The COVID-19 pandemic has necessitated, and accelerated the transformation from in-person hearings to virtual hearings of the court proceedings. With travel bans and physical distancing policy in place, the in-person hearing is becoming the exception rather than the norm in 2020. While an increasing number of court hearings are conducted remotely in some jurisdictions, some litigants and lawyers still object to a videoconference examination because they maintain that it is more difficult to appreciate the credibility of witness, especially witness’ demeanour remotely. The opponents argue that the remote examination reduces the chemistry that may develop between the counsel and the witness and further, it reduces the solemnity of the court proceeding (para. 39 of Arconti v. Smith, 2020 ONSC 2782).
This article intends to share my preliminary research and observations on assessing credibility of witness, more specifically his or her demeanour at remote examination. This article endeavours to introduce and analyze this issue by presenting the insights of the judges of different jurisdictions. Before we dive into the sea of the jurisprudence, it is worth reminding that in legal practice, the lawyers challenge the reliability of the testimony more often than the credibility of the witness. The “credibility” refers to a person’s interest in telling the truth while the “reliability” refers to whether the witness is actually telling the truth. An honest and credible individual may offer unreliable testimony due to some visual or oral impediments or other limitations (See para. 105 of Marchands en gros de fruits Canadawide inc. c. 9005-8397 Québec inc. (AMR Fruiterie), 2016 QCCS 4101).
What is demeanour?
The word “demeanour” includes bearing, outward behaviour, conduct, mien, comportment, manner, appearance, body language and non-verbal communication (Marcus Stone, “Instant Lie Detection? Demeanour and Credibility in Criminal Trials” (1991), Crim. L. Rev. 821 at p. 822). Some judges and lawyers are trained to observe the witnesses’ demeanour during the hearing. They may observe the witnesses’ micro-expressions of fear or sadness, asymmetrical expressions, false smiles, emblematic slips, sudden increase in pitch of voice, circumloquacious answers to questions, rapid breathing, chest heaving, frequent swallowing, sweating, blinking and pupil dilation to facilitate their assessment of the credibility of the witness.
However, it is worth reminding that while many people recognize that shaking may connote trepidation, not all cues mean the same things to all people. We may blush when we are feeling shy, ashamed or modest. To an American or a European, a firm handshake connotes confidence and strength while it is considered as a sign of aggression and rudeness in some Asian culture. When Matt raises one eyebrow, he may mean “I want to have sex with you”. However, when Peter raises one eyebrow, he may mean “I think that what you just said was very stupid” (Faryna v. Chorny, 1951 CanLII 252 (BC CA) and Mark Haddon, The Curious Incident of the Dog in the Night Time, Anchor Canada, 2004, p.14).
Therefore, to reduce the possibility of misreading the demeanour of witness, the judges and lawyers would assess the demeanour of witness in conjunction with all the other available information and evidence (M.G. Frank and P. Ekman, Handbook of Forensic Psychology, New York, Elsevier, Academic Press, 2003, p. 26)
What is the role of demeanour in appreciating the credibility of witness?
The demeanour of witness is always assumed to be in evidence. The Jerome Frank J. from U.S. wrote in his judgement that the liar’s story may seem uncontradicted to one who merely reads it, yet it may be contradicted in the trial court by his manner, his intonations, his grimaces, his gestures, and the like (Broadcast Music v. Havana Madrid Restaurant Corp., 175 F. 2d 77 at p. 80 (2nd Circuit)).
In Quebec, when I sat in the Montreal Courthouse for a hearing on shareholders dispute, I found that the judge kept reminding the witness to look at him when she is testifying. In Nova Scotia, MacDonald J. wrote in his judgement on a family case, “In observing the husband’s demeanour in giving his testimony his anger and hostility toward the wife was evident. The veins stood out in his neck as he spoke” (Y. (J.Y.Z.) v. Y. (G.J.), [2005] N.S.J. No. 292 (QL) at para. 21, 140 A.C.W.S. (3d) 999 (S.C.))
It is acknowledged that demeanour can play an instrumental role of the determination of truth when it is employed in conjunction with other factors. The appreciation of demeanour may reinforce a judgement reached by an objective assessment of the other types of evidence. It may also change the conclusion made previously and inspire the judges or lawyers to find the missing details recorded in the other types of evidence (Faryna v. Chorny, 1951 CanLII 252 (BC CA)).
Can we appreciate the demeanour of witness at remote examination?
Some opponents of virtual hearing argue that it is more difficult to appreciate a witness’ demeanour remotely as the eye contacts will be impossible to establish and that the judges and the lawyers may not be able to observe the body language of witness clearly, which is important to assess the credibility of witness.
First, Newbould J. from Ontario wrote in his judgement that the advanced video conferencing facilities can provide clarity, and if requested, close up clarity, of the witness (para. 25 of Midland Resources Holding Limited v. Shtaif, Ontario Superior Court of Justice, 2009). Jones J. from Alberta states that the current state of technology can enable him to have a “good view” of the witness for the purpose of assessing the credibility of the witness (para. 17 of De Carvalho v. Watson, Alberta Court of Queens Bench, 2000). Perram J. from Australia also wrote “[…]with the benefit of seeing cross-examination on platforms such as Microsoft Teams, Zoom or Webex. My impression of those platforms has been that I am staring at the witness from about one metre away and my perception of the witness’ facial expressions is much greater than it is in Court […]” (Capic v. Ford Motor Company of Australia Limited, [2020] FCA 486).
Second, most of the videoconference platforms have the features of sound recording, video recording and screen recording. If the credibility of witness becomes of importance at the trial, the judges can always replay the videotape as many times as they want to analyze the witness’ demeanour. That of course is not available if the recording has not been taken during the virtual hearing. The video recording may not be reliable if the witness turns on the beauty filter feature or virtual background feature of his or her application during the remote examination.
Third, observing witness’ demeanour could be challenging but it is feasible if we become familiar with the technology. Thus, some training, simulations and test hearings should be done to make the law practitioners more comfortable with the videoconference platforms as well as the virtual hearing. If the judges or lawyers find the credibility of witness is of great importance and that his or her credibility is difficult to appreciate on the virtual hearing, the expert in lie detectors could be invited to provide an expert report of the polygraph test (See Hotel central (Victoriaville) inc. c. Compagnie d’assurance reliance, Cour d’appel du Québec, 1998).
Conclusion
We are learning new ways to do things and they feel less “good” because we do not yet have the same comfort with the technology that we have with the in-person hearings. However, we should consider it as an opportunity to learn the skills to use the reliable technology to improve the access to justice and to avoid multiple indefinite adjournments in the face of an evolving pandemic. As Myers J. wrote at para. 33 of his judgement, “[…] in 2020, use of readily available technology is part of the basic skillset required of civil litigators and courts” (Arconti v. Smith, 2020 ONSC 2782). We must at least try!
(Reminder: The purpose of this article is to provide general legal information. It does not contain a full analysis of the law nor does it constitute a legal advice on the points of law discussed. To minimize the legal risk for your business, you must take specific legal advice from a lawyer on any particular matter which concerns you. Thanks for your attention. ?)