predominantly regarded verbal and non-verbal behaviours as not being indicators of deception/truth-telling’ (p. 42).

The above examples (Brownsell & Bull, 2011; Strömwall & Granhag, 2003; Wessel et al., 2006) show that the issue of how, in practice, judges’ use of nonverbal communication during bench trials is far from settled, all the more considering unfounded and discredited beliefs are found in decisions of lower courts. And because nonverbal communication plays a central role in credibility judgments (Denault, 2015), and credibility judgements pervade most trials (R. v. D.A.I., 2012), a better understanding of how, in practice, judges’ use of nonverbal communication during bench trials is of paramount importance. To address this issue, data from an online survey carried out with Québec judges to learn more about their knowledge and professional practices are presented.

Method

The online survey was sent to judges and judicial organizations from Québec, including some who, in the past, invited the first author to give lectures addressing issues of nonverbal communication and witness credibility. Because of the limited number of judicial organizations in Québec, prior contacts with judicial organizations were not a disqualifying factor and, on the contrary, were deemed a unique opportunity to recruit participants typically difficult to access unless having prior contacts with them. The judicial organizations, whose names are not disclosed to respect confidentiality requests and agreements, agreed to forward the survey to their members, but the exact number of judges it was forwarded to is unknown to the authors. Before answering the survey, judges had to provide informed consent, and to accept the terms of the survey. Once the online survey started, judges were free to accept, or to decline, to answer any question. To maintain anonymity, we did not ask for names and identifying information.

Overall 87 judges provided consent and participated in the study. A total of 46 judges answered 24 questions, 5 judges answered 23 questions, 1 judge answered 21 questions, 1 judge answered 19 questions, and 4 judges answered only 1 question. Based on the responses of those who answered questions about gender and experience, a total of 28 women and 25 men answered the online survey. They presided over trials for an average of 8.17 years. Considering previous research (e.g. Wessel et al., 2006), and the notorious difficulty of obtaining data from judges in bench trials, the number of judges who answered was, in our opinion, sufficient to present observations on the issue of how, in practice, judges use nonverbal communication during bench trials, more so considering the purpose of the online survey was not to generalize our data to other judges in Québec, Canada, or the United States.

The online survey addressed issues of nonverbal communication, witness credibility, witness preparation and the impact of the COVID-19 pandemic on trials, but only answers for the 24 questions addressing issues of nonverbal communication and witness credibility are reported in this article. Those questions were created by the first and the second author as part of this research project. Their objective was to offer a broad picture of the impact of nonverbal communication in courtrooms, starting with the assessment of witness credibility, allowing judges to freely position themselves on the issue, and to end with specific beliefs about nonverbal communication, and the sources of the judges’ knowledge.

In this article, to facilitate their reading, the answers for the 24 questions addressing issues of nonverbal communication and witness credibility are organized in five sections (see Table 1). The first section presents the answers to two open-ended questions about what makes a witness credible and not credible. A total of 51 judges answered one or both questions, and their answers featured three themes – that is, the delivery, the content and the context of testimonies. The second section presents the answers to a third open-ended question about their advice for new judges on how to assess the credibility of a witness. A total of 55 judges answered the third question, and their answers featured three similar themes – that is, the delivery, the content and the cautionary issues. To develop the themes in the first and second sections, a four-step qualitative thematic analysis was conducted (Braun & Clarke, 2006, 2022). Following the immersion and familiarization with all aspects of the data, the first author manually collated them into potential themes and subthemes. To make sure the themes and subthemes matched the data set, they were subsequently reviewed until they were coherent, consistent and distinctive, and were then checked against each other and refined until further refinement would not add anything substantial. Finally, the themes and subthemes were defined and named, and the narrative of the results was written.

Table 1.

The online survey.

