Deception judgements in courts and asylum procedures

1. Deception judgements in courts and asylum procedures Rebecca M. Willén, MSc University of Gothenburg Sweden NNPL Joint Nordic PhD course 2010, Reykjavik, Iceland

2. This presentation • Bond & DePaulo (2006). Accuracy of deception judgments. • Kagan (2003). Is the truth in the eye of the beholder? Objective credibility assessment in refugee status determination. • ”Assessing reliability by analyzing the verbal content: The case of Sweden”. Strömwall, 2010. Nordic Lights, Chapter 13.

3. Introduction: Credibility assessments in courts and asylum procedures • Deception detection is not fiction • Credibility assessments are common procedures in legal cases where other type of evidence often is lacking • Sexual assaults and domestic violence (Schelin, 2006) • International criminal courts (May & Wierda, 2002) • Asylum procedures (Kagan, 2003)

4. Introduction • ”Lie detecting is what our juries do best”(Fisher, in Bond & DePaulo, 2006) • No tools – only their common sense and ”gut feelings” • A list of criteria for content analysis (Kagan, 2003; May & Wierda, 2002; Schelin, 2006) • Purpose: Objective credibility assessments

5. Accuracy of deception judgments(Bond & DePaulo, 2006) • 206 studies • Over 24’000 participants (”receivers”) • Adults • No training, no tools • 6 main independent variables - All with implications for deception detection in courts and asylum procedures • Medium (video, audio, video & audio) • Sender’s motivation • Sender’s preparation • Baseline of the sender • Interaction • Expertise

6. Overall accuracy: 53.98% Highest mean: 73% Lowest mean: 31% Medium Audio was the winner Motivation Higher accuracy when the sender was highly motivated However, neither were highly motivated truthful senders believed (not in audio condition though) Preparation Prepared statements were more difficult to evaluate Baseline A baseline exposure improved accuracy Interaction Not significant in this study Expertise No difference between experts and nonexperts Main results

7. Conclusions: Accuracy of deception judgments • People are not very skilled in detecting deception • Not even when they are supposed to be... • Implications for law practitioners • Medium: Often live • Motivation: Likely, the senders are often highly motivated (i.e. putting also truthful senders at risk of not being believed) • Preparation: Likely, the statements are prepared • Baseline: No baseline exposure • The bottom line: Law practitioners will probably have a really hard time coming to a correct conclusion about the veracity of a statement

8. Introduction • ”Lie detecting is what our juries do best”(Fisher, in Bond & DePaulo, 2006) • No tools – only their common sense and ”gut feelings” • A list of criteria for content analysis (Kagan, 2003; May & Wierda, 2002; Schelin, 2006) • Purpose: Objective credibility assessments

9. Objective credibility assessment in refugee status determination(Kagan, 2003) • Refugee status determination (RSD) is a unique legal matter in several ways: • Assessments of risks in the future • Culture & language • Incomplete information • Very extreme consequences of wrongful decisions

10. Introduction: Asylum cases (Page 2 of 3) • Credibility assessments are made to determine whether the statement should be accepted as evidence or not (both in criminal & in asylum cases) • The statement alone is enough as evidence in the asylum procedure • Most of the rejections of asylum applications are made due to a ”lack of credibility” (77%, UNHCR in Cairo)

11. Despite the extraordinary importance of the credibility decisions in asylum cases: Subjective decisions Decisions influenced by cultural misunderstandings (and interpretation) Unreviewable decisions The purpose of Kagans article is to suggest new principles for credibility assesments in order to... Increase the objectivity Increase the accuracy Make the credibility findings reviewable Introduction: Asylum cases (Page 3 of 3)

12. Positive factors Detail & specificity Consistency Providing all facts early Plausibility Chronological order Fulfillment of burden of explanation Non-verbal cues Negative factors Vagueness Contradictions Delayed revelation of key facts Implausibility Non-chronological order Cannot explain discrepancies and omission Non-verbal cues Criteria for content analysis(Kagan, 2003)

13. Limitations • The list of criteria is a good start... ... But how to weigh them in the individual case?

14. Framework for an objective assessment of credibility • Presume truthfulness • Look for negative factors in the key parts of the statement • If negative factors are not found – accept credibility • If negative factors are found: • Only in parts or in the whole account? • Look for positive factors in the problematic parts • If the negative factors are minor or peripheral – accept credibility • Give the applicant a chance to explain (burden of explanation) • Is it possible to believe the problematic parts? – accept credibility

15. Fulfillment of burden of explanation • Potential reasons for accepting a flawed statement (Kagan, 2003): • Trauma • Fear of authority • Lack of gender sensitivity during the interview • Cultural or linguistic misunderstandings • Memory failures

16. Conclusions • In the present system credibility assessments are a necessary evil in asylum procedures • ”If refugee protection is to have any meaning... refugees must be distinguishable from other migrants”(Kagan, 2003) • Practitioners and researchers within law have taken some steps with the intention to increase the objectivity in these assessments, as well as the accuracy in the judgements • These steps towards objectivity mainly consists of a list of quite vaguely defined criteria

17. Some concerns • Law practitioners are applying a complex psychological technique without proper training (Diesen, 2008) • Presently, the technique lacks scientific support (Willén & Strömwall, manuscript submitted for publication)

18. Coda • Everyone has the right to life, liberty and security of person. Article 3 in the Universal Declaration of Human Rights • The implications of statement analysis are rarely more serious than in asylum procedures

19. Thank you for listening!