The Law Courts, Credibility and Lying: Thoughts on the Ghomeshi Verdict

In the process of cross-examining a witness including the complaining witness/victim the ritual in court is that the lawyer attempts to damage the person’s “credibility”. First and foremost what the fuck is “Credibility”? It is not in any other context an actual thing. Or if it is it’s a persons overall reputation throughout their life. It’s certainly not the same thing as “honesty” or “truthfulness”. Including “truthfulness” in that exact moment. In other words the opposite of lying. That’s not just an issue that’s important for securing convictions. It’s an issue for justice in general.

It’s bait and switch. What we want and need in courtroom procedure is some kind of magical lie detector. The ability to know for sure if someone is lying. Or really when someone is lying. The default can and should be to assume that people are telling the truth sitting there in the courtroom having sworn to do so unless there’s some specific reason to doubt that. This is the correct default assumption because this is how human beings reason and function in the world. You don’t assume things that are not in evidence. Even though you realize that any moment they may suddenly be in evidence. You don’t assume that the car on the other street is going to plow into you and not stop at the stop sign. You’re aware that’s a possibility. But you don’t assume that they will until they start doing it.

While being able to tell someone is lying if they’re a really good liar is not possible in reality, in our everyday lives we’re quite good at detecting lies. Or at least we have a technique that works unfailingly on people who are not super super good liars. One of the things about courtrooms rituals is the hope that they will scare people who may be ok at lying to their nearest and dearest into being too afraid to lie effectively in this grand place with its grand rituals. And up until very very recently it probably would. OK so in real life not courtrooms the way we tell when someone’s lying, and we all know this, is if they have a tell. And tells are very well understood things. The specific things that allow us to know if someone is lying are:
-the person talking very quietly, trailing off, not making eye contact. Being the opposite of assertive. People who are poor liars and feel badly about it as they’re doing it will act this way.
-if they’re shifty. That is to say if their body language is wiggly. They again avoid eye contact and may do certain nervous repetitive gestures like squeezing their hands.
-when accused of something instead of denying it including emotionally or with embarrassment they give an explanation. They launch into it immediately. This is especially telling if they’re calm. The specific content of the words aren’t a denial. Such as claiming to not have a negative view of [insert despised group here] by explaining that not all of ‘those people’ are ‘the bad ones’. As well as an inappropriate emotional response like being calm when someone accuses you of something that you should be freaked out by and disgusted to be associated with. If you call somebody a bigot and they calmly analyze it instead of saying “good god no!” they probably don’t think being a bigot is a bad thing.

What the credibility destroying process in courtrooms does is it humiliates the person. And then the body language and tone of voice of humiliation are meant to be treated by the jury or judge as if that constitutes a tell, ie one of the body language things above that actually do tell you a person is lying. Or being less than fully truthful, not really giving you all the information they have on that topic. This is bullshit. We have all this information in our world today! All the stuff about tells from psychology but also just logical thinking and philosophy telling the difference between this category and that category. Humiliation versus Lying. We should be using this knowledge in our court rooms. It’s so unbelievably bogus that in a world so capable at empirical science that we are willing to carry-on with this farcical ignoring of reality in a context where it is so very important. Why do we allow the procedure in our courtrooms to be based on something that we know is not true? It’s like the Reid technique . A discredited interrogation technique that led to many false convictions.

The lawyer thinks up every humiliating thing that she can say to the person or ask them to reveal about themselves and lo and behold the person actually is humiliated. And then we all, and some people have really been showing this in the Ghomeshi trial, are conditioned to respond to that as untruth. And as absolute certain evidence of untruth. WTF?! Are we a bunch of medieval yokels? If you humiliate someone they will appear humiliated. That’s not evidence of anything except what you’ve just done to them. And of course in this particular trial the pretense is that this humiliation ritual isn’t really about the content of what the defense attorney is making the witnesses talk about. She’s making them talk about the letters that they wrote to the man who physically assaulted them after it happened. Trying to make friends. This is certainly humiliating to have millions of people know. It’s humiliating to have strangers looking right at you as you have to speak about it very much under duress.