Questions	Types
What make s a witness credible and not credible?	Open-ended
1. In your opinion, what makes a witness credible?
2. In your opinion, what makes a witness not credible?
How to assess the credibility of a witness	Open-ended
3. If you had one piece of advice to give to a judge who has to assess the credibility of a witness for the first time, what would it be?
The consideration given to aspects of communication	Forced-choice scale
4. When assessing the credibility of a witness, how much consideration do you give to the words he or she speaks at trial?
5. When assessing the credibility of a witness, how much consideration do you give to the way he or she speaks (e.g. tone of voice, volume, rate of speech) during the trial?
6. When assessing the credibility of a witness, how much consideration do you give to the way he or she dresses during the trial?
7. When assessing the credibility of a witness, how much consideration do you give to the way he or she behaves during the trial?
Specific beliefs about nonverbal communication	Forced-choice scale
8. The meanings of facial expressions are universal
9. The meanings of gestures are universal
10. In a face-to-face interaction, facial expressions and gestures convey 93% of the message
11. It is possible to know what a person is thinking by ‘decoding’ their nonverbal behavior
12. Depending on where a witness scratches, it is possible to get a clue that he is lying or telling the truth
13. Depending on where a witness looks, it is possible to get a clue that he is lying or telling the truth
14. Depending on the position of the witness’s body, it is possible to get a clue that he is lying or telling the truth
15. The fact that a witness moves his or her feet while speaking is a sign of lying
16. The fact that a witness moves his or her hands while speaking is a sign of truthfulness
17. The fact that a witness is hesitant is a sign of lying
18. The fact that a witness is spontaneous is a sign of truthfulness
19. The fact that a witness is incoherent is a sign of lying
20. The fact that a witness is emotional is a sign of truthfulness
The sources of the judges’ knowledge	Multiple-choices
21. What is the primary source of your knowledge on witness credibility assessment?
22. What is your level of knowledge of the scientific literature about nonverbal communication?
23. Would you be able to explain what the peer review process is when publishing a scientific article?
24. Would you be able to explain what the confirmation bias is?

The third section presents the answers to four questions about the consideration given to aspects of communication – that is, the consideration judges give to the words witnesses use, as opposed to how they speak (e.g. tone of voice, volume, rate of speech), dress and behave. Each of them could be answered by (1) no importance, (2) low importance, (3) good importance, or (4) significant importance. Moreover, following their answers, judges could add comments. The narrative of those comments was also written following a four-step qualitative thematic analysis (Braun & Clarke, 2006, 2022).

The fourth section presents the agreement/disagreement with specific beliefs about nonverbal communication. A total of 13 statements were presented in the online survey. Each of them could be answered by (1) strongly disagree, (2) somewhat disagree, (3) somewhat agree, or (4) strongly agree. The 13 statements were identified based on previous research about unfounded and discredited beliefs (e.g. Denault & Jupe, 2018; Denault et al., 2020; Denault et al., 2015).

The final section presents the answers to four multiple-choice questions about the sources of the judges’ knowledge – namely, about their primary source of knowledge on witness credibility, their level of knowledge of the scientific literature about nonverbal communication and their ability to explain the peer-review process and the confirmation bias.

All questions featured in the online survey were in French, all answers were in French, and all questions and answers reported here in English are translations from French done by the first author with the help of DeepL, an online translation application similar to Google Translate (Reber, 2018).

Results

What make a witness credible and not credible?

The delivery of testimonies

When asked ‘In your opinion, what makes a witness credible?’, and ‘In your opinion, what makes a witness not credible?’, judges alluded to nonverbal communication – that is, the delivery of testimonies. For example, witnesses who are spontaneous, who are reasonably confident and calm, who are prepared and who answer questions, but who do not talk too much and who do not exaggerate, should be considered more credible. The same holds for witnesses described as authentic, transparent, honest, sincere, modest, precise and objective. A judge wrote that a credible witness ‘relates the events as they happened, without trying to improve the truth, to justify himself or to look good’.

The delivery of testimonies can also be detrimental. For example, witnesses who are hesitant,³ who are overly confident, who recite ready-made answers and, as one judge puts it, ‘who insist on unimportant details . . . [and] who question the testimony of others, without being asked to comment’, should be considered less credible. And according to other judges, witnesses changing the style of their delivery from examination to cross-examination can undermine their credibility. The same holds for witnesses described as evasive, unsure, impatient, arrogant, defiant, theatrical and annoying, unless justified – for example, if lawyers ask annoying questions.

Finally, judges indicated that specific nonverbal behavior can undermine the witnesses’ credibility. Those include witnesses moving their body, changing the tone of their voice, looking angry and averting gaze, notably when their testimonies get tougher and when others are testifying. A judge wrote that ‘some habits appear when the witness is lying, for example, licking their lips! Beware of answers that start with “honestly”’.

The content of testimonies

Besides nonverbal communication, judges alluded to the content of testimonies.⁴ They mentioned, for example, that reasonable, logical or consistent testimonies can strengthen the witnesses’ credibility. The same holds for direct, precise and nuanced answers. As one judge points out, ‘The simplicity of his testimony, when the story flows naturally and it is not difficult or complicated [can strengthen credibility]’. ‘For the most part, credible witnesses have clear answers and memories of what happened’, as another judge points out. Judges also mentioned that witnesses acknowledging facts against their own interest, admitting that they forgot, that they don’t know the answer, should be considered more credible.

