Mediator Steve Schulwolf and University of Connecticut School of Law professor Julia Simon-Kerr discuss the challenges and opportunities that COVID-19 presents the American legal system. As courts are preparing to reopen and conduct trials with COVID-19 protocols there is the need to balance safety and truth ascertaining considerations. Along these lines, Mr. Schulwolf asks the question of whether a masked witness can be trusted. Ms. Simon-Kerr answers in the affirmative. So not only is Zorro really cool, he is a man that can be trusted!
Ms. Simon-Kerr asserts that the science is well-settled and has been for decades. People simply do not assess non-verbal cues as well as they think they do. In fact, people’s assessment of demeanor uncovers liars no better than chance. Comparing one’s observations with stereotypes of what an honest person or liar looks like is ineffective. Yet despite numerous studies reaching the same conclusion the law continues to emphasize the importance of demeanor assessment. Ms. Simon-Kerr suggests three reasons: (1) the law is inherently conservative and deferential to long-held beliefs; (2) the science is counter-intuitive – most people believe they can identify liars; and (3) there are little alternatives.
Ms. Simon-Kerr and Mr. Schulwolf note that allowing the jury to assess a witness’ demeanor is well entrenched in American jurisprudence. F.R.C.P. 52 requires appellate courts to defer to a trial court’s finding of fact because the trial court assesses the demeanor of each witness. Other courts have determined that it violates a defendant’s Constitutional rights under the Confrontation Clause to permit a witness to testify in a disguise that hides his or her mouth. Accordingly, recent attempts to conduct COVID era trials have established protocols requiring witnesses to take off their masks while testifying. Ms. Simon-Kerr deems this as a lost opportunity and suggests that allowing witnesses to don masks would force the judge and jurors to focus on the substance of the testimony. Ms. Simon-Kerr suggests that court’s provide jurors with a jury instruction acknowledging that verbal cues are poor indicators of veracity and focus should be placed on the actual testimony. As for mediations, Mr. Schulwolf noted that he often explains that as a neutral his job is not to determine whether a party is telling the truth. That said he often points out litigation risks often based on how presentable certain witnesses appear. These assessments are honest attempts to compare common juror stereotypes of what makes a good witness (not sweating, good eye contact, ect) with the demeanor of each witness. Under our current system where determinations of credibility are rarely overturned, having a neutral assess litigation risks can be a valuable service.
Both Mr. Schulwolf and Ms. Simon-Kerr have their doubts concerning whether the rules concerning credibility will be reassessed in light of COVID-19. Using that as a segue, the two also discuss another one of Ms. Simon-Kerr’s articles urging courts to stop “splitting the baby” while making complex valuations. Ms. Simon-Kerr (and her co-author) opine that the legal system is ill-suited to make factual determinations based on complex mathematical models. Mr. Schulwolf notes that attorneys willingly confess to being terrible at math despite the fact that valuing cases involves math and is essential to case resolution. Ms. Simon-Kerr suggests enforcing the burden of proof and encouraging appellate courts to reverse trial courts that “split the baby” when those decisions are not based on evidence in the record. Ms. Simon-Kerr’s suggests that litigation should resemble “baseball arbitration,” which provides greater incentives for the parties to present more reasonable valuations to the Court. Tune in to the episode here: