Nonverbal Communication in Courtrooms: Scientific Assessments or Modern Trials by Ordeal?

Running head: NONVERBAL COMMUNICATION IN COURTROOMS
Nonverbal communication in courtrooms: Scientific assessments or modern trials
by ordeal?
Vincent Denault 1 & Norah Dunbar 2
Acknowledgments
The authors wish to thank the Fonds de Recherche du Québec - Société et Culture
(FRQSC) for a doctoral research scholarship attributed to Vincent Denault, as well as
Éric Raymond, Christian Sarailis and Adam Villeneuve for their constructive comments
on an earlier version of this manuscript.
Manuscript accepted for publication in
The Advocates’ Quarterly
The final publication is available at Thomson Reuters
http://store.thomsonreuters.ca/product-detail/the-advocates-quarterly/
Address for manuscript correspondence
Vincent Denault, Département de communication, Université de Montréal, Pavillon
Marie-Victorin, PO Box 6128 Centre-ville STN, Montréal (Québec), H3C 3J7, Canada.
vincent.denault@umontreal.ca. + 1 514 240 9638.

1
Vincent Denault is a Lawyer and Certified Fraud Examiner, member of the Bar of Quebec and the
Association of Certified Fraud Examiners, and co-director of the Center for Studies in Nonverbal
Communication Sciences of the Montreal Mental Health University Institute Research Center. He is
studying nonverbal communication, credibility assessment and deception detection as a PhD Student and
Lecturer of the Department of Communication at the University of Montreal.
2
Dr. Norah Dunbar is a Professor of Communication and Chair of the Department of Communication at
the University of California Santa Barbara. She teaches courses in nonverbal and interpersonal
communication, communication theory, and deception detection. She was the Principal Investigator of a
$5.4 Million contract from the Intelligence Advanced Research Projects Activity in 2011-2013, and the
Chair of the Nonverbal Division of the National Communication Association in 2014-2016.
NONVERBAL COMMUNICATION IN COURTROOMS

Abstract
This paper examines the effects of false beliefs and inappropriate stereotypes about
nonverbal behaviours in courtrooms. We discuss how to differentiate illegitimate claims
from scientific knowledge about nonverbal communication, give an overview of key
concepts in the study of nonverbal communication (i.e., gestures, facial displays, and eye
gaze) and the effect of culture when interpreting nonverbal behaviours, explain the ways
nonverbal behaviours can be used to detect deception, and outline an interactive approach
of putting the witnesses’ nonverbal behaviours to use in courtrooms. The implications of
a more nuanced understanding of nonverbal behaviours are also discussed.
2

Table of contents
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2. Demeanour: The legal world’s common sense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.1. Trial judges’ use of nonverbal behaviours . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.2. Unreliable training for judicial professionals . . . . . . . . . . . . . . . . . . . . . . . 8
3. Pseudoscience vs. scientific knowledge: A distinction that matters . . . . . . . . . . . . . 10
4. Nonverbal behaviours: Laying the groundwork . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.1. Gestures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.2. Facial displays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.3. Eye gaze . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5. Culture: An important factor to consider . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6. Deception detection: What science tells us . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
7. Face-to-face interactions: To understand and adapt . . . . . . . . . . . . . . . . . . . . . . . . . 27
8. Discussion: Are words a better window to the soul? . . . . . . . . . . . . . . . . . . . . . . . . 31
9. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3

1. Introduction
For some years now, nonverbal communication has received growing media
attention. Analysis by so-called behavioural experts proliferate in both the written press
and on television. Pseudoscientific notions, that is notions “that possess the superficial
appearance of science but lack its substance”3, are spread to large audiences without
considering the impact of their use. However, whether in personal or professional
settings, using pseudoscientific notions, as well as false beliefs and inaccurate stereotypes
about nonverbal communication, can result in dire consequences.
For example, the belief that gaze aversion is a reliable indicator of a lie is one of
the most universal myths about deception4, when in fact it has been shown that it is not a
reliable indicator of a lie5. The myth can prompt conversational partners to conclude
incorrectly that their counterpart is lying when in fact he or she is honest or that their
counterpart is telling the truth when in fact he or she is dishonest. Although the
implications of such an erroneous conclusion in any context can be severe, the same
conclusion made by a trial judge can be disastrous, notably with regard to the assessment
of the witnesses’ credibility considering “credibility is an issue that pervades most trials,
and at its broadest may amount to a decision on guilt or innocence”6, and can even
amount to one’s deprivation of liberty7 or be a matter of life or death8.

3
S. O. Lilienfeld and K. Landfield, “Science and pseudoscience in law enforcement: A user-friendly
primer” (2008), 35:10 Criminal Justice and Behavior 1215, p. 1216.
4
The Global Deception Research Team, “A world of lies” (2006), 37:1 Journal of Cross-Cultural
Psychology 60.
5
B. M. DePaulo, J. J. Lindsay, B. E. Malone, L. Muhlenbruck, K. Charlton and H. Cooper, “Cues to
deception” (2003), 129:1 Psychological Bulletin 74.
6
R. v. Handy, [2002] 2 SCR 908, 2002 SCC 56, p. 951.
7
M. W. Bennett, “The implicit racial bias in sentencing: The next frontier” (2017) 126 Yale Law Journal
Forum 391.
8
J. P. Wilson and N. O. Rule, “Hypothetical sentencing decisions are associated with actual capital
punishment outcomes” (2016) 7:4 Social Psychological and Personality Science 331; J. P. Wilson and N.
4

Unfortunately, many judicial professionals, including trial judges, hold incorrect
assumptions about nonverbal communication and the detection of deception9. Worse,
some have even attended conferences and seminars on nonverbal communication where
the notions presented had no more scientific basis than the notions used during the
Middle Ages’ trials by ordeal10. This paper aims to offer judicial professionals an
overview of the scientific literature on nonverbal communication which, in our opinion,
is needed to gain insight on the impact of nonverbal communication in courtrooms and to
promote the development and the implementation of evidence-based best practices.
More specifically, after addressing current demeanour issues in the legal world,
we will discuss how to differentiate illegitimate claims from scientific knowledge about
nonverbal communication. Subsequently, we will lay the groundwork of this paper by
introducing key concepts in the study of nonverbal communication (i.e., gestures, facial
displays, and eye gaze) and the effect of culture. Finally, we will explore the value of
nonverbal communication in deception detection and face-to-face interactions. A
discussion on the impact of verbal communication will complete this paper.
2. Demeanour: The legal world’s common sense
When the evidence adduced at a trial is solely testimonial, and especially when
such evidence is contradictory, the impact of the witnesses’ credibility on decision-
making can be tremendous. Out of the many elements trial judges will take into

O. Rule, “Facial trustworthiness predicts extreme criminal-sentencing outcomes” (2015) 26:8
Psychological Science 1325.
9
V. Denault, Communication non verbale et crédibilité des témoins [Nonverbal communication and
witnesses’ credibility] (Cowansville: Yvon Blais, 2015); L. A. Strömwall and P. A. Granhag “How to
detect deception? Arresting the beliefs of police officers, prosecutors and judges” (2003) 9 Psychology,
Crime & Law 19.
10
V. Denault, “Le « langage » non verbal des témoins, quand les pseudosciences s’invitent au tribunal”
[“The non-verbal “language” of witnesses, when pseudoscience are invited in the courtroom”] (in press)
ScriptUM; Denault, supra, footnote 9.
5

consideration, demeanour is one of the most significant11. While the impact of demeanour
as long been recognised12, the specific rules governing its use can differ from one
jurisdiction to another. In Canada, according to the Supreme Court, the trial judge can
take into consideration the witnesses’ overall demeanour as well as specific nonverbal
behaviours, when assessing their credibility:
It is the trial judge who not only hears the evidence but also has the great
advantage of watching the demeanour of all who testify. It is the trial judge who
can take into account the significant pauses in the responses, the changes in facial
expression, the looks of anger, confusion and concern.13
Thus, on a par with internal consistency and consistency with other evidence, as
well as with a plethora of other elements, nonverbal behaviours play a key role in
courtrooms, notably in the credibility assessment of witnesses14, the importance of which
explains the deference courts of appeal pay to trial judges:
It is the highly individualistic nature of a determination of credibility, and its
dependence on intangibles such as demeanour and the manner of testifying, that
leads to the well-established principle that appellate courts will generally defer to
the trial judge’s factual findings, particularly those pertaining to credibility.15
However, the credibility assessment of witnesses, and therefore the appraisal of
their nonverbal behaviour, is “left to the common sense of the trier of fact, in this case the
trial judge”16. Their assessment “must always be the product of the judge or jury's view