But just as the humiliated body language is not a tell, and is therefore not a demonstration of lying, to have shown a lack of hostility toward the perpetrator is in no sense evidence that you were lying about the crime. The scenario that’s spun out rather obliquely in order that it’s flaws are not seen is that, it’s consistent with not having been assaulted to carry-on trying to make friends. Well of course that isn’t proof that that is what happened. It’s also a logical fallacy. Sometimes called “fallacy of the undistributed middle”, sometimes called “the fallacy of dichotomy”. To decide that A and B are opposites such that if A is not true then B must be true. If assaulted people avoid their assailants and a person does not avoid their alleged assailant they were not assaulted. It’s complete rubbish. A and B are not opposites, they are part of the real empirical world and there is a variety of possible phenomena concurring with having been assaulted. It is also the case that trying to make friends with someone who has abused you in fact makes perfect rational sense. It’s just not imbedded in our culture to recognize of this. It makes rational sense to try to convince yourself that things aren’t really that bad. The reason it makes rational sense to do that is because it works. It’s a form of denial. Denial is involuntary and soothing.

But the chief problem with the oblique scenario is that it only works, trying to make friends fitting with not having been assaulted, if there is no report of the assault later on! There’s nothing in that scenario to explain the going to the police later. One might ask someone promoting this idea “and why they go to the police later?” The answer is always spite, or their advances were rejected, although that was 10 years before the accusation. Which is something that the scenario promoter has simply made up out of thin air. If you have an assault, a post assault effort to make friends and later on you have making a complaint to the police you can arrange them in this weird scenario whence the assault is made up but you’re building that weird scenario onto things that we have direct evidence for. The the assault. The friendly letters. And the trip to the police station. You cannot then invent the spiteful spurned pissed off state within the victim out of whole cloth and have that have the same status as the as the events that we direct evidence for. The whole thing is a tissue of bullshit. The only thing that comes close to holding it together, and that’s only for people who don’t actually examine it in a rigorous way, is the idea that you have Magic Lie Detector Evidence from the person’s body language in court when they were asked about this. Or rather when they were ritually humiliated by a hostile opposing attorney. Wherein people did see something. But what they saw was the body language of humiliation. Not the body language of a tell. The whole thing is smoke and mirrors. It’s also circular. The supposed evidence of lying along with the oblique scenario including the raw invention of the spiteful spurned pissed off state are each bootstrapping the other. You have lying that is not lying being the evidence that there MUST HAVE BEEN the spiteful spurned pissed off state. And the idea of her spiteful spurned pissed off state is a reason for believing that the humiliated body language is really evidence of lying. The ‘spurnedness’ caused the ‘lying’. Circular.

Our justice system should be better than this. Not just it should be more effective at dealing with criminals, that’s another issue. Defense attorneys should be required to present rational cases not elaborate fairytales. If that were so it would in no sense harm justice. Our justice system should not be relying on things that are obviously trickery and lacking any basis in reality. The trickery being the promotion of the lie that body language-based evidence of being humiliated is evidence of lying. And absolutely certain evidence of lying.

The reasoning about this case seems to be that if a scenario can be imagined (all these unrelated women lied for some unknown reason) that means it is possible. And if it is possible that it is likely. And if it is likely that it happened. This squirrley reasoning is seen as constituting actual proof. If Joe Bozo thinks this way that’s not surprising. But if a criminal court judge does that is a problem. Whether it is this particular judge or this is the way judges in general are taught to think the fact remains that they’re not even showing the competence at reasoning of a good undergrad philosophy student.

The judge seems to have assessed the victims honesty not on how they described the ACTUAL CRIMES but on everything else. If it is thought the law is supposed to be applied that way then it has gone astray. So easy in our precedent system. The habit (not an actual requirement) has become to introduce vast volumes of personal information about the witnesses and if they are less than open about any of it their testimony is deemed tainted and banned. It sounds as if Judge Horkins elected to erase from his brain any mention of violent assault simply because the witnesses were less than forthcoming about things they did after the assaults. Including things they did after the assaults that they were not even asked about by the police. Thank goodness testimony from witnesses to bank robberies and muggings doesn’t work this way! Oh, bank robbers lawyer’s don’t offer the service of vast investigation into the witnesses to “impeach” them. Because: no money. Only wealthy clients get this service and they seem to chiefly be accused of crimes of sadism. So the lawyer becomes a medieval-like faithful retainer to their “master”/client and takes on his grudges against his enemies. And this service it is reserved for wealthy sadists. Committing acts of recreational torture. That’s certainly something we want the law to have a big loophole for.

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