The content of testimonies can also be detrimental. Judges indicated, for example, that inconsistencies and contradictions can undermine the witnesses’ credibility, unless they are minor, or explainable, such as if witnesses are nervous or have mental health issues. The same holds for unclear answers. A judge wrote that ‘too many pitfalls in testimony, too many details, too complicated [can undermine credibility]. The truth is simple, the lie is difficult’.

Finally, judges indicated that witnesses who change their version, who omit information, who deny unpleasant and obvious facts, including those proven by experts, and who justify parts of their testimony, including their memory lapses, rather than describing their experiences, should be considered less credible. And according to other judges, witnesses playing with semantics, feigning misunderstanding, and forgetting answers to detrimental questions, but remembering answers to beneficial question can undermine their credibility, just as witnesses who have a perfect memory. As one judge points out, ‘I am just as suspicious of perfect stories as I am of those that have many bumps in the road’. And as another judge points out:

If the witness only remembers what is relevant to his or her case but has forgotten the rest, it affects his or her credibility. Too good a memory can also be suspect. We underestimate the fact that we often don’t remember much! Trials can take place years after the fact. Unless the witness can say why he or she remembers something accurately, the testimony may be suspect.

The context of testimonies

In addition to the delivery and content of testimonies, a part of the judges alluded to the context of testimonies. They indicated, for example, that the witness credibility should not be assessed in a vacuum. That is, testimonial and documentary evidence should be considered in their entirety. And according to other judges, witnesses are presumed to be of good faith, and witnesses who are not related to the litigants, and who have nothing to win or to lose from the outcome of the trial, should be considered more credible.

How to assess the credibility of a witness?

The delivery issues

When asked ‘If you had one piece of advice to give to a judge who has to assess the credibility of a witness for the first time, what would it be?’, judges highlighted, for example, the importance to consider how witnesses speak, including if they are hesitant, spontaneous or evasive. Judges also highlighted the importance to carefully observe witnesses, including their eye directions, gestures, facial expressions and body movements. A judge wrote that observation should take place ‘from the moment . . . [the witness] enters the room to the moment he leaves it, to understand the reason for the change in attitude that he may display as he moves from the interrogation to the cross-examination’. As one judge points out, new judges should ‘develop a note-taking technique that allows more time to observe the witness than to look at the paper’. And as another judge points out, new judges should ‘look into the witness’s eyes when you ask a question and look into their eyes when they answer’. Some also mentioned the importance, where possible, of making witnesses feel comfortable.

The content issues

Besides the delivery issues, judges highlighted, for example, the importance to carefully listen to witnesses, and to take the time to understand what they are trying to say, to evaluate other testimonial and documentary evidence, to compare the witnesses’ answers with each other, and with other evidence, and to assess whether they have a good or selective memory. Some also mentioned the importance, where possible, of asking questions and rephrasing answers to better understand testimonies.

The cautionary issues

In addition to the delivery and content issues, while some judges indicated the importance of trusting their instinct, and their skills acquired through experience, other judges appear to disagree, and emphasize the importance of being prepared and focused, reading the file, knowing facts and witnesses, letting lawyers do their job, and following the evidence. Judges warned against relying on ‘body language’ and on the witnesses’ nervousness and composure, because honest witnesses can be intimidated by courtrooms, and dishonest witnesses can be prolific at lying. A judge wrote that the focus should be on ‘inconsistencies in the testimony rather than the facial expressions or gestures of a witness’. Several judges also warned against biases and intuitions, and against making conclusions before the end of trials, before having considered testimonial and documentary evidence in their entirety. That is, new judges should keep an open mind. As one judge points out, ‘Do not play lie detector. Until proven otherwise, the witness is telling the truth’. ‘Assess the credibility of a witness only when the evidence is contradictory and not preponderant. This is the last thing you should do to rule on a dispute’, as another judge points out.

The consideration given to aspects of communication

Although judges warned against relying on ‘body language’, results reported so far show that the delivery of testimonies cannot be overlooked. Furthermore, judges highlighted the importance to carefully listen and observe witnesses. But what consideration do judges give to words used by witnesses, as opposed to how they speak (e.g. tone of voice, volume, rate of speech), dress, and behave? (See Table 2.)

Table 2.

The consideration given to aspects of communication.

