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Demeanor Evidence: the fallacy of pseudoscience in Canadian courtrooms

Tansi!


Regardless of your cultural background, there are inherent cultural practices that affect the way you interact with society. For example, the way eye contact is interpreted differs significantly between cultures and even between individuals. Whereas “maintaining eye contact during social interaction is a more important principle for Western European” culture,[1] it does not translate the same for Indigenous peoples. In fact, Indigenous peoples on Turtle Island typically don’t see eye contact as all that important.[2] For Indigenous peoples, the maintaining of eye contact is not a common practice - which may be due to cultural teachings, gender roles, or the after-effects of imbalanced relationships with authority figures at residential schools.[3]



For some Indigenous peoples, looking at the speaker is less important than listening to the words being said.[4] Residential school survivors recall incidents of when eye contact lead to church or school officials inflicting physical punishments upon them.[5] This type of preconditioning has resulted in Indigenous peoples refraining from maintaining eye contact when interacting with those in authoritative positions (such as police, the judiciary, or the crown). Unfortunately, this has been interpreted by the colonial justice system as the behaviour of someone who is deceptive and untrustworthy. Interpretation of an individual’s demeanor relies on a subjective interpretation of another’s non-verbal cues, which is devoid of any objective scientific criteria.[6] Demeanor evidence therefore remains a pseudoscience and reliance on this fallacy risks the misinterpretation of “messages” which is inherently prejudicial against Indigenous peoples because they often do not maintain eye contact to the western-european standard.[7]


Western culture dominates the interpretation of eye contact

Due to colonialism, the dominant culture in Canada is based on western Europe and therefore their interpretation of societal values has been given greater weight than Indigenous perspectives.[8] Western culture dictates that maintenance of eye contact communicates the message that you are respectful, you’re engaged in the conversation and most importantly, in the context of the colonial justice system, that you are trustworthy.[9] According to Bella M. DePaulo et al, when individuals are “motivated to succeed, they make significantly less eye contact when lying, than when they told the truth.”[10] The manner in which facial expressions, including eye contact, are interpreted differs considerably depending on whether the impressions are based on a subjective or objective approach of interpreting these non-verbal cues.[11] Often a western-orientated individual utilizes the subjective approach to interpreting the non-verbal cues of another culture. While a subjective approach may be beneficial in other circumstances, it is inappropriate to utilize it when assessing an individual’s demeanor because a subjective approach often leads to the interpreter to conclude that the individual is lying, despite the lack of objective criteria.[12]


Trauma-informed lawyering is a relationship model that centers on “cultural humility." [13]

From the justice system viewpoint, the determination of whether someone is trying to deceive the court often comes down to demeanor evidence [14] - which is the subjective interpretation of the witness’ conduct while testifying. The problem is easy enough to point out: lack of eye contact does not equate deception. In fact, “a calm and eloquent witness may be an incorrigible liar who has mastered the art of effective deceit, and that the hesitant and flushed witness is simply intimidated by the environment of the judicial debate.”[15]


The danger of relying on demeanor evidence

Wrongful convictions. Simply put, the outcome for Indigenous peoples within the criminal justice system when demeanor evidence is relied upon, is a higher likelihood of a wrongful conviction. Whether the trier of fact chose not to believe the accused, or the investigating officer interpreted the accused’s demeanor as deceptive, the justice system wrongly relies on the fallacy of demeanor evidence, therefore resulting in wrongful convictions, or in some cases false confessions.[16]


Preventing future harms

Finding solutions for the fallacy of demeanor evidence (including the pseudoscience applied to interpretation of eye contact) requires all actors within the justice system to undergo proper cultural competency training.[17] As a part of cultural competency, those within the justice system must also understand the legal practice from the trauma-informed approach.[18] Everyone from the judiciary to those who work within the court system, ought to have proper trauma-informed training in order to prevent further harms from spreading throughout the courtroom.[19] Without engaging in these methods of preventing future harm, the gatekeepers (such as the judiciary and lawyers) responsible for reducing these harms, will continue to inflict trauma.


It is time to change the way those of us within the justice system interact with our Indigenous peoples.


Until next time,


Reconciliaction YEG













References:


[1] Uono, S., & Hietanen, J. K. (2015). Eye contact perception in the West and East: a cross-cultural study. PloS one, 10(2), e0118094. https://doi.org/10.1371/journal.pone.0118094 at 2.


[2] Indigenous Corporate Training Inc., “Eye Contact and Aboriginal Peoples” (11 April 2012), online (blog): Indigenous Corporate Training Inc. <https://www.ictinc.ca/blog/eye-contact-and-aboriginal-peoples>.


[3] Duncan McCue, “Indigenous Customs and Protocols”, online: Reporting in Indigenous Communities <https://riic.ca/the-guide/in-the-field/indigenous-customs-and-protocols/>.


[4] Supra note 2.


[5] Ibid.


[6] See generally: Brent Snook et al, “Assessing Truthfulness on the Witness Stand: Eradicating Deeply Rooted Pseudoscientific Beliefs about Credibility Assessment by Triers of Fact” (2017) 22:297 Can. Crim. L. Rev.


[7] Peter J. Sankoff, Law of Witnesses and Evidence in Canada, Rel 21-4 Chapter 12: Cross Examination of an Opposing Witness: Witnesses and Credibility: Demeanor Evidence (Toronto: Thomson Reuters Canada Limited, 2021).

[8] Kent Roach, “The Wrongful Conviction of Indigenous People in Australia and Canada”, (2015) 17 Flinders Law Journal at 221, online (pdf): Innocence Canada <https://innocencecanada.com/assets/Uploads/PDFs/Kent-Roach-WC-of-Indigenous-People.pdf>.


[9] see generally: Supra note 3.


[10] Bella M. DePaulo et al, “Cues to Deception” (2003) 129:1 Psychological Bulletin 74-118 at 97.


[12] Ibid at 101.


[14] See Sharma v Raval 2016 ABQB 404, 2016 CarswellAlta 1392 at para 342.


[15] R. v. Gauthier, 2020 QCCA 751 at para 49.


[11] Note: a subjective approach relies on the inherent perceptions and biases of the individual interpreting the information before them. Whereas an objective approach will rely on scientific methods of interpreting information that refrains from the inclusion of the interpreter’s personal opinions, biases, or beliefs.


[17] Supra note 8 at 205, 209.


[18] Zena Olijnyk, “Trauma-informed lawyering a useful tool in working with victims, survivors” (26 August 2021), online: Canadian Lawyer <https://www.canadianlawyermag.com/resources/legal-education/trauma-informed-lawyering-a-useful-tool-in-working-with-victims-survivors/359277>.


[19] Ibid.

[13] Ibid.


[16] Tim Fontaine, “Justice Denied: 5 times Indigenous people were wrongfully convicted in Canada” (30 April 2016) online: CBC News <https://www.cbc.ca/news/indigenous/justice-denied-5-times-indigenous-people-wrongfully-convicted-canada-1.3559644>; See generally: Innocence Canada, “Preventing False Confessions”, online (video) <https://innocencecanada.com/the-latest/innocence-canada-exclusives/preventing-false-confessions-video/>.


Photo from: https://www.lifecoachcode.com/2017/04/18/why-struggle-to-maintain-eye-contact/


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