11
E. Bell, “An introduction to judicial fact-finding” (2013) 39:3 Commonwealth Law Bulletin 519.
12
B. R. Morrison, L. L. Porter and I. H. Fraser, “The role of demeanour in assessing the credibility of
witnesses” (2007) 33:1 The Advocates Quarterly 170.
13
P. (D.) v. S. (C.), [1993] 4 SCR 141, 1993 SCC 35, p. 192.
14
R. v. D.A.I., [2012] 1 SCR 149, 2012 SCC 5; White v. The King, [1947] SCR 268, 1947 SCC 1.
15
R. v. S. (R.D.), [1997] 3 SCR 484, 1997 SCC 324, p. 537.
16
R. v. François, [1994] 2 SCR 827, 1994 SCC 52, p. 839.
6

of the diverse ingredients it has perceived at trial, combined with experience, logic and an
intuitive sense of the matter”17. Thus, trial judges are, for all intents and purposes, left on
their own, using their own life experiences as long as “those experiences are relevant to
the cases, are not based on inappropriate stereotypes, and do not prevent a fair and just
determination of the cases based on the facts in evidence”18. Unfortunately, in practice,
the use of false beliefs and inappropriate stereotypes about nonverbal communication is
far from being unusual19.
2.1. Trial judges’ use of nonverbal behaviours
Trial judges possess highly sophisticated analytic abilities and a variety of other
skills required to carry out their fact-finding responsibilities. However, unless they are
familiar with the scientific research about nonverbal communication, trial judges are
likely to give dubious meanings or interpretations to various nonverbal behaviours. For
example, very recently, not only did trial judges from the Superior Court of Quebec
explicitly mentioned the witnesses’ gaze aversion20, but used it to discard testimonies21
or, combined with nervousness and hesitation, to conclude that a witness lied:
Having carefully observed the accused during his testimony and noted his great
nervousness, his fleeting glare and his numerous hesitations in cross-examination,
the undersigned is convinced that [the accused] has simply forged his version of

17
R. v. Marquard, [1993] 4 SCR 223, 1993 SCC 37, p. 248.
18
R. v. S. (R.D.), [1997] 3 SCR 484, 1997 SCC 324, p. 501.
19
Denault, supra, footnote 9.
20
For example, Droit de la famille – 16641, 2016 QCCS 1375; Collin c. Société immobilière du Massif de
Charlevoix inc., 2016 QCCS 346.
21
For example, Bolduc c. Decelles, 2016 QCCS 2624; El Sewify c. Gestion Phoenicia inc., 2016 QCCS
1956.
7

the facts according to the evidence disclosed, and that he thereby lied to the Court
in a shameless manner.22
However, nervousness and hesitation are not reliable indicators of a lie. Liars and
truth tellers can both be nervous and hesitate23. Gaze aversion is also not a reliable
indicator of a lie24. Whilst embarrassment can cause gaze aversion25, truth tellers can be
embarrassed by the truth and liars can be embarrassed by a lie. Cultural background can
also influence gaze aversion26. In other words, embarrassment is not unique to liars: the
truth and a lie can both be embarrassing. This is but one example among many27. It is
therefore not surprising that trial judges, as well as lawyers who want to detect the lies of
other litigants, attend trainings on nonverbal communication.
2.2. Unreliable trainings for judicial professionals
When it comes to nonverbal communication, a simple Google search reveals a
number of training opportunities that imply that gestures, facial displays and eye gaze are
golden keys to understand one’s hidden desires and secrets, and even uncover falsehoods.
Without having the slightest idea that what is promoted falls short of any empirical
evidence, judicial professionals not familiar with the basics of scientific research about
nonverbal communication, or science for that matter, can offer or attend unreliable
courses in good faith.

22
R. c. Martin, 2017 QCCS 193 (CanLII), p. 27 [our translation].
23
A. Vrij, Detecting Lies and Deceit (Chichester: Wiley, 2008).
24
DePaulo, supra, footnote 5.
25
D. Keltner and B. N. Buswell, “Embarrassment: Its distinct form and appeasement function” (1997)
122:3 Psychological Bulletin 250.
26
A. McCarthy, K. Lee, S. Itakura and D. W. Muir, “Cultural display rules drive eye gaze during thinking”
(2006) 37 Journal of Cross-Cultural Psychology 717.
27
M. Minzner, “Detecting lies using demeanor, bias and context” (2008) 29:6 Cardozo Law Review 2557;
J. P. Timony, “Demeanor evidence” (2000) 49:4 Catholic University Law Review 903; J. A. Blumenthal,
“A wipe of the hands, a lick of the lips: The validity of demeanor evidence in assessing witness credibility”
(1993) 72:4 Nebraska Law Review 1157; O. G. Wellborn, “Demeanor” (1990) 76:5 Cornell Law Review
1075; E. J. Imwinkelried, “Demeanor impeachment: Law and tactics” (1985) 9:2 American Journal of Trial
Advocacy 183.
8

In Quebec, for example, from 2012 to 2015, several hundred lawyers attended an
online training offered by the Bar of Quebec where lying was associated with gaze
aversion, as well as the hiding of the hands and the forward tilting of the head. In the
same training, it was stated that the “limbs of someone who is stressed are stiff, while
someone who lies tries to hide some body parts”28. The course also taught that “a person
who committed a crime and must answer a question on that subject will take 2 seconds
more to answer the question”29.
From a scientific point of view, these notions are amusing distractions at best or,
at worst, straight rubbish with the potential to totally skew the credibility assessment of
witnesses if they were to be used by trial judges in courtrooms30. These notions also run
contrary to extensive scientific research about nonverbal communication, that is
“communication effected by means other than words, assuming words are the verbal
element”31. In fact, since the 1960s, nonverbal communication has been the subject of
several thousand peer-reviewed papers published by research scientists from different
disciplines, including psychology, communication and medicine, making nonverbal
communication a highly interdisciplinary research interest32.
However, the lack of knowledge of those peer-reviewed papers could explain,
without condoning, why a law society, a regulatory authority whose goal is to protect the

28
Barreau du Québec, Le langage corporel II : Maîtriser l’art de l’interrogatoire [The body language II:
Master the art of examination] (Barreau du Québec, n.d.) at http://webpro.barreau.qc.ca/le-langage-
corporel-2.html [our translation]
29
Barreau du Québec, supra, footnote 28.
30
Denault, supra, footnote 9; S. Porter and L. ten Brinke, “Dangerous decisions: A theoretical framework
for understanding how judges assess credibility in the courtroom” (2009) 14 Legal and Criminological
Psychology 119.
31
M. L. Knapp and J. A. Hall, Nonverbal Communication in Human Interaction (Boston: Wadsworth,
2010), p. 5.
32
J. A. Harrigan, R. Rosenthal and K. R. Scherer “Introduction”, in J. A. Harrigan, R. Rosenthal and K. R.
Scherer, eds., The new handbook on methods in nonverbal behavior research (Oxford: Oxford University
Press, 2005) at 1-6.
9

public, promoted notions that lack any form of peer review. This lack of knowledge could
also explain why the “attention paid to nonverbal behavior by many decision makers has
little or no clear connection with scientifically validated and recognized knowledge”33.
The fact that people outside academia may be unaware of the difference between
pseudoscience and scientific knowledge might also explain it.
3. Pseudoscience vs. scientific knowledge: A distinction that matters
Pseudoscientific notions, as well as false beliefs and inaccurate stereotypes about
nonverbal communication, receive a great deal of attention from the media and a variety
of workplaces. However, judicial professionals sometimes lack sufficient scientific
education to distinguish pseudoscience from scientific knowledge34 because of the gap
between them and research scientists35. When scientific knowledge in an area is lacking,
the odds of being spellbound by so-called innovative techniques “that possess the
superficial appearance of science but lack its substance”36 can cause confusion. Thus,
before going any further, it is important to distinguish pseudoscience from scientific
knowledge.

33
Denault, supra, footnote 9, p. 126 [our translation].
34
A. Tadei, K. Finnilä, A. Reite, J. Antfolk and P. Santtila, “Judges’ capacity to evaluate psychological and
psychiatric expert testimony” (2016) 68:3 Nordic Psychology 204; D. L. Fraigman, “Judges as amateur
scientists” (2006) 86:5 Boston University Law Review 1207; J. A. Moreno, “Einstein on the bench:
Exposing what judges do not know about science and using child abuse cases to improve how courts
evaluate scientific evidence” (2003) 64:2 Ohio State Law Journal 351; R. E. Redding, M. Y. Floyd and G.
L. Hawk, “What judges and lawyers think about the testimony of mental health experts: A survey of the
courts and bar” (2001) 19 Behavioral Science and the Law 583; C. Haney, “Psychology and legal change:
On the limits of a factual jurisprudence” (1980) 4:3 Law and human behavior 147.
35
C. Chaplin and J. Shaw, “Confidently wrong: Police endorsement of psycho-legal misconceptions”
(2016) 31:3 Journal of Police and Criminal Psychology 208; S. M. Kassin, “Paradigm shift in the study of
human lie-detection: Bridging the gap between science and practice” (2012) 1:2 Journal of Applied
Research in Memory and Cognition 118; S. Porter and L. ten Brinke, “Truth about lies: What works in
detecting high-stakes deception?” (2010) 15:1 Legal and Criminological Psychology 57; P. J. Van Koppen,
“Misapplication of psychology in court”, in D. Carson, B. Milne, F. Pakes, K. Shalev and A. Shawyer, eds.,
Applying psychology to criminal justice (Chichester: Wiley, 2007) at 265-282; R. E. Riggio and R. S.
Feldman, Applications of nonverbal communication (London: Lawrence Erlbaum, 2005).
36
Lilienfeld, supra, footnote 3, p. 1216.
10

A central distinction between scientific knowledge on nonverbal communication
and illegitimate claims is the presence or absence of peer-reviewed papers37.
Pseudoscientific notions generally fail to describe the process through which they are
developed, thus hampering outside critics from easily highlighting the methodological
and analytical fallacies that would shatter them38. In contrast, the peer review process
aims precisely at trying to prevent the dissemination of biased information as well as
notions suffering from methodological and analytical fallacies39.
Thus, after studying carefully one or several aspects of a specific subject, the
research scientist will write a manuscript which, in most cases, will thoroughly describe
the data collection procedure, analysis method and research results. The results will then
be contextualized by relating them with other results previously published in peer-
reviewed papers40. Once the writing process is completed, the research scientist will
submit the manuscript to a scientific journal.
After a brief assessment of the manuscript, the editor of the scientific journal will
send for review to experts of the specific subject an anonymized version of the
manuscript. The research scientist will not know who the reviewers are and the reviewers
will not know the identity of the research scientist. This is known as blind review.
Following the review, three outcomes are possible:
(1) If the article is found to be flawed, the manuscript is rejected and will not be
published.