	1: No importance		2: Low importance		3: Good importance		4: Significant importance		Scores
	n	%	n	%	n	%	n	%	M
1. When assessing the credibility of a witness, how much consideration do you give to the words he or she speaks at trial?	4	7.55	11	20.75	25	47.17	13	24.53	2.89
2. When assessing the credibility of a witness, how much consideration do you give to the way he or she speaks (e.g. tone of voice, volume, rate of speech) during the trial?	8	15.09	23	43.40	20	37.74	2	3.77	2.30
3. When assessing the credibility of a witness, how much consideration do you give to the way he or she dresses during the trial?	19	37.25	28	54.90	4	7.84	0	0.00	1.71
4. When assessing the credibility of a witness, how much consideration do you give to the way he or she behaves during the trial?	3	5.66	11	20.75	29	54.71	10	18.86	2.87

Words used by witnesses

Regarding the words used by witnesses (i.e. ‘When assessing the credibility of a witness, how much weight do you give to the words he or she speaks at trial?’), the consideration is substantial. A total of 71.70% of judges who answered the question gave a good (n = 25) or significant (n = 13) importance, while 28.30% gave low (n = 11) or no (n = 4) importance. A total of 42 of the 53 judges who answered the question added comments.

For those who gave low or no importance to the words used by witnesses, judges commented, for example, that it is contingent upon education, that the witnesses’ ability to report facts may differ, but that does not make them untrustworthy. As one judge points out, ‘the important thing is to understand the testimony and not necessarily the words used’. However, according to some judges, word choice can, depending on the context, undermine the witnesses’ credibility, such as when using aggressive or insulting words. The same holds when using words that are too specific or too similar to those of other testimonies. ‘In some cases, the use of certain words may indicate that they have been suggested’, as another judge points out.

For those who gave good or significant importance to the words used by witnesses, judges commented, for example, that word choice, although contingent upon education, but also culture, personality and mental health of witnesses, is important, and can reveal their reliability, as well as their thoughts and their feelings, just as silences and spontaneous words (e.g. slips of the tongue) can. A judge even wrote that ‘The knowledge of NLP [Neuro Linguistic Programming] is a useful tool in the appreciation of the testimony’. Judges also commented that witnesses reciting ready-made answers, and witnesses using words that they don’t understand, that are technical without any apparent reason and that seem not to be in their vocabulary should be considered less credible.

Finally, a number of judges who gave a good or significant importance to the words used by witnesses appear to exercise caution. According to some judges, witnesses who sometimes get lost in words can still be credible, and because witnesses all speak differently, and their first language can be different from that of judges, it is important to consider the context of testimonies and to clear up any ambiguity.

How witnesses speak

Regarding how witnesses speak [i.e. ‘When assessing the credibility of a witness, how much consideration do you give to the way he or she speaks (e.g. tone of voice, volume, rate of speech) during the trial?’], a total of 41.51% of judges who answered the question gave a good (n = 20) or significant (n = 2) importance, while 58.49% gave low (n = 23) or no (n = 8) importance. A total of 41 of the 53 judges who answered the question added comments.

For those who gave low or no importance to how witnesses speak, judges commented, for example, that everyone has their own way of speaking and their own tone of voice, resulting from a variety of factors, including their culture and their personality, and how witnesses speak has nothing to do with credibility. As one judge points out, ‘what always matters in the end is what the witness says’. Judges also commented that nervousness can influence the way witnesses speak, but this is normal when testifying, and not a sign of deception. ‘One can lie with conviction and tell the truth with hesitation’, as another judge points out. However, the tone of the voice can still be important. A judge wrote that ‘we look for variations in behavior. It is true that some people will tell their “lies” in a lower tone, but others will not’.

For those who gave good or significant importance to how witnesses speak, judges commented, for example, that if witnesses shout, and have an aggressive and insulting tone, this can undermine their credibility, just as if witnesses hesitate or change how they speak throughout the testimony, particularly when more contentious issues are addressed. Judges also commented that how witnesses speak allows them to draw firm conclusions, including on their emotion or their sincerity. As one judge points out, ‘a witness who claims to be as gentle as a lamb but who gets carried away when the debate gets heated is an important clue’. ‘Aside from certain personal factors (soft voice, lack of language, disabilities), a witness who is telling the truth is often able to speak relatively clearly’, as another judge points out.

Finally, a number of judges who gave a good or significant importance to how witnesses speak appear to exercise caution. According to some judges, how witnesses speak is subject to misinterpretation. As one judge points out, ‘[Witnesses] may be nervous because it is their first time testifying and not necessarily because they are lying’. And as another judge points out, ‘not everyone is fortunate enough to have learned to express themselves clearly. For some, the court is intimidating, and it makes them lose their temper’.

