Interpreting Facial Expression When in Rome
"The benefits of paying less attention to witnesses' and lawyers' facial expressions are neither theoretical nor empirically grounded arguments."
"[It only takes one lawyer] to use the research [study of niqab and honesty] for a legal precedent."
"[Psychology scholars proffering recommendations which] exceed their area of expertise [may] be detrimental to justice itself."
Vincent Denault, lawyer, co-director, Center for Studies in Nonverbal Communication Sciences, Montreal
"People were focusing on what the women are saying, rather than what they look like."
"The function of witnesses' and lawyers' facial expressions goes well beyond the issue of lie detection."
"[The study was judged on an] unrealistic criterion [replicating courtroom conditions]. It would be highly unlikely that a laboratory story could replicate every aspect of a trial."
Amy May Leach, lead researcher, University of Ontario Institute of Technology study
Peter Macdiarmid/Getty Images Two women clad in the niqab, a Muslim garment that covers all but the wearer's eyes
The study now being questioned reached conclusions that might have the effect of leading the Canadian justice system to issue a directive that women appearing before the courts could wear a Muslim niqab, a veil covering the lower half of the face, while keeping the eyes visible, while testifying in a Canadian courtroom. That conclusion has now been challenged by a team of research academics whose specialty is deception.
They are alarmed at the conclusion of the study, published in the Journal of the American Psychological Association that held the wearing of niqabs improves courtroom veracity. The report of the alarmed skeptics on that finding was itself published in Psychiatry, Psychology and Law, written by Vincent Denault, who found fault with both the study's protocol and its conclusions, fearing that the false assurance might sway Canadian law in favour of allowing niqabs in Canadian courtrooms.
Canada has studied this issue before, in a less legal, more relaxed setting of custom and respect for Canadian values, when a woman of Pakistani origin insisted on her right to wear a niqab while writing a citizenship test and swearing allegiance to Canada in a citizenship ceremony. Initially, she was turned away after refusing to remove her niqab which she insisted was a necessary accoutrement to her religious beliefs.
Eventually, after calling on her rights under the constitution, she was permitted to receive her citizenship, wearing a niqab, when three justices of the Federal Appeal Court gave her leave to wear the niqab on the basis that refusing to allow her to, would violate the Citizenship Act, which holds that citizenship judges must permit the greatest possible religious freedom when administering the oath.
The study's conclusion, that the wearing of niqabs improves truth-telling in a courtroom had the effect of directly challenging the Supreme Court of Canada's ban on the wearing of a niqab in a courtroom on the basis that hiding facial expressions are not conducive to reaching conclusions based on reading an individual's face for clues respecting the veracity of their statements.
The new critique by the team at the Centre for Studies in Non-verbal Communication Sciences, was highly critical of the study itself as much as its conclusion. Deception psychologists from France and the U.K. co-wrote Mr. Desault's critique, stressing that Ms. Leach's study failed to replicate courtroom conditions. The study's liars were given two minutes in which to think up false testimony; under Canadian law a witness is able to forge their testimony for a period of months pretrial.
"Open-ended questions" were given to the liars instead of their having to respond to leading questions a real cross-examination would pose. Most courtroom lying emanates from plaintiffs or defendants, whereas the women in the study were portrayed as impartial witnesses to a criminal act. The study was poised to test only the manner in which a visible face affected the telling of factual truth.
The paper faulting the study criticized psychology scholars for intervening outside their sphere of expertise and experience. Which would certainly impact on Canadian law and the way it is practised if it were to be compromised by permitting women to wear a niqab in a Canadian courtroom, functionally screening facial expression so critical in so many instances in reaching observable conclusions.
The irony is that in Western societies where we tread with pussy-feet lest we be accused of Islamophobia, preferring to offer the benefit of the doubt where no such benefit is offered to others, in Muslim countries themselves there are now ample instances where niqabs and burqas have been disallowed and even outright banned, both for fears of stealth and crime and the encouragement of Islamist fundamentalism growing into violent jihadist outrages.