37
G. R. Baran, M F. Kiani and S. P. Samuel, “Science, Pseudoscience, and Not Science: How Do They
Differ ?”, in G. R. Baran, M. F. Kiani and S. P. Samuel, eds., Healthcare and Biomedical Technology in the
21st Century: An Introduction for Non-Science Majors (New York: Springer, 2013) at 19-57.
38
Lilienfeld, supra, footnote 3.
39
W. T. O’Donohue, S. O. Lilienfeld and K. A. Fowler, “Science is an essential safeguard against human
error”, in S. O. Lilienfeld and W. T. O’Donohue, eds., The Great Ideas of Clinical Science: 17 Principles
that Every Mental Health Professional Should Understand (New York: Routledge, 2007) at 3-28.
40
M. Bunge, “Knowledge: Genuine and Bogus” (2011) 20:5 Science and Education 411.
11

(2) If the reviewers see promise in the work, they might make suggestions and
invite the author to “revise and resubmit” the manuscript. In other words, the
scientific journal will reconsider it for further peer review if the research scientist
makes major modifications.
(3) It is also possible that the reviewers will recommend the manuscript be
accepted with relatively minor modifications (or perhaps even no modifications),
but this outcome is very rare.
Once a manuscript is published, the manuscript adds to the body of scientific knowledge
on the subject.
Because the rigidity of the peer review process can vary from one scientific
journal to another, a manuscript can be rejected in one scientific journal and accepted in
another41. However, the publication of a peer-reviewed paper usually ensures a certain
degree of scientific rigour. Ultimately, the peer review process allows other research
scientists to evaluate and approve, or criticise, the data collection procedure, analysis
method and research results, and submit the evaluation to a scientific journal. This leads
to a dialogue between research scientists through peer-reviewed papers42. Thus, scientific
knowledge on a subject has a cumulative character such that one study builds upon
another and is constantly evolving43.
Therefore, while science usually does not provide simple and definitive answers
to a research question, scientific knowledge about nonverbal communication is a key

41
J. Suls and R. Martin, “The air we breathe: A critical look at practices and alternatives in the peer-review
process” (2009) 4:1 Perspectives on Psychological Science 40.
42
V. Denault, S. Larivée, D. Plouffe and P. Plusquellec, “La synergologie, une lecture pseudoscientifique
du langage corporel” [“Synergology, a pseudoscientific reading of body language”] (2015) 43:2 Revue de
psychoéducation 425.
43
M. Bunge, “Demarcating science from pseudoscience” (1983) 3 Fundamenta Scientiae 369.
12

component to the development and the implementation of evidence-based best practices
for trial judges and lawyers because it is the best available knowledge. Relying on
pseudoscientific techniques claiming to have developed revolutionary paradigms that
avert the peer review process is, on the other hand, an act of blind faith44.
4. Nonverbal communication: Laying the groundwork
While nonverbal communication has been the subject of several thousand peer-
reviewed papers since the 1960s, the subject has actually drawn attention for thousands of
years45. For example, almost 3,000 years ago, in one of the Vedas, the most sacred texts
of Hinduism, specific instructions to recognize poisoners were detailed:
He does not answer questions, or they are evasive answers; he speaks nonsense,
rubs the great toe along the ground, and shivers; his face is discoloured; he rubs
the roots of the hair with his fingers; and he tries by every means to leave the
house.46
In contrast, while the interest in nonverbal communication dates over millennia,
the interest which can be termed as scientific could perhaps be traced back to French
neurologist Guillaume Duchenne de Boulogne and English naturalist Charles Darwin
who, in the 1860s, thoroughly documented various nonverbal behaviours.
Using electrodes to stimulate separate muscles, Duchenne de Boulogne mapped
the individual actions of the muscles of the human body and face47. In his book, The
Mechanism of Human Physiognomy, published in 1862, Duchenne de Boulogne

44
S. Larivée, Quand le paranormal manipule la science [When the paranormal manipulates the science]
(Montréal: Multimondes, 2014).
45
P. V. Troville, “History of lie detection” (1939) 29:6 Journal of Criminal Law and Criminology, 848.
46
T. A. Wise, Commentary on the Hindu system of medicine (Bengal Medical Service: Calcutta, 1845), p.
394.
47
R. A. Cuthbertson, “Duchenne de Boulogne” (1979) 49:2 ANZ Journal of Surgery 275.
13

distinguished the smile of someone who experience happiness (i.e., a “true” smile) from
the smile of someone who feigns happiness (i.e., a “false” smile). He observed the
contraction of a facial muscle, the orbicularis oculi, that raises the cheeks and causes
crow’s feet at the eyes’ outer corner:
The muscle that produces this depression on the lower eyelid does not obey the
will; it is only brought into play by a genuine feeling, by an agreeable emotion. Its
inertia in smiling unmasks a false friend. The will can only mask its action with
difficulty, if the action has been awoken by a heartfelt emotion.48
As a result, genuine smiles are often referred to as “Duchenne” smiles49. Referring
to Duchenne de Boulogne’s work, Darwin also examined facial displays of emotions in
his book, The Expression of Emotions in Man and Animals. Darwin suggested that some
facial displays of emotions were similar between one culture and another:
It follows, from the information thus acquired, that the same state of mind is
expressed throughout the world with remarkable uniformity; and this fact is in
itself interesting, as evidence of the close similarity in bodily structure and mental
disposition of all the races of mankind.50
However, as opposed to his 1859 book On the Origin of Species by Means of
Natural Selection that changed the world of science, Darwin’s work on facial displays of
emotions remained relatively unknown until Paul Ekman received a grant from the
Advanced Research Projects Agency of the Department of Defense in the 1960s to study
the cross-cultural aspect of nonverbal communication. After studying facial displays of

48
G. Duchenne de Boulogne and R. A. Cuthbertson, The mechanism of human facial expression
(Cambridge: Cambridge University Press, 1990), p. 72.
49
P. Ekman, R. J. Davidson and W. V. Friesen, “The Duchenne smile: Emotional expression and brain
physiology II” (1990) 58 Journal of Personality and Social Psychology 342.
50
C. R. Darwin, The expression of the emotions in man and animals (London: John Murray, 1872), p. 17.
14

emotions of the Fore from the South Eastern Highlands of New Guinea, an isolated
culture, Ekman reinforced Darwin’s hypothesis and highlighted the similarity from one
culture to another in facial displays of emotions, thus paving the way for a substantial
research agenda on the study of nonverbal communication51. Ekman’s work was
embraced by other researchers, who began to study a host of nonverbal behaviours,
including gestures, facial displays, and eye gaze.
3.1. Gestures
In order to describe and study gestures, research scientists developed different
coding systems that were subjected to the peer review process52. One of them developed
in the 1960s53, and still used to today, differentiates gestures into categories according to
their functions: emblems, illustrators, regulators, adaptors and affect displays.
First, emblems are gestures whose meanings are generally understood by people
of a same culture without having to say a word. For example, during an argument, a
prosecutor asks a trial judge if an explanation has to be repeated, and the trial judge does
not make a sound but makes a “no” head movement. The prosecutor knows the
explanation should not be repeated because the “no” head movement is an emblem.
Emblems can vary from one culture to another. For example, in some cultures, nodding
the head on the horizontal means “yes” and nodding the head on the vertical means
“no”54.