How witnesses dress

Regarding how witnesses dress (i.e. ‘When assessing the credibility of a witness, how much consideration do you give to the way he or she dresses during the trial?’), a total of 7.84% of judges who answered the question gave a good (n = 4) or significant (n = 0) importance, while 92.16% gave low (n = 28) or no (n = 19) importance. A total of 40 of the 51 judges who answered the question added comments.

For those who gave a low or no importance to how witnesses dress, judges commented, for example, that it is contingent upon a variety of factors, including status, job, wealth, culture, personality, mental health and whether witnesses are represented by a lawyer. As one judge points out, ‘it would be unfair to penalize a litigant for this issue’. Judges also commented that conclusions about veracity, credibility and honesty cannot be drawn based on how witnesses dress. But according to other judges, how witnesses dress can, depending on their financial means, show their respect for the tribunal, and their concern for their own testimony, but also arouse suspicion, and undermine their credibility, for example when clothing accessories (e.g. cap) hide the witnesses’ face and gaze. And as another judge points out, ‘a witness who looks like a hoot can damage his credibility’. It should be noted that the existence of biases is mentioned, although some judges commented that they have too much to do during trials to consider how witnesses dress, and that the time between the trial and the writing of their decision negates any impact. And for those who gave good or significant importance to how witnesses dress, judges commented, for example, that how witnesses dress can show their effort to respect the decorum, and their concern to look good and to be professional.

How witnesses behave

Regarding how witnesses behave (i.e. ‘When assessing the credibility of a witness, how much consideration do you give to the way he or she behaves during the trial?’), the consideration is similar to that given to words used by witnesses. A total of 73.58% of judges who answered the question gave a good (n = 29) or significant (n = 10) importance, while 26.42% gave low (n = 11) or no (n = 3) importance. A total of 44 of the 53 judges who answered the question added comments.

For those who gave low or no importance to how witnesses behave, judges commented, for example, that nuanced and objective behavior can strengthen their credibility, while deviating behavior and being excessive and hesitant when asked simple questions can undermine their credibility. Judges also commented that how witnesses behave, including signs of nervousness, should not be used. A judge wrote that ‘behavior may reflect whether or not a witness is comfortable testifying, but comfort is not necessarily an indication of credibility’.

For those who gave good or significant importance to how witnesses behave, judges commented, for example, that showing respect, being calm and polite and showing neutrality can strengthen their credibility, while the opposite can undermine their credibility. The same holds for witnesses with a theatrical and exaggerated attitude, and for witnesses who are asked to dispose of gum or remove a hat. As one judge points out, ‘a witness who, by his or her behavior, demonstrates that he or she does not take the process seriously may be implying that he or she places little importance on the obligation to tell the truth’. And as another judge points out, ‘it is important that . . . [the witness] looks at the judge. If he looks away, it may indicate that he is lying. If he looks too much at the lawyer of a litigant, he may be looking for approval and checking to see if he has “answered correctly”, which may suggest that his testimony is fabricated’.

Furthermore, judges commented that how witnesses behave (e.g. eye directions, gestures, tone of voice and body posture) can be relevant, and confirm or contradict what they are saying, or what they are accused of, such as when, during a trial, an allegedly aggressive accused testifies aggressively. As one judge points out, ‘a witness who does not tell the whole truth will behave nervously, erratically, irritably or overly’. And as another judge points out, ‘some witnesses reveal their true personalities in the courtroom despite their best denials’.

Finally, a number of judges who gave good or significant importance to how witnesses behave appear to exercise caution. According to some judges, how witnesses behave is subject to misinterpretation. As one judge points out, ‘what we are looking for is a discrepancy between the way the witness behaves normally and when testifying. However, the “normal” state is not always known’. And as another judge points out, ‘some witnesses can be very stressed even though they have a very good record and give very credible testimony’. Therefore, rather than being used to assess witness credibility and to draw firm conclusions, judges indicated that how witnesses behave should be used to help reassure them and to ask them questions. It should be noted that the existence of biases is also mentioned. A judge wrote that ‘it’s not that x behavior leads to y response because we often only see what we want to see. On the other hand, I think it is utopian to think that behavior has no effect’.

