Does the Oath Make Witnesses More Truthful?
Surprisingly, swearing in witnesses may make them more truthful, and there are more things you can do to help them along the path.
Early in my career, a mentor recommended to me Robert Cialdini’s Influence: The Psychology of Persuasion (now in its 5th edition). If you haven’t read it, it includes a discussion on human “cues”—generally automatic responses to certain situations. Amid this discussion Cialdini relates an experiment in which his team had a confederate approach about getting to the front of the line at a busy copy machine, using one of three requests:
“Excuse me. I only have five pages. Can I use the copy machine?” Sixty percent of the time this was sufficient to get the confederate onto the machine immediately.
“Excuse me. I only have five pages. Can I use the copy machine? I’m in a rush.” Given the addition of a reason for the request, the confederate was successful in getting directly on the machine ninety-four percent of the time. However, it turned out that the confederate could be just as successful even without the apparently legitimate excuse of being in a “rush.”
“Excuse me. I only have five pages. Can I use the copy machine because I have to make some copies?” proved successful ninety-three percent of the time.
People, by default, seem to be willing to help a person if the person seems to have a reason. But what do “cues” have to do with witness honesty? A lot, it turns out. In The (Honest) Truth About Dishonesty, leading behavioral economist Dan Ariely relates a series of experiments on cheating (which, if we hold stock in crimen falsi, is analogous to dishonesty).
Ariely offered participants in the experiment a cash bonus based on the number of correct responses they gave on a test. He also made it incredibly easy to cheat and (it seemed to the participants) not get caught [in reality there were checks on their performance which the participants were not aware of]. In one round of tests they determined that most people cheated. Some cheated a lot, but most everyone cheated at least a little.
Surprisingly, the percentage of cheaters did not vary perceptibly as the chance of being caught further decreased or as the size of the reward increased. But the experiment did not end by confirming this.
In the next round, they preceded the test with a question related to ethics (e.g. in one situation they asked the participants to list as many of the Ten Commandments as they could remember; in others they stated that the test was subject to the university’s honor code—even where the school did not publish an honor code). Regardless of religious affiliation, or lack thereof, when cued to think about ethics immediately prior to the test, none—zero percent—of the participants cheated. Cued to focus on ethics, the average person will attempt to be honest…generally.
Ariely’s team then conducted the test on freshmen at Princeton University, who are subjected to two weeks of lectures, presentations, and even a song about the school’s honor code during their Freshman Orientation. When given the same test by Ariely’s team some weeks after orientation, the Princeton freshmen cheated at the exact same rate as the participants in other sessions of the test. The two week honor code harangue did not improve their honesty. Yet, when the test was conducted with the statement that “This test is subject to the school honor code” at the top of the page, the rate of cheating dropped to zero. The ethics cue functioned identically with or without two weeks of lectures on ethics.
Ariely’s team conducted another round of tests, but this time with the ethical cue coming after the test, but before the participants reported their results. The number of cheaters returned to the level it had been with no discussion (i.e. most people cheated). Ariely concluded that if the discussion of ethics occurs after the person has already formed the intent to cheat, it will have no effect; the key is to focus participants on ethics immediately before they CONSIDER being dishonest. Simply coming before the dishonest act is not enough.
Can this help you with witnesses? Further study revealed that the core of this honesty cue lies with the person’s self perception. If you can cue a person to think of ethics before they decide to cheat they will work to maintain their self-image of honesty. While this may be of limited value against witnesses prepared by opposing counsel, who will have long-since formed the intent to say whatever they plan to say on the central matters, it does leave you an opportunity to get them to be honest around the edges, on matters they may not have been prepared on…provided they haven’t dug in too deep with dishonesty before you cue them with ethics and begin to nibble at the outer edges of their story.
–Andrew S. Dreier