51
P. Ekman, Emotions revealed (New York: Henry Holt, 2003); R. J. Barrett and M. Katsikitis, “Foreign
faces: A voyage to the land of EEPICA”, in M. Katisikitis, ed., The Human Face (Melbourne: Springer
Science+Business Media, 2003) at 1-28.
52
J. A. Harrigan “Proxemics, kinesics, and gaze” in J. A. Harrigan, R. Rosenthal and K. R. Scherer, eds.,
The new handbook on methods in nonverbal behavior research (Oxford: Oxford University Press, 2005) at
137-198.
53
P. Ekman and W. V. Friesen, “The Repertoire of Nonverbal Behavior: Categories, Origins, and Coding”
(1969) 1:1 Semiotica 49.
54
J. K. Burgoon, L. K. Guerrero and K. Floyd, Nonverbal Communication (Boston: Pearson, 2010).
15

Second, illustrators are gestures that support one’s discourse, notably during face-
to-face interactions, and can emphasize a word or a sentence. Thus, during the same
argument, if the prosecutor says that a miracle is necessary for the victim to survive and
raises the hands toward the sky when saying the word “miracle”, the hands toward the
sky are an illustrator that emphasizes the word “miracle” to stress the severity of the
victim’s condition.
Third, regulators are gestures that serve to pace interactions, and mainly invite
others to start, to continue or to stop talking. Thus, again during the same argument, if the
trial judge asks the prosecutor to stop talking in order to note a detail and, after looking at
the notebook and noting the detail, looks at the prosecutor and makes a quick head nod,
the look and the quick head nod are regulators. The prosecutor understands that it is time
to resume the argumentation.
Finally, adaptors are gestures where one part of our body comes into contact with
our body (auto-adaptors), an object (object-adaptors) or someone else’s body (alter-
adaptors)55. For example, nose scratching is an auto-adaptor which, contrarily to popular
belief, has no relationship with deception56, and a quick touch of the hand of the
prosecutor on the shoulder of a crying victim is an alter-adaptor. The purpose of the quick
touch can be to reassure the witness (i.e., comforting function) but also to help him
continue the testimony and to achieve the sympathy of the judge (i.e., control function)57.
4.2. Facial displays

55
F. Poyatos, Nonverbal communication across disciplines (Philadelphia: John Benjamins, 2002).
56
Vrij, supra, footnote 23.
57
Burgoon, supra, footnote 54: In other circumstances, a touch can be appreciative and congratulatory,
instrumental, socially polite, affectionate, sexual or playful, or have a hybrid function, that is a combination
of the previous functions.
16

Although emblems, illustrators, regulators and adaptors are for the most part hand
gestures, affect displays primarily refers to facial displays of emotions. Although they
have been58 and still are the object of vigorous debate59, many research scientists believe
that a number of facial displays of emotions are universal, that is similarly expressed and
recognized across cultures60. Moreover, while other factors can have a significant impact
on the inference of someone’s emotion, notably the context of a facial display and the
body posture61, the face is the main channel for such inference62.
According to the Neuro-Cultural Perspective63, facial displays can be readouts of
underlying emotional states. In other words, distinctive face patterns resulting from
natural selection are linked to the so-called basic emotions, including happiness, sadness,
fear, disgust, anger, surprise and contempt64. Therefore, when people across cultures
experience one of those emotions, some features of facial displays of emotions are

58
J. A. Russell, “Is there universal recognition of emotion from facial expression? A review of the cross-
cultural studies” (1994) 115:1 Psychological Bulletin 102; J. A. Russell, “Facial expressions of emotion:
What lies beyond minimal universality?” (1995) 118:3 Psychological Bulletin 379.
59
D. Matsumoto and H. Hwang, “Methodological issues regarding cross-cultural studies of judgments of
facial expressions” (2017). Emotion Review. Advance publication online.
https://doi.org/10.1177/1754073916679008; C. Crivelli, S. Jarillo, J. A. Russell and J. M. Fernandez-Dols,
“Reading emotions from faces in two indigenous societies” (2016) 145:7 Journal of Experimental
Psychology: General 830; N. L. Nelson and J. A. Russell, “ Universality revisited” (2013) 5:1 Emotion
Review 8; R. E. Jack, O. G. Garrod, H. Yu, R. Caldara, and P. G. Schyns, “Facial expressions of emotion
are not culturally universal” (2012) 109 Proceedings of the National Academy of Sciences 7241.
60
P. Ekman, “What scientists who study emotion agree about” (2016) 11:1 Perspective on Psychological
Science 31; H. C. Hwang and D. Matsumoto, “ Facial expressions” in D. Matsumoto, H. C. Hwang and M.
G. Frank, eds., APA Handbook of nonverbal communication (Washington: American Psychological
Association, 2016) at 257-287.
61
M. H. Kayyal, S. C. Widen and J. A. Russell, “Context is more powerful than we think: Contextual cues
override facial cues even on valence” (2015) 15:3 Emotion 287; C. Fantoni and W. Gerbino, “Body actions
change the appearance of facial expressions” (2014) 9:9 PLoS One e108211; H. Aviezer, R. Hassin, J.
Ryan, C. Grady, J. Susskind, A. Anderson, M. Moscovitch and S. Bentin, “Angry, disgusted, or afraid?
Studies on the malleability of emotion perception” (2008) 19:7 Psychological Science 724; J. M. Carroll
and J. A. Russell, “Do facial expressions signal specific emotions? Judging emotion from the face in
context” (1996) 70:2 Journal of Personality and Social Psychology 205.
62
Knapp, supra, footnote 31.
63
P. Ekman, “Universals and cultural differences in facial expressions of emotion”, in J. Cole, eds.,
Nebraska Symposium on Motivation (Lincoln: University of Nebraska Press, 1971) at 207-283.
64
P. Ekman, W. V. Friesen and J. Hager, Facial Action Coding System (Salt Lake City: Research Nexus,
2002).
17

similarly expressed and recognized, whereas other features are culturally driven by norms
known as display rules65.
However, one’s facial displays can express not only underlying emotional states,
but also communicate social motives, which allows others to adapt their behaviours
accordingly66. According to the Behavioral Ecology Perspective, distinctive face patterns
convey intentions toward others in specific contexts, that are “not only on the structural
features of the situation, but on the succession of interactants' displays and their
responses to them”67. In other words, facial displays emerge from social interactions.
They are a social tool similar to language and their meaning is definite to the specific
context of their occurrence and understandable only in that context.
For example, whereas the Neuro-Cultural Perspective considers that a “true”
smile expresses happiness and a “false” smile feigns happiness, the Behavioral Ecology
Perspective considers that the “true” smile can communicate readiness to play or affiliate
and the “false” smile readiness to appease. Another example is the angry face where it
expresses anger from a Neuro-Cultural Perspective and can communicate readiness to
attack from a Behavioral Ecology Perspective68.
However, while facial displays can express underlying emotional states and
communicate social motives69, the face can also perform simultaneously a wide range of

65
S. Hareli and U. Hess, “Facial expressions and emotion”, in V. Zeigler-Hill and T. K. Shackelford, eds.,
Encyclopedia of Personality and Individual Differences (Berlin: Springer International Publishing, 2017) at
1-7; D. McDuff, J. M. Girard and R. el Kaliouby, “Large-scale observational evidence of cross-cultural
differences in facial behavior” (2016) 41 Journal of Nonverbal Behavior 1.
66
B. Parkinson, “Do facial movements express emotions or communicate motives?” (2005) 9:4 Personality
and Social Psychology Review 278.
67
A. J. Fridlund, Human facial expression: An evolutionary view (New York: Academic, 1994), p. 130.
68
Fridlund, supra, footnote 67.
69
Hareli, supra, footnote 65.
18

other communicative functions central face-to-face interactions70. These include adding
content71, establishing the significance of verbal communication72, helping understand
others73, and providing feedback to coordinate and manage face-to-face interactions so
that conversational partners achieve their own goals74. Therefore, when it comes to
understand and adapt to witnesses and their testimony, sensitivity to facial displays can
be a tremendous asset.
4.3. Eye gaze
One of the nonverbal behaviours that received the most interest throughout
history75, eye gaze plays a key role in face-to-face interactions, notably with its
regulating, monitoring, and expressing functions76.
First, eye gaze can regulate the flow of conversations by indicating the opening or
the closing of a communication channel and by serving as a turn-taking signal. For
example, if a trial judge asks the prosecutor to stop talking in order to note a detail, the
trial judge can signal whether the communication channel is open or closed by looking
down at the notebook, thus indicating that the communication channel is closed and later

70
Parkinson, supra, footnote 66.
71
For example, G. A. Bonanno, D. Keltner, J. G. Noll, F. W. Putnam, P. K. Trickett, J. LeJeune and C.
Anderson, “When the face reveals what words do not: Facial expressions of emotion, smiling, and the
willingness to disclose childhood sexual abuse” (2002) 83:1 Journal of Personality and Social Psychology
94; N. Chovil, “Discourse-oriented facial displays in conversation” (1991) 25 Research on Language and
Social Interaction 163.
72
For example, D. S. Krull, C. R. Seger and D. H. Silvera, “Smile when you say that: Effects of willingness
on dispositional inferences” (2008) 44:3 Journal of Experimental Social Psychology 735.
73
For example, J. Künecke, O. Wilhem, W. Sommer, “Emotion recognition in nonverbal face-to-face
communication” (2017) Advance publication online. https://doi.org/10.1007/s10919-017-0255-2; M. Stel,
“The role of mimicry in understanding the emotions of others”, in U. Hess and A. Fischer, eds., Emotional
mimicry in social context (Cambridge: Cambridge University Press, 2016) at 27-43.
74
For example, D. Keltner, A. M. Kring, “Emotion, social function, and psychopathology” (1998) 2:3
Review of General Psychology 320; J. B. Bavelas and N. Chovil, “Faces in dialogue”, in J. A. Russell & J.
M. Fernandez-Dols, eds., The psychology of facial expression (Cambridge: Cambridge University Press,
1997) at 334-338.
75
S. S. Tomkins, Affect Imagery Consciousness (New York: Springer, 2008)
76
A. Kendon, “Some functions of gaze direction in social interaction” (1967) 26 Acta Psychologica 100;
19

looking up at the prosecutor to indicate that the communication channel is open again.
Along with other nonverbal behaviours, eye gaze can also signal that the trial judge or the
prosecutor wants to add something to what is said by the other, thus signaling that the
trial judge or the prosecutor wants to assume the speaking role with cues such as
inhalation combined with sustained eye gaze77.
Second, eye gaze can serve a monitoring function, scanning for nonverbal
behaviours of conversational partners in order to get feedback and to plan responsive
statements. Thus, during the same argument, the prosecutor can look at the trial judge in
order to ascertain whether or not the main issues are understood and, if the trial judge
were to ask a follow up question to the prosecutor, the trial judge could look at the
prosecutor in order to plan the question.
Finally, as the context of a facial display and the body posture78, eye gaze can
have a significant impact on the inference of someone’s emotion79. Eye gaze can also
play a role in the inference of other socially relevant information such as the expression
of liking and attraction80, dominance and power81, and intentions82. Obviously, a variety