Specific beliefs about nonverbal communication

Results reported so far show that how witnesses speak and behave matters. But what is the agreement/disagreement with specific beliefs about nonverbal communication? First, as shown in Table 3, a number of judges somewhat or strongly disagree with the statements about the universality of facial expressions (77.36%) and the universality of gestures (92.31%). Nevertheless, many judges somewhat or strongly agree that ‘in a face-to-face interaction, facial expressions and gestures convey 93% of the message’ (28.31%), and that ‘it is possible to know what others think by “decoding” their nonverbal behavior’ (35.85%).

Table 3.

Specific beliefs about nonverbal communication.

	1: Strongly disagree		2:Somewhat disagree		3: Somewhat agree		4:Strongly agree		Scores
	n	%	n	%	n	%	n	%	M
1. The meanings of facial expressions are universal	20	37.74	21	39.62	11	20.75	1	1.89	1.87
2. The meanings of gestures are universal	23	44.23	25	48.08	4	7.69	0	0.00	1.63
3. In a face-to-face interaction, facial expressions and gestures convey 93% of the message	10	18.87	28	52.83	14	26.42	1	1.89	2.11
4. It is possible to know what a person is thinking by ‘decoding’ their nonverbal behavior	15	28.30	19	35.85	18	33.96	1	1.89	2.09
5. Depending on where a witness scratches, it is possible to get a clue that he is lying or telling the truth	42	80.77	7	13.46	2	3.85	1	1.92	1.27
6. Depending on where a witness looks, it is possible to get a clue that he is lying or telling the truth	26	50.00	16	30.77	9	17.31	1	1.92	1.71
7. Depending on the position of the witness’s body, it is possible to get a clue that he is lying or telling the truth	24	45.28	24	45.28	5	9.43	0	0.00	1.64
8. The fact that a witness moves his or her feet while speaking is a sign of lying.	38	71.70	14	26.42	1	1.89	0	0.00	1.30
9. The fact that a witness moves his or her hands while speaking is a sign of truthfulness	34	64.15	17	32.08	2	3.77	0	0.00	1.40
10. The fact that a witness is hesitant is a sign of lying	25	48.08	22	42.31	5	9.62	0	0.00	1.62
11. The fact that a witness is spontaneous is a sign of truthfulness	11	20.75	14	26.42	23	43.40	5	9.43	2.42
12. The fact that a witness is incoherent is a sign of lying	6	11.32	21	39.62	24	45.28	2	3.77	2.42
13. The fact that a witness is emotional is a sign of truthfulness	21	39.62	28	52.83	4	7.55	0	0.00	1.68

Second, a number of judges somewhat or strongly disagree that depending on where witnesses scratch (94.23%), and where they look (80.77%), and how they position their body (90.56%), ‘it is possible to get a clue that he is lying or telling the truth’. Third, a number of judges somewhat or strongly disagree that feet movements are signs of lying (98.12%) and that hand movements are signs of truthfulness (96.23%), and that being hesitant is a sign of lying (90.39%) and that being emotional is a sign of truthfulness (92.45%). Nevertheless, a substantial proportion of judges somewhat or strongly agree that being incoherent is a sign of lying (49.05%), and that being spontaneous is a sign of truthfulness (52.83%).

The sources of the judges’ knowledge

Results reported so far show that the agreement/disagreement with specific beliefs about nonverbal communication varies widely. This raises questions about the sources of the judges’ knowledge – namely, their primary source of knowledge on witness credibility, their level of knowledge of the scientific literature about nonverbal communication and their ability to explain the peer-review process and the confirmation bias.

Figure 1 shows that experience is the primary source for more than a third of judges, whether their own experience (n = 18) or the experience of others (n = 2). And the primary source for more than a third of judges is courses or seminars taken outside (n = 14) or inside (n = 7) university. For other judges, their primary sources of knowledge about witness credibility assessment are books (n = 5) and judgments (n = 5) they read.

Figure 1.

What is the primary source of your knowledge on witness credibility assessment?

Finally, when questioned on their level of knowledge of the scientific literature about nonverbal communication (Figure 2), more than half of judges (n = 32) believed their level of knowledge was either limited (n = 28) or non-existent (n = 4). And when questioned about their ability to explain the peer-review process (Figure 3) and the confirmation bias (Figure 4), only about a quarter of judges (n = 15) answered that they would be able to do so perfectly.

Figure 2.

What is your level of knowledge of the scientific literature about nonverbal communication?

Figure 3.

Would you be able to explain what the peer review process is when publishing a scientific article?

Figure 4.

Would you be able to explain what the confirmation bias is?

