BY: The Exoneration Project

The Worst Lie Detectors

Here’s a novel thought: Actors within the criminal justice system should not make crucial, life-altering decisions based on how they perceive individuals should act.

But it happens all too frequently.

Consider the life-altering decision made by a police officer to interrogate a suspect. When investigating crimes, police are trained to interview to learn facts, but to interrogate when they know the answer. Given that there is overwhelming evidence that interrogation can lead to a “frighteningly high percentage” of false confessions, the distinction could not be more profound.

Police, however, are trained to make this crucial decision based simply on how the person acts. Reid & Associates—the national interrogation training leader—teaches exactly that: “The technique is loosely based on the assumption that body language reveals whether a person is lying, and that a deceptive person will show signs of anxiety,” notes Reid-certified interrogator Douglas Starr. Worse yet, Starr notes that Reid trains investigators to “cling” to this first impression at all costs.

While this is problematic on its face, former D.C. Detective, and now-interrogation reformer Jim Trainum (also of Serial fame), explains how it is worse than that: This so-called lie-detecting technique itself can be whatever the questioner wants it to be. Here is a slide Trainum uses in his presentations to show the myriad of ways police conclude a person they are interviewing is actually the guilty party. Follow the bullet points left to right:

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This slide shows how police often make this crucial decision based no more than on their own, subjective determination on how they believe a person should act.

Police interrogations, however, are not the only place within the criminal justice system we see subjective hunches influence crucial decision-making.

In fact, I was recently struck bv another example while interviewing Zoe Kam, University of Chicago law student, for a summer job with the Exoneration Project. (Zoe got the job—and she has given me permission to use her name.) Zoe was telling me about her undergraduate thesis on female hysteria. The term hysteria was so malleable and misused, Zoe told me, that it was sort-of a catch-all diagnosis or explanation that could be used simultaneously even for seemingly contradictory behaviors from women. So, if one woman was acting manic, she was hysterical; yet if a different woman was so depressed that she was almost mute, she was also hysterical.

The malleability of this idea of “hysteria” with women reflects a belief on how someone should be acting. In some respects, my friends and former colleagues Andrea Lewis and Sara Sommervold, explore this idea in their excellent article in the Albany Law Review. They discuss how cultural perceptions lead to wrongful convictions of women of crimes, often where no crime occurred at all. The article is worth a careful read.

I only have very limited experience representing women I believe to be wrongfully convicted. But the idea of how an innocent woman should have acted seems to me to have played a role in one of my cases—an unexplained death of a baby in the care of a female day care provider. In that case, the child’s death could not be explained, so the conclusion was that the female day care worker must have abused the child, even without any actual physical evidence that the baby was harmed.

Throughout the trial, an intrinsic theme was that my client must have been guilty because how she acted. The prosecution—heck, even the medical doctors—seemed to believe that if the woman was innocent, she would have recognized the child was in trauma; she should have acted with more urgency, or, perhaps more “hysteria.”

Hysterical is how one would expect a female caregiver to act if a child was in crisis, so the story went. That my client did not meet some people’s definition of hysteria—whatever it is hysteriameant to those people—likely influenced what I firmly believe to be her wrongful conviction.