77
78
Carroll, supra, footnote 61; Aviezer, supra, footnote 61; Fantoni, supra, footnote 61; Kayyal, supra,
footnote 61.
79
R. B. Adams and R. E. Kleck, “Effects of direct and averted gaze on the perception of facially
communicated emotion” (2005) 5 Emotion 3; R. B. Adams and R. E. Kleck, “Perceived gaze direction and
the processing of facial displays of emotion” (2003) 14 Psycholological Science 644.
80
M. F. Mason, E. P. Tatkow and C. N. Macrae, “The look of love: Gaze shifts and person perception”
(2005) 16 Psychological Science 236; C. L. Kleinke, “Gaze and eye contact: A research review” (1986) 10
Psychological Bulletin 78.
81
J. A. Hall, E. J. Coats and L. S. LeBeau, “Nonverbal behavior and the vertical dimension of social
relations: A meta-analysis” (2005) 131:6 Psychological Bulletin 898; N. J. Emery, “The eyes have it: The
neuroethology, function and evolution of social gaze” (2000) 24:6 Neuroscience and Biobehavioral
Reviews 581.
82
D. I. Perrett and N. J. Emery, “Understanding the intentions of others from visual signals:
Neurophysiological evidence” (1994) 13 Cahiers de Psychologie Cognitive/Current Psychology of
Cognition 683; S. Baron-Cohen, Mindblindness: An essay on autism and theory of mind (Cambridge: MIT
Press, 1995); W. Phillips, S. Baron-Cohen and M. Rutter, “The role of eye contact in goal detection:
Evidence from infants and children with autism or mental handicap” (1992) 4 Development and
Psychopathology 375.
20

of factors can influence gazing patterns of such functions, notably the topic of discussion,
the physical and psychological characteristics of conversational partners, the distance
between them as well as their cultural background83.
4. Culture: An important factor to consider
Although research scientists agree that some basic forms of communication are
universal, there are a great number of displays that are culturally construed. Geert
Hofstede84 began categorizing different cultural norms across cultures and proposed four
dimensions differentiating one culture from another: (1) individualism-collectivism,
which refers to whether a culture prioritizes group or individual goals, (2) power
distance, which refers to whether the culture embraces egalitarianism or hierarchy, (3)
uncertainty avoidance, which refers to a culture’s anxiety about ambiguity, and (4)
masculinity-femininity, which refers to whether the culture embraces traditional
masculine or feminine values and the degree to which these values are fixed or
permeable. Others have further refined these ideas by examining not only how a person’s
nationality and personal attributes can define their cultural identity85 but also their
influence on nonverbal behaviours86.
Thus, the cultural background of the conversational partners is an important factor
that can influence nonverbal behaviours such as gaze direction87. For example, while

83
84
G. Hofstede, Culture's Consequences: International Differences in Work-Related Values (Beverly Hills:
Sage, 1980).
85
For example, H. R. Markus and S. Kitayama, “Culture and the self: Implications for cognition, emotion,
and motivation” (1991) 98:2 Psychological Review 224; H. C. Triandis, Individualism and collectivism
(Boulder: Westview Press, 1995).
86
D. Matsumoto, “Culture and nonverbal behavior”, in V. Manusov and M. Patterson, eds., Handbook of
nonverbal communication (Thousand Oaks:Sage, 2006) at 219-235.
87
McCarthy, supra, footnote 26.
21

gaze aversion is stereotypically associated with deceptiveness across cultures88, several
studies show how cultural norms account for differences in gaze aversion that are
unrelated to truthfulness89. In some cultures, looking at someone in the eyes is a sign of
arrogance whilst gaze aversion is a sign of respect90. Studies comparing specific Western
and non-Western cultures have shown that Jordanians, Surnamese and Colombian
research participants displayed more gaze aversion than did the comparable groups of
Americans, Dutch and Australian participants91. Moreover, rather than avert eye gaze,
liars might use more deliberate eye contact with their counterpart, either to pay attention
to the other’s reaction or as a strategic way to appear credible. They may also establish a
countermeasure to the popular belief that gaze aversion is a reliable indicator of a lie92.
Eye gaze is simply not a reliable cue to detect deceivers. That is only a well-established
myth, and adding cultural variability into the mix makes it even more difficult to interpret
it as having any link with deception.
Similarly, differences in gestures, affect displays, and other aspects of nonverbal
communication can be the result of the cultural background of conversational partners93.
For example, gestures often aid not only in assisting communication but also in helping
produce speech. As such, bilingual speakers often use illustrators at a higher rate than

88
The Global Deception Research Team, supra, footnote 4.
89
P. A. Castillo, “The detection of deception in cross-cultural contexts”, in M. K. Mandal and A. Awasthi,
eds., Understanding Facial Expressions in Communication (New Delhi: Springer India, 2015) at 243-263.
90
O. M. Watson, Proxemic Behaviour: A Cross-Cultural Study (The Hague: Mouton, 1970).
91
Castillo, supra, footnote 89.
92
S. Mann, S. Ewens, D. Shaw, A.Vrij, S. Leal and J. Hillman, “Lying Eyes: Why Liars Seek Deliberate
Eye Contact” (2013) 20:3 Psychiatry, Psychology and Law 452; A. Vrij, K. Edward and R. Bull,
“Stereotypical verbal and nonverbal responses while deceiving others” (2001) 27 Personality and Social
Psychology Bulletin 899.
93
For example, W. B. Gudykunst, S. Ting-Toomey and E. Chua, Culture and interpersonal communication
(Thousand Oaks: Sage, 1988); Matsumoto, supra, footnote 86.
22

monolingual speakers and may use emblems that are culture-specific for their primary
language even when speaking their second language94.
Several researchers have also identified gestures that are specific to a cultural
group with an in-group bias in recognizing these gestures as well as facial displays of
emotions that may be particular to one’s cultural group95. For example, as opposed to
people from individualist cultures, people from collectivist cultures tend to show less
negative emotions96, presumably because collectivist cultures prioritize goals of the
group and facial displays of negative emotions could adversely affect social cohesion97.
Understanding the nonverbal behaviours of witnesses therefore depends on some
understanding of their cultural group as well.
5. Deception detection: What science tells us
While key concepts in the study of nonverbal communication and the effect of
culture provide some guidance in understanding the possible adverse effects of
pseudoscientific notions, deception detection is probably the issue most people think
about when thinking about nonverbal communication. False beliefs and inappropriate
stereotypes about nonverbal communication, especially in courtrooms, justify addressing
this very specific issue.
Deception is the purposeful attempt to create in another a belief which the
communicator believes is false98. Unlike what so-called behavioural experts imply, there
is no nonverbal behaviour that is always present when people are dishonest and absent

94
E. Nicoladis, “The effect of bilingualism on the use of manual gestures” (2007) 28:3 Applied
Psycholinguistics 441.
95
Matsumoto, supra, footnote 86.
96
D. McDuff, J. M. Girard and R. el Kaliouby, “Large-scale observational evidence of cross-cultural
differences in facial behavior” (2016) 41 Journal of Nonverbal Behavior 1.
97
H. R. Markus and S. Kitayama, “Culture and the self: Implications for cognition, emotion, and
motivation” (1991) 98:2 Psychological Review 224.
98
23

when people are honest. In other words, there is no nonverbal cue akin to Pinocchio’s
nose or a combination of nonverbal cues that show up every time someone engages in
deception.
However, even if there is no Pinocchio’s nose to detect deception, deception
detection research offers insights on how to foster the search for the truth. In fact, several
meta-analyses conducted in the past 10-15 years summarize the current state of the art in
the study of cues to deception and give insight into which cues are more or less, or not at
all diagnostic99. But, the most important question to ask is: what makes a nonverbal cue
diagnostic?
The meta-analysis by Bella DePaulo and colleagues100 examined over 100
nonverbal cues that had previously been examined by other researchers in over 200
studies and found that only 21 cues were related to deception although most of them were
only loosely tied to deception. Therefore, rather than examining individual cues, a better
approach would be to look for clusters or patterns of cues without being restricted to
specific nonverbal cues101. These cues supported by empirical evidence can be grouped
into three categories: general patterns of greater uncertainty, tension, and cognitive load.

