Credibility on Trial
Credibility - a tale as old as trial… Unsplash
‘Credible’ refers to a person who is capable of being believed; trustworthy.[1] Credibility plays a huge role in the justice system. Witnesses give evidence of their individual experiences with the case. Hence, it is a matter of paramount importance to ensure that they come across as credible, because they can determine who the court will ultimately side with. At first, it may seem like a rather straightforward task; a witness must tell the truth, and their word must be supported by the evidence. However, it is not that simple. There are many misconceptions and myths surrounding what constitutes ‘credible’ testimony. Issues surrounding perceptions of credibility are especially highlighted in jury-based trials. Perhaps, societal biases and views on what is ‘credible’ are more flawed than most people would think.
The law allows credibility assessments. The Evidence Act 1995 (NSW) provides an avenue for introducing proof concerning a person's ability to be believed. Section 102 of the Act establishes the credibility rule. It aims to prohibit the introduction of credibility evidence that is not relevant to the facts in issue, but it also establishes a set of exceptions under which such evidence may be introduced: evidence adduced in cross-examination; evidence in rebuttal of denials, evidence to re-establish credibility; evidence of persons with specialised knowledge and character of accused persons.[2] The rule makes it easier to prevent trials from becoming too occupied with irrelevant facts, ensuring that the focus remains on matters important to the case. However, if there is anything to be certain of beyond reasonable doubt, it is the fact that lawyers can always find a way to construct a narrative that will be most favourable for their client. Some may choose to do this by ensuring the opposing witnesses come across as not credible. The issue lies then with how credibility is perceived, and how little people really know about what makes someone’s word reliable; this leads to the nuances of the nature of human behaviour being lost to demands for unattainable perfection.
Outside the forensic domain, not much is known about what constitutes a credible testimony. For example, many would assume that contradictions within someone’s story mean they are lying. That is not true. Inconsistencies are normal due to how memory works; recalling from memory is an active process in which decisions are made about how much information to disclose.[3] For cases where a witness is unwilling to testify, it may lead to poor content quality of their testimony, even if it is based on experience.[4] In some scenarios, there may be a particular scrutiny put into how many details a person can describe. However, a lack of details in accounts being slightly different from the previous ones does not make a person less credible. A little-known fact is that when memories are being recounted, the details can vary, with some being quite specific and integral to the memory, while others more generic and tangential.[5] Despite that, studies show that memories with more specific details are seen as more trustworthy, particularly those that involve person-related details.[6] Findings also indicate that how people relate to their past experiences can shape their judgements of others.[7] It has long been recognised that jurors are not free from personal attitudes and beliefs when they enter the courtroom.[8] Ensuring that juries will not misconstruct evidence based on their superficial perceptions may be a rather difficult task.
Another facet to consider is the fact that pseudoscience (in the form of body language analysis) has started to gain popularity, something largely unhelpful in discussions on credibility. Human behaviour is nuanced, but it often gets lost in many cases, particularly those that deal with complex dynamics, which may lead to adopting a black and white view on how a person should (or should not) behave. Analysis of non-verbal communication to a significant extent is neither empirically tested nor supported by scientific theory.[9] Today, body language analysis videos are very popular, receiving a lot of views all over social media, influencing the general public’s perceptions of nonverbal cues. They tend to make quite bold claims, such as someone holding their right hand with their left hand suggests calculation of words and rationalisation of emotions. They do this despite simultaneously maintaining that one should not jump to conclusions while analysing somebody.[10] These specific assertions do not find their reflection in peer-reviewed papers.[11] In truth, everybody’s body language is different. During a trial, credibility is assessed continuously, which leads to nonverbal behaviour being acknowledged. [12] Courts should make sure that they do not allow pseudoscientific claims to go unchallenged.[13]
Credibility plays a major role in the justice system, and for that, the court must know how to assess it properly. There are many misconceptions regarding the credibility of witnesses stemming from how little people know about human behaviour. The question is: how can they be combated? In the context of jury trials, research suggests that providing juries with the right training and education can play a significant role in combating misconceptions that they may have regarding credibility. One of the ways to do this is to ensure that they have access to suitably qualified experts in the field.[14] A key benefit for the courts may lie in experts explaining their views on how various features, such as consequentiality, decay, repetition, social influence, and individual differences influence memory, aiding the jury’s understanding of the individual case.[15] Another way to do it could be through a good judicial direction to redress incorrect beliefs and attitudes.[16] Legislation itself seems to catch up on some of these issues, which helps to set out a standard as to what to expect of a person. Parliaments in Australia have already responded by creating legislation whose purpose is to counteract these beliefs and attitudes, thereby enabling juries to approach their fact-finding task unencumbered by such biases.[17] There is still a long way to go, and the growing popularity of self-proclaimed ‘body language experts’ on social media does not help the cause. Nevertheless, it is not a lost one as long as courts are willing to ensure that they are credible enough to render a just verdict.
Edited by Ariana Nariman
[1] Macquarie Dictionary (online at 9 April 2025) ‘credible’ (def 2).
[2] Evidence Act 1995 (NSW), s 102.
[3] Renate Volbert and Max Stellar, ‘Is This Testimony Truthful, Fabricated, or Based on False Memory?’, 2014 19(3), European Psychologist 207, 220.
[4] Ibid.
[5] Lynn Nadel and Katherine C. Simon, ‘Perceived memory credibility: The role of details’, (2024) 121(52), Proceedings of the National Academy of Sciences of the United States of America 1, 9.
[6] Ibid.
[7] Ibid.
[8] John Willis and Marilyn McMahon, ‘Educating Jurors or Telling Them What to Think? Credibility, Delay in Complaint, Judicial Directions and the Role of Juries’, (2017) 41(27), Criminal Law Journal 27, 49.
[9] Louise Marie Jupe and Vincent Denault, ‘Science or pseudoscience? A distinction that matters for police officers, lawyers and judges’ (2019) 26(5), Psychiatry, Psychology and Law 753, 765.
[10] Ibid.
[11] Ibid.
[12] Vincent Denault and Louise Marie Jupe, ‘Justice at risk! An evaluation of a pseudoscientific analysis of a witness’ nonverbal behavior in the courtroom’ (2018) 29(2), The Journal of Forensic Psychiatry & Psychology
[13] Ibid.
[14] Annie Cossins and Jane Goodman-Delahunty, ‘Misconceptions or expert evidence in child sexual assault trials: Enhancing justice and jurors’ “common sense”’, (2013) 22, Journal of Judicial Administration 171, 190.
[15] Laurence Alison, Mark Kebbell and Penney Lewis, ‘Considerations for Experts in Assessing the Credibility of Recovered Memories of Child Sexual Abuse: The Importance of Maintaing a Case-Specific Focus’, 2007 12(4), Psychology, Public Policy and Law 419, 441.
[16] John Willis and Marilyn McMahon, ‘Educating Juries or Telling Them What to Think? Credibility, Delay in Complaint, Judicial Directions and the Role of Juries’, (2017) 41(27), Criminal Law Journal 27, 49.
[17] Ibid.