Eye on the Jury

Besides ‘CSI’ and ‘Law & Order,’ lawyers need to ask prospective jurors if they watch new show, ‘Lie to Me’

By Trisha Renaud

It has become routine for lawyers in criminal trials to quiz potential jurors about the TV shows they watch. Both sides want to identify those who regularly watch crime shows, particularly the “CSI” series that deals with forensics.

Many jurors indicate they watch such programs. Their responses seem to indicate that “CSI” runs a close second to the “Law & Order” reruns that now air nearly round-the-clock.

But a new show has entered the picture recently, one that lawyers in both criminal and civil trials may want to raise with jurors during voir dire.

“Lie to Me,” a Fox series airing on Wednesday nights, features British actor Tim Roth as Dr. Cal Lightman, a deception expert who catches liars by reading their fleeting facial expressions and body language.

“The truth is written all over our faces,” is the show’s tagline.

“Lie to Me” is based on the lifetime of work by one of this nation’s most respected psychologists, Dr. Paul Ekman, who has signed on as a consultant to the program.

Ekman is the author of numerous books on nonverbal communication and detecting deception via body language. He is particularly known for his expertise in detecting a person’s true emotions through facial clues known as microexpressions.

The show got off to a roaring start. According to Nielsen, the January premiere drew more viewers than the return of the popular “Lost” series.

The show’s concept of catching liars—and thereby solving crimes—by studying freeze frames of faces, quick gestures and tonal inflections, is intriguing. “Lie to Me” also has an interactive Web site (fox.com/lietome) with games that allow anyone to test their talents at lie detection and learn a bit about body language.

Ekman keeps a watchful eye on his television alter ego. He writes a regular column on the “Lie to Me” Web site, using video clips to explain the science behind Lightman’s actions, and also what the fictional psychologist occasionally gets wrong.

So what’s the issue here? In particular, what’s the issue for jurors? The answer lies both in the nature of microexpressions and in the nature of people.

First, let’s look closer at microexpressions. According to Ekman’s Web site, “Microexpressions occur when people try to conceal or repress how they feel. While most facial expressions last for a few seconds, microexpressions are much faster, lasting only about 1/25th of a second. Research has found that most people say they are not able to see microexpressions.”

Nor can most people accurately detect a lie, according to Ekman.

In a 1991 study reported in American Psychologist, Ekman and a colleague tested the ability of 509 people, including federal and state law enforcement officials, polygraphers, psychiatrists, judges and others to determine if someone was lying. They discovered that only Secret Service agents performed better than chance.

More recently, Ekman told The Washington Post that he had tested 15,000 people, encompassing nearly every profession, to assess their ability to detect lies. “Less than 1 percent are any good at it,” he reported. “Most people are only at about the level of flipping a coin.”

So bottom line, viewers of the show won’t become experts at spotting a lie, no matter how avid a fan they become.

Moreover, people tend to misinterpret the meaning of certain body language. Ekman told the Post that frequently happens with certain personal grooming-type actions, such as biting the fingernails. People are certain these movements, called “manipulations,” are evidence of deception, when in fact these manipulations, have little meaning.

The possibility of such errors is Ekman’s main concern about the show, he told the Post. “We don’t want jurors thinking that because they saw ‘Lie to Me,’ that they can tell when someone on the stand is lying.”

So how much does television really impact jurors?

Over the past few years, much has been said about the so-called “’CSI’ effect.” Prosecutors complain that jurors increasingly are demanding unrealistic levels of proof, while defense lawyers worry that jurors will accept expert witness testimony without question.

Prosecutors have been the most vocal, offering up anecdotes to show that “CSI”-influenced juries are increasingly acquitting clearly guilty culprits because some inconsequential forensic evidence has not been produced or tested.

But despite such anecdotes, there is no evidence that “CSI” viewing is causing a wave of acquittals.

A 2006 survey of 1,027 summoned jurors, conducted by a Michigan judge and two Eastern Michigan University professors, made several findings. Among them:

• 46 percent of jurors expected to see some scientific evidence in every case.

• Frequent “CSI” viewers had higher expectations for both scientific and non-scientific evidence, such as eyewitness testimony, than non-“CSI” viewers.

• “CSI” viewers were more likely than non-“CSI” viewers to convict without scientific evidence if eyewitness testimony was presented.

• The data showed no statistical relationship between “CSI” watchers and those who insisted upon some scientific evidence in order to convict.

The study’s authors concluded that broader, technological changes in society may well account for the changes in jurors’ expectations of scientific evidence, much more than the viewing of a particular television program.

Nonetheless, television, like any other ubiquitous part of the culture, does have an effect on how people think and make decisions.

For anyone trying a case, the key must be juror expectations—learning through voir dire just what those expectations are and whether, in a juror’s mind, they rise to the level of a requirement.

In many cases, prosecutors, hoping to satisfy those expectations, have begun calling witnesses to explain why a particular type of scientific evidence could not be presented at trial.

And since the issue of evaluating a witness’ credibility lies in the hands of jurors in every trial, and part of such evaluation always includes a witness’ demeanor, whether or not a juror believes that a television show has given them some special insight into evaluating the veracity of a witness should be fair game for voir dire.

So ask your jurors if they watch “Lie to Me.” Ask them what they like about the show. Then ask them what they’ve learned from the show. You might learn something important.