You’ve got 3 nines which you think should win you the hand, but one guy is just not going out.  Does he have a triplet of a higher card, or is he just bluffing?  Maybe he pulled an inside straight, or a low full house.  You look for signs, a “tell” that will let you know whether he’s bluffing or not.  Nothing…he’s got a POKER FACE!

 

Through the years, the one complaint I have heard the most from lawyers is that they hate when they go to court and are surprised when something their client swore to them is true, isn’t true.  You stand up there unprepared, trying to fake your way through, hoping to get a moment free so you can strategize again.  If only you could tell in advance when your client was telling the truth or lying.  Well, researchers are clear about discovering when someone is lying – you sort of can, sometimes, maybe.

 

A professor from Radford University presented a study at a Society for Police and Criminal Psychology conference in Rome, Italy that showed forensic psychologists were about as good as undergraduates when trying to tell if someone was lying.  He compared the two groups and found neither were particularly good and there was no difference between them.  Great news, huh?  What he did say was when either group used a system, or checklist of cues of deception, or statement analysis, both groups got better; and, with some training, both groups got pretty good.  How about that?   He proved psychologists are trainable.  Hooray for research!

 

But can you train lawyers and judges?  We shall see.  What we do know is lawyers are probably not much better than undergraduates or others without training, but they think they are (as do psychologists).  So, let’s go step-by-step.  First, you need to learn a couple of macros in the detection of deception.  In interviewing criminals, law enforcement in general, and the FBI in particular have found that people who are trying to convince you of information have a much higher level of being guilty than people who are trying to convey information.  The same holds true with witnesses hiding information versus witnesses who are open with information.  The convince-convey statements hold up to scrutiny so well that a buzz-phrase has been created in law enforcement stating that “a man is as guilty as the amount of energy he expends to prove that he is not.”  The problem is, some situations call for a person to be in convincing mode.  Shouldn’t most people try to convince you at some point?

 

While this is good question, when you work to detect deception, you need to seek the opportunities to determine truth from fiction.  The divorce case where you ask for information and all you get is accusation, the criminal case where you start getting excuses why others are wrong; these are clear signs of deception.  More subtle signs come when people start into convincing mode at the end of a sentence or even slip it in-between sentences.  Or when you ask every question three times and find inconsistencies.  When they start convincing you that the person found with a knife in their back was the love of their life, or how much they live for their children, and when these “convincing” statements start to interfere with getting a history; pay attention, you might be getting more story than fact.  Being tuned into deception means really looking at what a person is doing and what the context is.

A second macro to understand is that people who are trying to deceive you increase their deceptive behavior when they are not telling the truth.  We’ve all read the stupid articles telling about signs like looking down to the left, or moving a foot when you are lying.  Well, these signs are not signals of deceptive in everyone, but the mainstream media likes to wrap it all up neatly.  There is no one or two behaviors that give away that someone is lying.  However, there are lists of behaviors that tend to increase in lying situations, and it is likely that when someone is lying certain behaviors on that list will increase – you just don’t know which ones, so you have to go down the list.  The key here is to make an observation when the person is not lying, something simple like talking about a football game or what someone is wearing, then look at the increase of the behaviors during sensitive material.  Truth-tellers appear pretty relaxed or show some anxiety symptoms, but liars demonstrate and increase in lying behaviors.  Knowing the behaviors gives you a heads up. A great article on what behaviors show up in research on deception was in Psychological Reports in 2003.

 

The best way to detect deception is to set up a baseline period, then create a time where all the conditions and context are right for lying.  Then ask your sensitive questions.  This way you can compare the language and the behavior, and concentrate only on signs of deception, not all the other things that go on in a conversation in a law office.  When you take a short time to solely focus on deception, you become much more astute and get better information.

 

Of course there are thousands of little subtleties to detecting deception, perhaps better shown in a training or two.  Then, there’s “statement analysis” brought to the FBI by the Mossad, Israeli’s intelligence, and that is a whole different multi-day course. But these two basic macros will give you a good start.

 

This writer was called in as an expert on a high-profile wrongful death suit on the West coast last year.  There was an actual belt-tape made as the scene unfolded and a taped interview with the officers made a few days afterwards.  The police department was claiming it was a suicide-by-cop and had a ton of experts from the west coast to verify the claim.  The department didn’t think they would have to pay anything.  Statement analysis showed both tapes didn’t match up to a suicide-by-cop.  But also in the taped interviews, the cops showed definite signs of not being truthful.  Well, during the deposition, I indicated the outward reasons it didn’t seem like a suicide-by-cop, and the attorney said he had enough experts to convince a jury that would make the claim that it was suicide-by-cop.  “My expert can beat up your expert” was his feeling.  I then indicated that I had done a deception analysis and there were clear signs the officers weren’t being truthful.  I showed him a few things on the tapes that matched with the FBI Academy interrogation material on deception and statement analysis.  Lawyers from both sides of the case were non-responsive, in fact I thought for a second I had screwed up.  I had to fly home quickly so I didn’t even get feedback from the attorney on my side.  I got a call a week later that the case was settled for a large amount (over 1 million) and it was mostly due to the last minute lying protocol I showed them in the deposition.   The defense lawyers said they saw what I indicated on the tape and didn’t think the jury would do well with the information since it was so apparent.  They said they were convinced their cops were lying!  Detection of deception can be some powerful stuff, particularly when it is obvious.  It took me close to a year to get paid, and I lost big fees testifying by my comments at the deposition, but that is a different article.

 

So, my advice is to plan a little of your initial session and definitely some time before a trail to check for the veracity of the information you are getting from you own client so you don’t get surprised.  Or send them to a professional for sort of an “honesty checkup” on their story.  It will sure make your life easier and stop you from fumbling around trying to get through a day when the truth comes marching in.  Don’t get caught putting all your money in the pot because your client has a Poker Face!

 

Dr. Aumiller is the executive director of the Society for Police and Criminal Psychology, an international network of police and forensic scientists, therapist and researchers.  He consults in the court systems of Long Island and lectures throughout America and Europe.