THE BLOG
11/29/2008 05:12 am ET Updated May 25, 2011

Truthfulness, Justice and the American Way

While the fate of the nation hangs in the balance, so does that of Troy Anthony Davis (details in my 9/22/08 "Faith-Based Cruelty" post). He personifies the continuing threat to justice (and to life) of our de facto judicial system. Guilt "beyond a reasonable doubt" lies at the heart of our system. The jury (or judge) is our proxy in establishing guilt or innocence. If our proxy is deprived of vital evidence, we are all deprived of justice.

Because truthfulness is at the heart of Mr. Davis' case, I turned to Paul Ekman. Dr. Ekman has devoted decades to the study of human emotions, with particular emphasis on the expression of those emotions in the face and to how those facial expressions predictably reveal deceit... lying. His pioneering science uniquely qualifies him as an expert in deception. What does he think? His recommendation demands wide attention.

With his permission, here is what Dr. Ekman advocates as a meaningful advance toward a more just society:

This procedural change would reduce mistakes in the criminal justice system: decreasing the possibility that guilty people will go free or innocent people will be convicted or executed.

One example of why this is needed is happening in Georgia, in the well-publicized case of Troy Davis. After spending 17 years on death row, a federal appeals court stayed his execution just three days before it was scheduled, to hear further arguments from defense and prosecution. There was no physical evidence: no DNA, no murder weapon, and no fingerprints, just the testimony of 9 witnesses, 7 of whom later renounced their testimony. The Georgia Supreme Court by 4 to 3 voted not to accept the recantations as the basis for a new hearing or trial, so the execution is to proceed. What happened in those interrogations 17 years ago? Why did 7 witnesses say one thing then and another later; when were they lying, and why? We can't know because those interrogations were not recorded.

Recordings are not required for interrogations by federal law enforcement or antiterrorism agencies, or by most state, country and municipal police. But some have taken a first step in that direction. Senator Obama co-sponsored legislation in Illinois requiring audio recording but only of suspect's interrogations, so it would not have helped Troy Davis. The interrogations of everyone -- witnesses and suspects - should be recorded. And not just in capital cases (as in the few states that do require recordings), but for any crime where the penalty could be a long jail sentence.

Stephanie Pettigrew was recently on trial for molestation in Gillette, Montana, but the trial ended in a hung jury because some jurors believed her claim that her confession had been coerced. Sheriff Captain Roy Seeman said that his office was now reconsidering his policy of not recording interrogations. State Representative Erin Mercer said many cases have been throw our or lost because an interview wasn't recorded.

Objections by the police that no one will talk if their words are recorded have been the chief obstacle to such legislation. Such claims are groundless. When mandatory recording of all interrogations was required in England there was no drop in convictions, comparing the rate ten years before and ten years after that requirement was instituted. Not coincidentally, every English policeman was given 40 hours of training in how to conduct effective, non-coercive interrogations. Since it restored public confidence in police practices in England, the police now enthusiastically embrace recordings.

Quite a different reason for recording interrogations is the opportunity it would provide to learn from mistakes. When later events vindicate someone whose earlier interrogations suggested was guilty, those interrogations could be examined to see what went wrong, and that information could then be introduced into police training. It would also make investigators more conscious of what they do, reducing the possibility of coercive or abusive tactics.
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Paul Ekman is the author ofTelling Lies and co-author of Emotional Awareness. Dr. Ekman provides training in recognizing deception to law enforcement and national security in the U.S. and England. Our program with him is on our website, PaulaGordon.com.