In my respectful submission, I believe that insightfulness of a Judge alludes not just to the facts presented to him, but the way it is said, both by verbal and non-verbal communication. A Judge must use all of his senses, to hear, see, smell, taste, and feel what is really going on in a dispute between one fellow and another, and to Judge accordingly.
If something, ‘does not smell right’, or ‘does not feel right’, it is something to do with our general perception of things: An insight
As a baby, we learn that by making certain sounds, we get certain reactions. A mother will generally know from the tone and sound of whimperings of their baby, whether it is hungry, or needs changing, or is happy/unhappy.
Nothing changes. As we get older, sub-consciously we recall those initial soundings, and the way in which people react to them. Once we learn how to speak, we learn that admitting or denying something, gives a different reaction to the one that receives it. We learn very quickly that if we do wrong, and tell someone, we get an adverse reaction.
A typical question to a child when asked have you brushed your teeth before going to school? The answer, is yes, or no. No, will invoke a response to do so, perhaps with irritation and anger that the child forgot. Yes, will invoke a level of satisfaction. So, what is the easier response to give? Even if it is a lie…
An alternative, would be to say nothing. Sometimes a child gets away with it when the questioner is busy doing other things. Further alternatives, are to question a question to buy time and avoid the true response. Other alternatives are to argue the point of brushing one’s teeth, again to avoid telling the truth that teeth have not been brushed.
And so it begins….’Oh what a tangled web we weave, when first we practive to deceive…’, Sir Walter Scott
I believe that we are programmed to tell the truth on the basis that it is far easier to tell the truth, than to tell a lie. The way in which our speech is formed, and the way in which we construct sentences, is based on truths. Children learn to read from books which are logical and factual. They are not taught, heaven forfend, how to lie. There is no effort in telling the truth. You do not have to have a long or a good memory to say what is truthful. It just comes out easily.
Conversely, there is much effort in telling a lie. You have to really think about it; You have to remember what version of a story you have told to one person, in order to ensure the same version is told to another. Your mind can not cope. There will be a tell-tale sign somewhere. It may come out in body language. Telling a lie is a great stress in itself both physically, mentally, and emotionally. One may start to sweat profusely, dry mouth, gulping, pupils may dilate, noses start itching, basic liars don’t sit still; They fiddle with things.
In construction of sentences, the mind is conflicted between knowing the truth of something, and telling a lie. A good liar will keep it simple. A good liar will stick to the truth of something as much as possible, and only subtly change certain key facts, nevertheless the choice of words used may give an indication of a lie taking place. Don Rabon in his excellent book, ‘Investigative Discourse Analysis’, proffers some indicators to look out for, when people speak and use certain words together.
I give just a few examples:
Generally, the length of a sentence given by someone telling the truth, is usually between 10 and 15 words per sentence. Any more, or less is an indicator that all is not as it seems. Taking one sentence out of context is also wrong. You have to look at the average length of a sentence knowing as the Mean Length of Utterance.
Any story has a beginning, a middle, and an end. A truthful response will provide a proportionate length of story, so that if the beginning, middle, and end is roughly the same length, this is indicative of telling the truth. Anything different to this, may be indicative of being economic with the actuality.
When someone recalls something in the past, they use past tense to recall facts. If the tense of a sentence is suddenly changed mid-sentence, or from one sentence to another (usually changing between past and present tense), this is indicative of deception.
When giving a confession we usually refer to ourselves in the 1st person (I, me). When someone uses the 2nd person during a confession, it is usually indicative of someone distancing themselves emotionally from a situation. This too is indicative of a lie.
A Judge has to be both wise and insightful to get to the truth of the matter, or to be able to make a Judicial decision.
Professor David Rosen is a Solicitor-Advocate, Partner and head of Litigation at Darlingtons Solicitors, a Certified Fraud Examiner, and a visiting Associate Professor of Law at Brunel University specialising in Fraud and Deception.
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