Discussion

The aim of this article was to provide a better understanding of how, in practice, judges use nonverbal communication during bench trials. We presented the methods and results from an online survey carried out with Québec judges featuring 24 questions addressing issues of nonverbal communication and witness credibility. Findings reported in this article are congruent with the limited data about judges in bench trials, and show that the delivery of testimonies cannot be overlooked, that how witnesses speak and behave matters. Furthermore, judges highlighted the importance to carefully listen and observe witnesses.

The gap between science and practice

While a number of judges have beliefs consistent with the scientific literature, similar to findings reported by Brownsell and Bull (2011) and Wessel et al. (2006), findings reported in this article show that many judges have beliefs inconsistent with the scientific literature, similar to findings reported by Strömwall and Granhag (2003), and many are silent on culture-related differences in nonverbal behavior. While cause for concern for adversarial justice systems, findings reported in this article are not surprising considering the sources of the judges’ knowledge. More than half of judges believed that their level of knowledge of the scientific literature about nonverbal communication was either limited or non-existent, and only about a quarter of judges answered that they would be able to perfectly explain what the peer-review process and the confirmation bias are.⁵

Contrary to what several judges believe, research has found that nonverbal cues cannot be ‘read’ like a book. Their meanings are influenced by a variety of factors (Hall et al., 2019). The same holds for facial expressions. And while it was long held that contractions of facial muscles revealed emotions, this view is meeting unprecedented challenges by the scientific community (Barrett et al., 2019). In addition, new evidence suggests that the facial expressions originally thought to be universal are simply not (Crivelli & Fridlund, 2018), and contrary to what several judges believe, research has found that nonverbal cues like Pinocchio’s nose do not exist. There are no more reliable nonverbal cues of dishonesty than there are of honesty (DePaulo et al. 2003; Luke, 2019; Sporer & Schwandt, 2007). This raises questions about how judges put in practice their ‘overwhelming advantage’ of seeing and hearing the witness, as instructed by the Supreme Court of Canada.

Because nonverbal communication is integral to the assessment of witness credibility (Denault, 2020), and because ‘credibility is an issue that pervades most trials, and at its broadest may amount to a decision on guilt or innocence’ (R. v. Handy, 2002, p. 951), having beliefs inconsistent with the scientific literature, like being silent on culture-related differences in nonverbal behavior, could lead to misinterpretation of words used by witnesses, and of how witnesses speak, dress and behave, and, ultimately, distort the outcome of trials. That is, when the initial impression of the witnesses’ trustworthiness results from unfounded and discredited beliefs, even if judges do not use predetermined set of criteria (R. v. W. (R.), 1992), confirmation bias may lead judges to overestimate evidence that confirms their initial, but faulty, impression, and to underestimate contradicting or ambiguous evidence. As a result, confirmation bias may lead judges to be overconfident in their final, but faulty, impression of the witnesses’ trustworthiness (Porter & ten Brinke, 2009). This can result in miscarriage of justice. This is alarming considering a number of judges appear to be unfamiliar with the confirmation bias.

The scope of the results beyond the online survey

The online survey was answered by a limited number of judges from Québec, and obviously there is no way of determining whether our data can generalize to other judges in Québec, Canada or the United States. And this was not the purpose of the online survey. However, this does not make the findings reported in this article any less important. Like false confessions, it is not necessary to know the prevalence of unfounded and discredited beliefs about nonverbal communication to understand their devastating impact. One false confession is one false confession too many, one miscarriage of justice is one miscarriage of justice too many, and because of their devastating impact, the scientific community is actively engaged in the subject. The level of engagement of the scientific community should be the same for unfounded and discredited beliefs about nonverbal communication, especially since findings reported in this article confirm previous findings. For example, using decisions of lower courts, Denault (2015) highlighted that the ‘attention paid to nonverbal behaviour by many decision makers has little or no clear connection with scientifically validated and recognized knowledge’ (p. 126, our translation; see also Bandes 2014, 2016). This is unsurprising considering that beliefs about deception and lying are similar across cultures (The Global Deception Resarch Team, 2006) and across jobs (e.g. Granhag et al., 2005; Strömwall, & Granhag, 2003; Vrij et al., 2006; Vrij & Semin, 1996).

In addition, if their curriculum is like that of the judges who responded to the online survey, it is unlikely that the responses of other judges in Québec, Canada or the United States would be much different. In Québec, for example, judges are typically required to be lawyers, and all lawyers have to go through a Bachelor of Laws. But to our knowledge, there is no comprehensive course on witness credibility. Lawyers are left to fend for themselves, and eventually, when becoming members of the judiciary, their intuitions, common sense and experiences acquired through years of law practice are likely to become central to their new role. And because appellate courts rarely review judgments where the deciding factor is the credibility of witnesses (R. v. Gagnon, 2006), judges rarely receive feedback on issues of nonverbal communication and witness credibility. Therefore, judges could turn to unfounded and discredited beliefs about nonverbal communication throughout their career, without ever being informed of the problem. This should also not be overlooked.

However, it could be argued that, when becoming members of the judiciary, depending on the jurisdiction, other judges in Québec, Canada or the United States receive extensive training to change their habits acquired through years of law practice. However, as Denault (2020) points out, ‘waiting for lawyers to become members of the judiciary to introduce them to these subjects, expecting them to change their years old habits overnight, is irresponsible, if not delusional’. Not to mention that continuing education sometimes promotes pseudoscience (Denault et al., 2020). This is why issues of nonverbal communication and witness credibility should be comprehensively addressed as soon as possible during the Bachelor of Laws.

Encouraging aspects and challenges for the future

Despite all the above, findings reported in this article give reason for hope. A number of judges have beliefs consistent with the scientific literature, and judges warned against relying on ‘body language’. Nevertheless, what makes witnesses credible differs from judge to judge. This is also cause for concern for adversarial justice systems. Witnesses can unknowingly undermine their credibility if they behave against the judges’ expectations. That is, exhibiting nonverbal behavior judges consider to be related to dishonesty, and concealing nonverbal behavior judges consider to be related to honesty. This makes the outcome of trials uncertain, even if witnesses are telling the truth. And because the appraisal of nonverbal communication often happens outside of conscious awareness (Patterson, 2019), this all indicates that unfounded and discredited beliefs about nonverbal communication will not, for the most part, find their way in decisions of lower courts, thus making them unappealable.⁶

Finally, given all the above, it could be argued that justice would be better served if it were really blind. The argument that judges should dismiss nonverbal behavior in courtrooms has been made in the past (e.g. Vrij & Turgeon, 2018). However, in addition to the limited impact of such instructions (Bogaard & Meijer, 2022), nonverbal behavior in courtrooms, although rarely discussed in the legal community, serves important functions other than distinguishing who is honest and who is dishonest (Denault et al., 2019). Not to mention that several trials are not about distinguishing who is honest and who is dishonest (Schepple, 1985). A detailed account is beyond the scope of this article (for a detailed account, see Denault & Patterson, 2021), but important functions of nonverbal behavior in courtrooms, like any face-to-face interactions, include displaying affects, revealing attitudes, managing impressions and regulating interactions (Hall et al., 2019). This adds to the importance witnesses place on feeling listened to in courtrooms, which is sometimes considered to be more important than being proven right (ADAJ, 2018). Findings reported in this article thus reinforce the importance of providing members of the judiciary with scientific knowledge about the use of nonverbal communication when assessing witness credibility that can aid them in establishing evidence-based practices and improving the administration of court proceedings and, ultimately, the public confidence in the justice system.

Conclusion

Many judges have beliefs inconsistent with the scientific literature, and many are silent on culture-related differences in nonverbal behavior. While not surprising, findings reported in this article are cause for concern for adversarial justice systems. In response to such findings, it would be simplistic to point the finger and blame judges who play a crucial, often very difficult, role in justice systems, a pillar of democracy for societies based on the rule of law. But those who determine the content of the curriculum, including universities and lawmakers, have a far greater share of responsibility. Judicial organizations, on the other hand, likely do what they can with what they have when lawyers to become members of the judiciary. They find themselves with the impossible task of changing habits acquired through years of law practice, to mitigate prejudices and stereotypes, when in fact, this issue should have been addressed long before. Unfortunately, the lack of attention on the issue of how, in practice, judges use nonverbal communication during bench trials probably explains why today, witness credibility assessment sometimes has no more scientific basis than trials by ordeal during the Middle Ages. But today, the lack of knowledge is not an excuse anymore.

Ethical standards

Declaration of conflicts of interest

Vincent Denault has declared no conflicts of interest

Chloé Leclerc has declared no conflicts of interest

Victoria Talwar has declared no conflicts of interest

Ethical approval

All procedures performed in studies involving human participants were in accordance with the ethical standards of the institutional and/or national research committee [Université de Montréal’s Ethics Committee, #CERSC-2020-105-D] and with the 1964 Helsinki declaration and its later amendments or comparable ethical standards.

Informed consent

Informed consent was obtained from all individual participants included in the study