99
V. Hauch, I. Blandón-Gitlin, J. Masip and S. L. Sporer, “Are computers effective lie detectors? A meta-
analysis of linguistic cues to deception” (2015) 19:4 Personality and Social Psychology Review 307; M.
Hartwig and C. F. Bond Jr., “Why do lie-catchers fail? A lens model meta-analysis of human lie
judgments” (2011) 137 Psychological Bulletin 643; C. F. Bond Jr. and B. M. DePaulo, “Individual
differences in judging deception: Accuracy and bias” (2008) 134 Psychological Bulletin 477; S. L. Sporer
and B. Schwandt, “Moderators of nonverbal indicators of deception: A meta-analytic synthesis” (2007) 13
Psychology, Public Policy, and Law 1;C. F. Bond Jr. and B. M. DePaulo, “Accuracy of deception
judgments” (2006) 10:3 Personality and social psychology Review 214; S. L. Sporer and B. Schwandt,
“Paraverbal indicators of deception: A meta-analytic synthesis” (2006) 20:4 Applied Cognitive Psychology
421; DePaulo, supra, footnote 5.
100
DePaulo, supra, footnote 5.
101
A. Vrij, P. A. Granhag and S. Porter, “Pitfalls and opportunities in nonverbal and verbal lie detection”
(2010) 11:3 Psychological Science in the Public Interest 89; Vrij, supra, footnote 23; DePaulo, supra,
footnote 5.
24

To begin with, deceivers tend to be less certain of their statements because they are
either fabricating something or altering the reality they know to be the truth. Lina Zhou,
Judee Burgoon, Jay Nunamaker and Doug Twitchell102 investigated some specific
linguistic cues that might be associated with greater uncertainty, which were shown to be
related to deceptiveness. While uncertainty might be displayed differently by different
people, they argued that the use of contradictory or impenetrable sentence structures
(syntactic ambiguity) or evasive and ambiguous language that introduces uncertainty
(semantic ambiguity) may cause the deceivers’ message to be less clear. Uncertainty may
involve passive voice, objectification, more general as opposed to specific language
choices, and fewer self-references. Longer pauses, shorter answers, more tentativeness
and less nonverbal involvement are other signals of uncertainty. Of course, in
courtrooms, it is safe to say that witnesses who planned to lie will not be telling their
story for the first time. Therefore, the effects of practice and repetition, along with
witness preparation by lawyers unaware of the deception103, might help their testimony
sound less tentative and more certain.
A second category of cues relates to tension which Aldert Vrij104 termed “the
control approach” to detecting deception. Under this perspective, deceivers are motivated
to control their behaviour to avoid showing cues they think signal deception and appear
as credible as possible. They especially try to control “leakage” of cues that are

102
L. Zhou, J. K. Burgoon, J. F. Nunamaker and D. Twitchell, “Automating linguistics-based cues for
detecting deception in text-based asynchronous computer-mediated communications” (2004) 13:1 Group
decision and negotiation 81.
103
D. Eades, “Telling and retelling your story in court: Questions, assumptions and intercultural
implications” (2008) 20:2 Current Issues in Criminal Justice 209; W. H. Fortune, R. H. Underwood and E.
J. Imwinkelried, Modern litigation and professional responsibility handbook (New York: Aspen
Publishers, 1996).
104
A. Vrij, “Behavioral correlates of deception in a simulated police interview” (1995) 129:1 Journal of
Psychology 15.
25

stereotypically associated with deception. Thus, if deceivers assume that gaze aversion
and fidgeting will give away their deception, they will try especially hard to control those
nonverbal behaviours, which will leave them looking tense and stiff compared to truth-
tellers. While different speakers who engage in deception may reveal tension differently,
tension usually results in fewer illustrators, more vocal and facial tension, more lip
pressing, greater pupil dilation, and more rigidity in their body posture relative to when
they are telling the truth.
Finally, the third category of cues signal higher cognitive load. Cognitive load
refers to the total amount of mental effort imposed on working memory105. Working
memory is extremely limited and when speakers try to maintain a consistent story, to
monitor their conversational partner for feedback, and to control their behavioural cues,
they experience higher cognitive load. In fact, studies using functional magnetic
resonance imaging (fMRI) to examine cognitive activation indicates that spontaneous lies
are visibly more taxing in scan results than memorized speeches or telling the truth106.
Vrij and colleagues107 offer many reasons why lies can be more cognitively taxing than
telling the truth and suggest that increasing the cognitive load of the task, notably by
asking unanticipated questions, to recount events in reverse chronological order, and to
maintain constant eye contact, can help differentiate liars and truth-tellers further. As
with other cues to deception, cognitive load may result in different nonverbal behaviours

105
G. Cooper, Research into cognitive load theory and instructional design at UNSW (G. Cooper,1998).
Retrieved from http://www.agentofsimplicity.com/wp-content/uploads/2015/12/CooperCogLoad.pdf
106
For example, G. Ganis, S. M. Kosslyn, S. Stose, W. L. Thompson and D. A. Yurgelun-Todd, “Neural
correlates of different types of deception: An fMRI investigation” (2003) 13:8 Cerebral cortex 830.
107
A. Vrij, P. A. Granhag, S. Mann and S. Leal, “Outsmarting the liars: Toward a cognitive lie detection
approach” (2011) 20:1 Current Directions in Psychological Science 28.
26

in different deceivers but generally, shorter answers, longer pauses, more repetitive word
choice and fewer illustrators should be indicative of greater cognitive load.
While these cues to deception are supported by empirical evidence, trial judges
should not automatically conclude a witness is dishonest due to their presence, or to
truthfulness due to their absence. In other words, general patterns of greater uncertainty,
tension, and cognitive load, are scientifically related to deception but they are displayed
differently by different people and are probabilistic predictors that are not 100% accurate.
Thus, since trial judges cannot stop trials to conduct independent investigations to
ascertain details about the witnesses’ human behaviour and cross-check ambiguous facts
and other details, these cues to deception should not be used to draw any conclusions
about the witnesses’ honesty or dishonesty. In Canada, considering that the Supreme
Court108 accepts that a trial judge “may intervene in the adversarial debate, but also
believe that it is sometimes essential for him to do so for justice in fact to be done”109, “it
is rather as a starting point for further examination during interrogation that the behaviour
of the witness should be taken into account by the trial judge”110.
7. Face-to-face interactions: To understand and adapt
Since there is no nonverbal cue akin to Pinocchio’s nose and individual nonverbal
cues to deception are generally faint and unreliable111, trial judges and lawyers could be
tempted to conclude that that nonverbal communication has no value in courtrooms.
However, such a conclusion should be regarded as naïve and misinformed. While

108
Brouillard Also Known As Chatel v. The Queen, [1985] 1 SCR 39, 1985 SCC 56 (SCC), p. 44.
109
Ibid, p. 48: According to the Supreme Court of Canada, “although the judge may and must intervene for
justice to be done, he must nonetheless do so in such a way that justice is seen to be done. It is all a
question of manner”.
110
L.L. c. R., 2016 QCCA 1367, p. 17 [our translation].
111
Vrij, supra, footnote 23; DePaulo, supra, footnote 5.
27

probably the issue most people think about when thinking about nonverbal
communication, the use of nonverbal behaviours to detect deception is only a very
specific function among a number of other equally or even more important functions that
are essential in face-to-face interactions.
Moreover, in courtrooms, while some witnesses might tell outright lies112, the
main purpose of testimonies is not to distinguish the honest witnesses from the
dishonest113. Considering one of trial judges’ primary functions is the determination of
facts114, it would be unfortunate at best or, at worst, extremely misguided to assume that
witnesses have to be seen either as liars or truth-tellers:
Stories may diverge, then, not because one is true and another false, but rather
because they are both self-believed descriptions coming from different points of
view informed by different background assumptions about how to make sense of
events.115
In order to determine the facts on which legal questions have to be answered, to
understand precisely and appropriately adapt to witnesses and their testimony, trial judges
have to pay careful attention not only to what is said, but also how it is said. For example,
as aforementioned, facial displays can not only express underlying emotional states and
communicate social motives, but the face can also perform spontaneously and
simultaneously a wide range of other communicative functions central to face-to-face
interactions. Considering that, in courtrooms, witnesses, lawyers and the trial judge are

112
C. Farmer and J. Hancock, “Perjury”, in T. Levine, ed., Encyclopedia of Deception (Los Angeles: Sage,
2014) at 753-756.
113
J. A. Tanford, The trial process: Law, tactics and ethics (New York: Matthew Bender & Co., 2009); D.
Andrewartha, “Lie detection in litigation: Science or prejudice?” (2008) 15:1 Psychiatry, Psychology and
Law 88.
114
E. Bell, “An introduction to judicial fact-finding” (2013) 39:3 Commonwealth Law Bulletin 519.
115
K. L. Schepple, “Telling Stories” (1989) 87:8 Michigan Law Review 2073, p. 2082.
28

constantly interacting with one another116, it goes without saying that the facial displays,
as well as other nonverbal behaviours such as gestures and eye gaze, play inextricably
linked roles which goes far beyond the detection of deception117.
In other words, while nonverbal behaviours can each be studied and described in
isolation from one another, their roles in daily interactions, whether in personal or
professional settings, is far more complex. Nonverbal communication involves a
continuous adjustment of competing and complementary flows of nonverbal behaviours
that can occur simultaneously or in sequence which allow others to adapt their behaviours
on a moment-by-moment basis118. Furthermore, nonverbal communication is not a one-
way message transmission:
… interactants simultaneously act with, and form impressions of, their partners.
Thus, individuals are encoding information, feelings, intentions, scripts, or other
reactions into behavioral expression while, at the same time, decoding the
behavior of the partner and experiencing feedback from their own behavior.119
Thus, when it comes to understanding nonverbal communication, mechanisms
outside conscious awareness allow conversational partners to understand and adapt to one
another, notably in facial mimicry120. Mimicry is a natural, sometimes unconscious,
tendency to mimic the verbal and nonverbal behaviours of others. While it is seen as
polite and empathic for people to demonstrate that they share others’ emotional reactions,

