A little hopping on the niqab bandwagon

In the widespread debate about the recent niqab in court controversy,* one of the things that strikes me is how little anyone participating in the debate actually knows about the influence of demeanour on the accurate assessment of evidence. I add myself to that group. I know little about it either. I do know that there is a significant body of work in such fields which can and should inform judgments about whether a woman wearing a niqab in court to give evidence would make the jury’s job harder. So I have had a quick look and came across this study. It is a meta-analysis of jury research by Michael Saks (6 S. Cal. Interdisc. L.J. 1 (1997-1998) What Do Jury Experiments Tell Us about How Juries (Should) Make Decisions). A key passage says this:

Trial courts put enormous stock in assessment of the credibility of witnesses as a vital path to correct factfinding. Moreover, they have remarkable faith in the ability of factfinders to evaluate credibility by using demeanor evidence. Appellate courts routinely defer to trial court factfinding based in part on the notion that the factfinders at

The question, then, is how good are we humans at using demeanor evidence to detect truth-telling or lying? A considerable amount of research has been conducted in recent decades, on nonverbal behavior and the detection of deception. The findings indicate that demeanor cues often reduce
accuracy in detecting deception, by distracting people into looking at cues they think are associated with lying and overlooking cues that actually are. …

…Apparently, facial cues provide little help and sometimes do more harm than good. By contrast, subjects given transcripts alone are better at detecting deception than any of the conditions we have considered thus far…. Speech sounds alone, with no visual cues at all, raise performance further…. So much for the notion that nonverbal channels of communication carry more information than verbal channels for human deception detectors to rely upon. Adding body cues to speech raises performance to its height …. Adding facial cues to speech-with or without body cues drags performance below what it was with speech alone. In sum, jurors would be better advised to disregard witnesses’ faces if they want to maximize their ability to detect deception, or just wear a blindfold and listen closely. Appellate judges listening to an audiotape would do at least as well as jurors (or, presumably, trial judges) who had access to both face and body cues ….

I am not saying this study is the last word, or even the right word, on the subject (I’d have to immerse myself in the literature for a while to be confident and I only have fifteen minutes on the computer before my daughter needs to do her homework to do that), but this sort of research is little known to lawyers and judges, who insist that demeanour is very important to judging witness veracity. There is at least a plausible, evidence-based case, that this is not so – and the reverse may even be true. The belief that we can assess honesty through demeanour is part of legal folklore but it may also be a myth.

* With their customary thoughtfulness Adam Wagner, Carl Gardner, Joshua Rozenberg and David Allen Green have all blogged in much more depth on some of the legal issues surrounding the case.

See also this from Sajid Suleman makes some similar points about pychological studies. Matthew Scott’s excellent blog is also on point and leads to this paper from Hazel Genn.

9 thoughts on “A little hopping on the niqab bandwagon

  1. Richard, an interesting set of observations. But a thought. Is there any research on niqab wearing and evdence in those countries where the niqab is not seen as part of the ‘other’ ie common law countries with oral evidence traditions and ( very) significant Muslim populations – India, Malaysia, Singapore, Nigeria and Pakistan come to mind. I wonder if the perception of the wearer of a niqab in the sense of it being abnormal and perhaps a ‘threat’ of sorts is related to views about credibility.

  2. I hope you don’t mind me pointing out that I agree with your tentative thoughts about the value of demeanour being over-rated in assessing a witness’s credibility. And if assessing an ordinary witness’s demeanour is difficult, how much harder to make sense of a woman forced to unveil herself in public for possibly the first time in her adult life. If anyone is interested in my views on this I wrote about it in a bit more detail here: http://barristerblogger.com/2013/09/17/veiled-defendants-allowed-give-evidence/

  3. To allow facial coverings in a court of law is almost the last bastion of common sense, where security and laws of the land are cast aside for fear of offending. Religion shouldn’t over-ride the laws of the land. Arguably if denying the Niqab in court is seen as a breach of European human rights that means that it sets a precedence where Sharia Law essentially over-rides UK law. Does that then mean that forced marriages, the genital mutilation of children and marriage of adult men to girls under the age of 16 are permissable because stopping them would be prevention of religious freedom?

    I would say this isn’t about jurors needing to see faces to assess reactions, it’s more about opening a door to much wider and far reaching consequences.

    Secondarily, what would prevent someone starting a new ‘religion’ which could deliberately flaunt laws and the powers of courts under the guise of protection of religious rights?

  4. Surely the most relevant consideration for the defence is that the jury is going to hate your niqab-wearing client. Should a competent defence lawyer really let their client make a political statement at the expense of any possibility of acquittal? Their client will have zip credibility. That is a mathematical certainty. Remember, Muslims don’t tend to be picked for jury duty.

    But if I were a prosecutor, ID issues aside, I would love the accused to wear it. Slam dunk.

  5. I too have looked at a piece of research on this which suggested jurors might see “shifty” facial clues as indicating guilt if the crime was minor but not if it was major – ie more nervousness would be discounted as reasonable behaviour for someone facing a serious charge.
    The point is that if there is no particular evidence that jurors gain an accurate (stress: accurate) impression from seeing the defendant, then a ban cannot matter to aiding justice, as Murphy assumed it did. Hence it would be disproportionate in ECHR terms to ban the veil, even when giving evidence.

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