Back in June, I posted a couple of items about David Matsumoto's (from Humintell) training session on micro-expression analysis and lie detection. I had the good fortune to attend a couple of David's sessions at the American Society of Trial Consultants conference in Atlanta.
According to the "post-test," during which we were challenged to identify facial expressions that were exposed for only a fraction of a second, I am a bit of a emotion-detection savant. While I got 85% of the expressions correct, the problem was that I didn't really have any confidence in what I was doing. But the data don't lie -- I was getting it.
I am certainly not ready to chuck everything I know about voir dire and jury behavior in favor of micro-expression analysis (and David would never suggest that anyone do so), but I do recognize the potential value of this technique for identifying emotional "hotspots" among prospective jurors. So, last week, I put my "m.e.-dar" to the test.
We were conducting voir dire in a statutory rape case. The defendant was 19 at the time of the alleged sexual incident and the complaining witness was 15. Not exactly a middle-aged priest diddling an eight year-old altar boy after services. We were definitely looking for jurors who would have some ambivalence about applying the statutory rape law to a case involving a couple of teenagers (allegedly) having consensual sex.
In one of the individual voir dire questions, the judge asked each prospective juror whether s/he would have any difficulty being fair in a case of this type, "which involves the rape of a child under the age of 16 -- in this case a girl who was 15 at the time." Each time this question was asked, I was careful to stare intently at the face of the prospective juror. In a couple of instances, I detected contempt (which is the only one-sided expression), suggesting to me that the juror didn't think too highly of the law being applied in this case. A few jurors looked away from the judge briefly and smiled, perhaps betraying their own sexual escapades at a similar age. Such reactions suggested that the juror might be sympathetic to our case, in that s/he might not be trying too hard to find a reason to convict the defendant.
By contrast, a some prospective jurors crinkled their noses in disgust when the judge described the charge. Perhaps in confirmation of this reaction, several of them indicated that they had close friends or family members who had been the victims of sexual abuse. While I did not recommend that my client strike any prospective juror solely on the basis of such a facial reaction, it did cause me to review their questionnaire responses and suggest that my client request follow-up questions.
As with all such "experiments," we are faced with a problem of the counter-factual. Would I have evaluated jurors differently without paying attention to micro-expressions? Would my judgments have been less astute? Would the jury verdict have been any different? There is, of course, no way to know because this trial will take place only once. In addition, in Massachusetts, attorneys and parties are not permitted to interview jurors after a verdict has been rendered. So, we will never know whether my assessments of individual jurors were generally correct. I am fairly confident, however, that I didn't harm our case by looking for micro-expressions. And I think it might well have helped.
I know that there have been many studies testing the efficacy of micro-expression analysis. To the best of my knowledge, however, there has never been a study testing its value in jury selection. Perhaps Humitell would consider running such a study in the near future. I would certainly be willing to be a guinea pig!