116
J. M. Atkinson and P. Drew, Order in court: The organization of verbal interaction in judicial settings
(London: Macmillan Press, 1979).
117
Burgoon, supra, footnote 54.
118
Parkinson, supra, footnote 66; Harrigan, supra, footnote 52.
119
M. L. Patterson, “A parallel process model of nonverbal communication” (1995) 19:1 Journal of
Nonverbal Communication 3, p. 6.
120
Stel, supra, footnote 73.
29

mimicry is often done because of basic drives to connect with fellow humans121.
However, if control over such mechanisms is limited, other more conscious mechanisms
can be improved by understanding how, in context, nonverbal behaviours such as
gestures, facial displays, and eye gaze, should be appraised.
Although the opposite would make it much easier for conversational partners,
scientific research about nonverbal communication has clearly shown that nearly all
nonverbal behaviours do not have the same meaning whenever they are displayed122.
Even “when a single behavior seems especially salient, its meaning and impact are
constrained by the overall behavioral context”123. Moreover, not only biological and
cultural factors as well as gender differences and personality traits, but the social
environment and cognitive-affective mediators, that is dispositions, goals, affects,
interpersonal expectancies and the cognitive load, can all influence one’s nonverbal
behaviours and the assessment of others’ nonverbal behaviours. For example, with
regards to cognitive load, if a trial judge becomes suspicious of a witness’ explanation of
an event, the trial judge will likely be more attentive to inconsistencies between the
verbal and nonverbal communication of the witness, and analyze them differently than in
the absence of suspicion, thereby mobilizing extra mental effort to assess the witness’
nonverbal behaviours124.
However, even if scientific research has clearly shown that understanding
nonverbal communication is not about the attribution of unequivocal meanings or
interpretations to nonverbal behaviours, and therefore that nonverbal communication

121
J. K. Burgoon, L. A. Stern and L. Dillman, Interpersonal Adaptation: Dyadic Interaction Patterns.
(Cambridge: Cambridge University Press, 1995).
122
Harrigan, supra, footnote 52.
123
Patterson, supra, footnote 119.
124
Patterson, supra, footnote 119.
30

cannot be systematically translated into verbal communication125, this does not prevent
so-called behavioural experts from developing and commercialising pseudoscientific
techniques claiming otherwise. Nevertheless, however compelling they are, such
techniques could prove detrimental not only to the more conscious mechanism that
allows conversational partners to understand and adapt to one another, but also to outside
conscious awareness mechanisms126. In other words, a large number of nonverbal
behaviours are spontaneously and simultaneously observed and interpreted, but such
observation and interpretation can be totally skewed by pseudoscientific notions, as well
as false beliefs and inaccurate stereotypes about nonverbal communication. Hence the
importance to be familiar with scientific research about nonverbal communication.
8. Discussion: Are words a better window to the soul?
With several thousand peer-reviewed papers since the 1960s, nonverbal
communication proves to be a subject where a lot of research questions have been
investigated. Unfortunately, while many of research questions have yet to be addressed,
people outside of the academia who are unaware of the basics of scientific research about
nonverbal communication can underestimate just how gestures, facial displays, and eye
gaze are fundamental to successful face-to-face interactions whether in personal or
professional settings.
In courtrooms, while we addressed to a greater extent issues related to testimonies
from the standpoint of trial judges, other standpoints could be equally relevant. Also, we
explored the value of nonverbal communication in detecting deception and face-to-face
interactions, but other issues such as how specific nonverbal behaviours and physical

125
Burgoon, supra, footnote 54.
126
Porter, supra, footnote 30; Porter, supra, footnote 35.
31

characteristics can affect the credibility of witnesses have also been the subject of
numerous peer-reviewed papers127. Moreover, the impact of nonverbal behaviours is not
limited just to witnesses. The trial judges’ and lawyers’ unspoken communication is just
as important128 and could alone be the subject of other papers. In any event, nonverbal
behaviours play a key role in courtrooms. It is not possibile to attribute unequivocal
meanings or interpretations to gestures, facial displays, and eye gaze, or to detect
deception as easily as what is presented on American television shows such as Lie To
Me129 would suggest. Nevertheless, trial judges and lawyers should not underestimate the
value of nonverbal communication.
However, when there is no evidence that proves or disproves the witnesses’
testimony, what is called “he said-she said” trials130, the absence of nonverbal cue akin to

127
For example, A. Baker, S. Porter, L. Ten Brinke and C. Mundy, “Seeing is believing: Observer
perceptions of trait trustworthiness predict perceptions of honesty in high-stakes emotional appeals” (2016)
22:9 Psychology, Crime & Law 817; J. L. Eberhardt, P. G. Davies, V. J. Purdie-Vaughns and S. L.
Johnson, “Looking deathworthy perceived stereotypicality of black defendants predicts capital-sentencing
outcomes” (2006) 17:5 Psychological Science 383; R. Dumas and B. Testé, “The influence of criminal
facial stereotypes on juridic judgments” (2006) 65:4 Swiss Journal of Psychology 237; L. A. Zebrowitz and
S. M. McDonald, “The impact of litigants’ babyfaceness and attractiveness on adjudications in small claims
courts” (1991) 15:6 Law and Human Behavior 603; B. Pryor and R. W. Buchanan, “The effects of
defendant’s demeanor on juror perceptions of credibility and guilt” (1984) 34:4 Journal of Communication
92.
128
For example, M. Leake, The effect of attorneys’ nonverbal behavior on jurors’ perceptions of credibility
(Doctoral dissertation, The Chicago School of Professional Psychology, 2016). Retrieved from
https://search.proquest.com/docview/1731282669?accountid=12543; K. Mack and S. R. Anleu,
“Performing impartiality: Judicial demeanor and legitimacy” (2010) 35:1 Law and Social Inquiry 137; M.
Adya and P. Blanck, “Judge’s nonverbal behavior”, in B. L. Cutler (ed.), Encyclopedia of psychology and
law (Thousand Oaks: Sage Publications, 2008) at 388-390; A. Burnett and D. M. Badzinski, “Judge
nonverbal communication on trial: Do mock jurors notice” (2005) 55:2 Journal of Communication 209; S.
L. Brodsky, N. E. Hooper, D. G. Tipper and S. B. Yates, “Attorney invasion of witness space” (1999) 23
Law and Psychology Review 49; P. Blanck, “Calibrating the scales of justice: Studying judges' behavior in
bench trials” (1993) 68:1 Indiana Law Journal 1119; J. K. Barge, D. W. Schlueter and A. Pritchard, “The
effects of nonverbal communication and gender on impression formation in opening statements” (1989) 54
Southern Communication Journal 330; P. Blanck, “The appearance of justice: Judges' verbal and nonverbal
behavior in criminal jury trials source” (1985) 38:1 Stanford Law Review 89; E. A. LeVan, “Nonverbal
communication in the courtroom: Attorney beware” (1984) 8 Law and psychology review 83;
129
T. R. Levine, K. B. Serota and H. C. Shulman, “The impact of Lie to Me on viewers’ actual ability to
detect deception” (2010) 37:6 Communication Research 847.
130
S. Porter, M. A. Campbell, A. R. Birt and M. T. Woodworth, “He said, she said”: A psychological
perspective on historical memory evidence in the courtroom” (2003) 44 Canadian Psychology 190.
32

Pinocchio’s nose could lead trial judges and lawyers to assume that it would be
appropriate to only pay attention to what is said at the expense of how it is said, as if
words were a better window to the soul. Unfortunately, there is also no verbal cue akin to
Pinocchio’s nose131. Moreover, if nonverbal behaviours may be subject to manipulation
and used to deceive, words can do so too, and trials in adversarial systems are
environments conducive to verbal deception. After all, the “advocate's prime loyalty is to
his client, not to truth as such”132.
While outright lies open wide the door for charges of perjury133, witnesses, with
the help of their lawyers, can frame an image of the truth that reinforce their position and
undermine the others’ position134. Moreover, lawyers might engage in more or less
sophisticated deception strategies:
Our courts wait passively for what the parties will present, almost never knowing
– often not suspecting – what the parties have chosen not to present. The ethical
standards governing counsel command loyalty and zeal for the client, but no
positive obligation at all to the truth. Counsel must not knowingly break the law
or commit or countenance fraud. Within these unconfining limits, advocates freely
employ time-honored tricks and stratagems to block or distort the truth.135
In other words, as long as it does not violate their rules of professional conduct
and the law, lawyers can engage in exaggerations or minimizations, and strip words of

