Thursday, February 07, 2013

Things They Should Study: are facial expressions informative on people who normally cover their face?

Recently there was a Supreme Court decision about whether people should be forced to expose their faces when testifying in court.  This case originated with a rape victim who wore a niqab and was called upon to testify against her attacker.

One of the ostensible reasons given for wanting witnesses to uncover their faces is that facial expression are thought to be informative in assessing the witnesses' credibility.

But is this also the case with people who are accustomed to covering their faces?  If  a certain method of communication is never available to you, would you be able to use it - and use it in the way the audience is expecting - if it were suddenly made available?  If you only ever used it in private and intimate settings and were suddenly called upon to use it in public, in front of an audience, and under scrutiny, how would your performance be read by people who use it every day?

I know someone who immigrated to Canada as a toddler.  He learned English quickly and easily like one does at that age, but he also retains the language of the old country, which he uses to talk to his parents and such.  However, because he left the old country at such a young age, he still speaks the other language like a toddler.  He has a childish accent, and he's less articulate and nuanced than you'd expect of a successful adult.  If he were called upon to testify in court in the language of the old country, his testimony would not reflect his actual credibility, because he's not accustomed to using that method of communication in the way the jury would expect.  Similarly, I find myself wondering if the facial expressions of someone who normally covers their face might also fail to reflect their actual credibility because they aren't accustomed to using that method of communication in the way the jury would expect.

I myself don't have a very expressive face, and my natural inclination is to keep it neutral. When I was a kid, people would always say things to me like "You look disgusted" or "Don't glower at Mrs. Neighbour like that" when I wasn't intentionally doing anything with my face, or feeling any of those emotions being attributed to me.  I later learned how to modulate my face in the way that's expected - a skill I was still mastering well into adulthood, because quite a lot of it I learned from Eddie Izzard - but it still isn't natural behaviour and doesn't come to me easily.  It's like telephone voice or a firm handshake - a performance I can put on, but not a natural reflection of my thoughts and feelings.  However, I'm not sure whether I'd be able to maintain the performance in so stressful a situation as testifying against my rapist, and if I can't maintain the performance my expressions may well be misinterpreted, like they were when I was a child, and be detrimental to my credibility through no fault of my own.

So if it could go so badly wrong for someone like me who has always been in a face-exposing culture, imagine how badly it can go to someone who isn't accustomed to their facial expressions being scrutinized and is suddenly having their credibility assessed based on something that they have never before had interpreted as informative!

I hope someone can actually do research and get scientific data on this, because the only thing I can imagine more terrifying than being forced to expose more of your body than you're comfortable with when testifying against your rapist is then having him set free and your credibility called into question because the jury is assuming you're more fluent than you are in a form of communication that you never use.


laura k said...

Excellent points. I do have a very expressive face BUT my facial expressions are often misinterpreted, too!

The SCOC's ruling wasn't as bad as it could have been, but it left so much open to the presiding judge's discretion and both sides' skill at arguing the necessity or non-necessity of removing the niqab. That scares me.

For the life of me I cannot understand how seeing a woman's full face, as opposed to only her eyes, is going to make a trial more fair. In addition to what you've said here, it will help the defence attorney intimidate the victim/survivor, since (I imagine) she'll feel even more vulnerable and exposed than she already does.

My heart goes out to any woman who has to endure this violation, on top of all the other violations she has already suffered.

impudent strumpet said...

And on top of all that, I'm also wondering how this acknowledgement by the Supreme Court that assessing witnesses based on facial expression is valid interacts with other things that I've heard about courtrooms. I've heard that there are very specific rules about what juries can and can't take into consideration (I think there was a thing in the news lately where a case had to be tossed out because the jury googled up information about the accused), I've heard of things being said in court later being stricken from the record and the juries have to pretend it doesn't exist, and I've seen on TV where lawyers insist that witnesses answer with a simple yes or no and don't elaborate further. It seems difficult for such strict rules to coexist with the idea that it's perfectly valid to assess witness's credibility based on something so tenuous as facial expressions.

I'm also wondering how this coexists with the fact that witnesses are under oath. If the jury thinks the witness's facial expressions make the not credible, then the jury thinks the witness is guilty of perjury. If the words the witness uttered are true, then the witness has upheld their oath but a jury still thinks they're guilty of perjury.

laura k said...

The ruling didn't care as much about facial expressions, I thought, as about the right of the accused to face their accuser. Two things are wrong with that, to my mind. One, the judge is interpreted "face the accuser" literally. I've always thought and read that the expression means, overall, knowing the charges against one, being able to examine the evidence (all the things not allowed for security certificates), not literally looking your accuser in the face. The face is not the issue.

And two, in a rape trial, the accuser is not the victim, but the state or the crown. It's not a civil trial, victim vs accused rapist. It's a criminal trial, state/crown vs. accused. The victim is a witness and not technically required to testify at all.

laura k said...

But I do agree with you, especially about being under oath.