While investigating my first wrongful conviction case after my book Presumed Guilty was published in 1991, I was shocked to learn that the FBI “expert” who polygraphed defendant Paul Ferrell was allowed to testify that Ferrell had given a nonverbal confession. According to the agent, Ferrell nodded his head as the agent discussed why investigators believed Ferrell had killed a missing woman. Although Ferrell insisted he was innocent, the agent said his slight head nod was an admission of guilt.
Ferrell’s appeals attorney argued in his brief that this was apparently the first time such testimony had been admitted in American court and should have been disallowed. The appeals court agreed, but called the admission “harmless error.”
When I called Paul Ekman, the leading authority on nonverbal communication, to discuss the FBI polygraphist’s testimony, he expressed dismay. Ekman said the body-language interpretation of FBI polygraphists had been repeatedly shown in studies to be wrong about half the time. Even worse, he said, head nods are the most difficult of all body motions to interpret.
Ekman sounded like the voice of reason then. Unfortunately, a few years later, Ekman developed the Facial Action Coding System, which he claimed can be used to determine whether someone is lying with 95 percent accuracy. Law enforcement quickly moved to adopt the system, which was featured on the American TV series, Lie to Me, whose main character was an expert on divining deception based on Ekman.
But as Sue Russell points out in an article that’s part of her excellent series on wrongful convictions in Pacific Standard magazine, that’s bad news for innocent suspects. Regardless of the training people use to convince themselves that they can tell when someone is lying, Russell says, “research repeatedly shows that confidence to be misplaced.” You can read her story here.
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On Sunday, December 9, CBS’s “60 Minutes” is scheduled to air in the U.S. a piece examining the exonerations of the “Dixmoor Five” and the “Englewood Four,” two Chicago-area cases where juvenile defendants were wrongfully convicted of rape and murder largely on the basis of false confessions. The cases were handled jointly by the Innocence Project, the Center on Wrongful Convictions, the University of Chicago Law School Exoneration Project and cooperating private attorneys. The piece will likely also explore the resistance by State’s Attorney Anita Alvarez to the free the young men even though there was compelling DNA evidence pointing to other men with violent criminal histories in both of the cases.
