Alaska Employment Law

Judge Frank Easterbrook, from the 7th Circuit, relies on empircal studies and writes about how to determine credibility:

The belief that many people form from watching television and movies—that this can be done by careful attention to a witness’s demeanor—has been tested and rejected by social scientists. Looking for mannerisms, hesitations, and perspiration is the method of the lie detector without the polygraph machine. In a large-scale test of liedetecting abilities, in which people told matched pairs of true and false stories, a television audience (which had access to the speakers’ demeanor) did no better than chance at separating truth from fiction, while newspaper readers spotted the lie 64% of the time and people listening to the radio got it right 73%. Richard Wiseman, Quirkology: How We Discover the Big Truths in Small Things 50–81 & references at 287–90 (2007). In other words, if you want to find a liar you should close your eyes and pay attention to what is said, not how it is said or what the witness looks like while saying it. See Stephen Porter & John C. Yuille, The Language of Deceit: An Investigation of the Verbal Cues to Deception in the Interrogation Context 20 L. & Human Behavior 443 (1996); Michael J. Saks, Enhancing and Restraining Accuracy in Adjudication, 51 L. & Contemp. Probs. 243, 263–64 (Aut. 1988). And even then the error rate is high.

So what gives the liar away? Wiseman’s book recounts what is known about this subject. The major clue, apart from factual gaffes and inconsistencies that amount to confessions, is the amount of detail. “When it comes to lying, the more information you give away, the greater are the chances that some of it will come back to haunt you. As a result, liars tend to say less, and to provide fewer details”. Id. at 58–59. What’s more,  “[l]iars often try to distance themselves psychologically from their falsehoods, and so they tend to include fewer references to themselves, and their feelings, in their stories.” Id. at 59. Truth-tellers have normal amounts of memory failure. But “[w]hen it comes to relatively unimportant information, [liars] seem to develop super-powered memories and often recall the smallest of details. In contrast, truthtellers know that they have forgotten certain details and are happy to admit it.” Id. at 59–60. In a nutshell: details matter, and the story’s periphery may expose a liar.  

Mitondo v. Mukasey, 2008 WL _______ (7th Cir. Apr. 24, 2008)