131
132
M. E. Frankel, “The search for truth: An umpireal view” (1975) 123:5 University of Pennsylvania Law
Review 1031, p. 1035.
133
Farmer, supra, footnote 112.
134
V. Bell, G. Villalobos and D. Davis, D. “Attorneys”, in T. Levine, ed., Encyclopedia of Deception (Los
Angeles: Sage, 2014) at 753-756; A. M. Bulow-Moller, “Trial evidence: Overt and covert communication
in court” (1991) 1:1 International Journal of Applied Linguistics 38; Atkinson, supra, footnote 116.
135
Frankel, supra, footnote 132.
33

their context136. To a certain extent, they can also make strategic assertions, tactical
interruptions, baseless suggestions and technically true but misleading statements, and
attack the credibility of witnesses known to be telling the truth137. Therefore, considering
that “the largest determinant of a deception judgment […] is the credibility of the person
being judged”138, and that high credibility witnesses who lie have a better chance being
believed than low credibility witnesses who tell the truth, lawyers might purposefully
attempt to create in trial judges a belief which they believe is false.
However, even if words were not subject to manipulation nor used to deceive,
witnesses can, without any intention to mislead, report inaccurate information as a result
of memory loss or distortion139. Furthermore, verbal communication is also prone to false
beliefs and inaccurate stereotypes, as well as heuristics and cognitive biases, which can
adversely affect the trial judges’ understanding of the witnesses’ testimony140.
For example, according to the Dangerous Decision Theory141, upon seeing a
witness for the first time, trial judges make an initial judgment outside conscious
awareness on the witness trustworthiness. From the initial judgment forward, trial judges
will unconsciously overvalue the evidence that confirm the initial judgement and
undervalue the ambiguous evidence as well as the evidence that disconfirm the initial

136
D. Galasinski, The language of deception: A discourse analytical study (Thousand Oaks: Sage, 2000).
137
L. K. Griffin, “Narrative, truth, and trial” (2013) 101:2 Georgetown Law Journal 281; F. Strier, “Making
jury trials more truthful” (1994) 30:1 University of California, Davis Law Review 95; Fortune, supra,
footnote 103.
138
Bond Jr, supra, footnote 99, p. 487.
139
J. W. Lacy and C. E. L. Stark, “The neuroscience of memory: Implications for the courtroom” (2013) 14
Nature Reviews Neuroscience 649.
140
E. Peer and E. Gamliel, “Heuristics and biases in judicial decisions” (2013) 49:2 Court review 114; C.
E. Jones, “The troubling new science of legal persuasion: Heuristics and biases in judicial decision-
making” (2013) 41:1 Advocates Quarterly 49; S. E. Redfield, Enhancing Justice: Reducing Bias (Chicago:
American Bar Association, 2012).
141
Porter, supra, footnote 30.
34

judgment. Thus, given this confirmation bias142, trial judges will end up highly confident
in the final judgment of the witness’ trustworthiness. However, since the initial judgment
can be based on false beliefs and inaccurate stereotypes, the witnesses’ evidence
evaluation could be distorted from the very beginning, but trial judges could still think,
without an iota of bad faith, that they are 100% objective in conducting the evaluation.
Clearly, understanding the witnesses’ testimony is not a straightforward task.
9. Conclusion
During the Middle Ages, trials by ordeal were used to adjudicate criminal matters.
For example, the ordeal by hot iron essentially required that the accused, after attending a
religious ceremony, carry a hot iron in one of their hands for a certain distance. The hand
was subsequently wrapped and, later on, examined to determine if the accused was guilty
or innocent143. Today, although such techniques are a thing of the past, pseudoscientific
notions, as well as false beliefs and inaccurate stereotypes about nonverbal
communication, have found their way to trial judges and lawyers. During trials, using
these ideas that have no more scientific value than trials by ordeal, can result in dire
consequences.
While it goes without saying that modern day courtrooms should be more
advanced than the Middle Ages’ trials by ordeal, if the assessment of the witnesses’
credibility is based on notions that lack any form of peer review, one should ask why we
might have not advanced from those dark times as far as we should have. One possible
reason, the gap between judicial professionals and research scientists, requires concrete

142
R. S. Nickerson, “Confirmation bias: A ubiquitous phenomenon in many guises” (1998) 2:2 Review of
General Psychology 175.
143
Troville, supra, footnote 45; I. C. Pilarczyk, “Between a rock and a hot place: The role of subjectivity
and rationality in the medieval ordeal by hot iron” (1996) 25:1 Anglo-American Law Review 87.
35

actions from both parties to be mitigated. This paper aims to address part of the issue by
offering judicial professionals an overview of the scientific literature on nonverbal
communication needed to gain insight on the impact of nonverbal communication in
courtrooms and to promote the development and the implementation of evidence-based
best practices.
Obviously, we do not expect judicial professionals to drastically change the way
they do things. However, trial judges and lawyers should keep in mind that the many
meanings or interpretations of nonverbal behaviours, influenced by cultural backgrounds
or other contextual factors, prohibit literal translations, and that only paying attention to
words at the expense of gestures, facial displays, and eye gaze, is not without hazards.
Moreover, rather than having the unrealistic expectation of accurately detecting
deception, trial judges and lawyers should use nonverbal communication to enrich their
understanding of witnesses and their testimony with a fuller grasp of the complexities of
communication and the various reasons for the nonverbal behaviours they see. Although
these guidelines may appear simple or even trivial, we believe that, if implemented, they
could have a tremendous positive impact in the judicial system.
36

Nonverbal Communication in Courtrooms: Scientific Assessments or Modern Trials by Ordeal?

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Running head: NONVERBAL COMMUNICATION IN COURTROOMS

Nonverbal communication in courtrooms: Scientific assessments or modern trials

Vincent Denault 1 & Norah Dunbar 2

(FRQSC) for a doctoral research scholarship attributed to Vincent Denault, as well as

on an earlier version of this manuscript.

Manuscript accepted for publication in

The Advocates’ Quarterly

The final publication is available at Thomson Reuters

Address for manuscript correspondence

Vincent Denault, Département de communication, Université de Montréal, Pavillon

vincent.denault@umontreal.ca. + 1 514 240 9638.

nonverbal behaviours in courtrooms. We discuss how to differentiate illegitimate claims

from scientific knowledge about nonverbal communication, give an overview of key

of putting the witnesses’ nonverbal behaviours to use in courtrooms. The implications of

a more nuanced understanding of nonverbal behaviours are also discussed.

2. Demeanour: The legal world’s common sense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

2.1. Trial judges’ use of nonverbal behaviours . . . . . . . . . . . . . . . . . . . . . . . . . 7

2.2. Unreliable training for judicial professionals . . . . . . . . . . . . . . . . . . . . . . . 8

3. Pseudoscience vs. scientific knowledge: A distinction that matters . . . . . . . . . . . . . 10

4. Nonverbal behaviours: Laying the groundwork . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

4.2. Facial displays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

4.3. Eye gaze . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

5. Culture: An important factor to consider . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

6. Deception detection: What science tells us . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

7. Face-to-face interactions: To understand and adapt . . . . . . . . . . . . . . . . . . . . . . . . . 27

8. Discussion: Are words a better window to the soul? . . . . . . . . . . . . . . . . . . . . . . . . 31

considering the impact of their use. However, whether in personal or professional

about nonverbal communication, can result in dire consequences.

amount to one’s deprivation of liberty7 or be a matter of life or death8.

assumptions about nonverbal communication and the detection of deception9. Worse,

overview of the scientific literature on nonverbal communication which, in our opinion,

is needed to gain insight on the impact of nonverbal communication in courtrooms and to

promote the development and the implementation of evidence-based best practices.

nonverbal communication. Subsequently, we will lay the groundwork of this paper by

nonverbal communication in deception detection and face-to-face interactions. A

discussion on the impact of verbal communication will complete this paper.

2. Demeanour: The legal world’s common sense

such evidence is contradictory, the impact of the witnesses’ credibility on decision-

behaviours, when assessing their credibility:

expression, the looks of anger, confusion and concern.13

courtrooms, notably in the credibility assessment of witnesses14, the importance of which

explains the deference courts of appeal pay to trial judges:

It is the highly individualistic nature of a determination of credibility, and its

dependence on intangibles such as demeanour and the manner of testifying, that

the trial judge’s factual findings, particularly those pertaining to credibility.15

However, the credibility assessment of witnesses, and therefore the appraisal of

determination of the cases based on the facts in evidence”18. Unfortunately, in practice,

far from being unusual19.

2.1. Trial judges’ use of nonverbal behaviours

likely to give dubious meanings or interpretations to various nonverbal behaviours. For

nervousness, his fleeting glare and his numerous hesitations in cross-examination,

other litigants, attend trainings on nonverbal communication.

2.2. Unreliable trainings for judicial professionals

When it comes to nonverbal communication, a simple Google search reveals a

courses in good faith.

more to answer the question”29.

contrary to extensive scientific research about nonverbal communication, that is

several thousand peer-reviewed papers published by research scientists from different

disciplines, including psychology, communication and medicine, making nonverbal

communication a highly interdisciplinary research interest32.

However, the lack of knowledge of those peer-reviewed papers could explain,

little or no clear connection with scientifically validated and recognized knowledge”33.