Demeanour, credibility and remorse in the criminal trial

Abstract

This article, referring to South Africa as well as to selected other common law jurisdictions, proceeds from the premise that it is a well-accepted practice for judges to consider demeanour in assessing the credibility of a witness and in assessing whether the accused shows remorse when decisions regarding sentences are taken. However, the article also takes cognisance of the fact that there is a lack of generally agreed-upon objective methods for the identification of remorse. The article was prompted by recent health precautions regarding the mandatory use of face masks, in order to protect people and to contain the spread of the coronavirus, which provides an opportunity to review demeanour in general and perceptions concerning facial demeanour or facial expressions in the courtroom, in particular. The article explores the validity and reliability of findings on remorse and of making credibility assessments based on demeanour evidence. Part 1 of the article is an introduction. Part 2 of the article provides a brief overview of credibility and demeanour evidence in the courtroom. Part 3 of the article examines remorse and demeanour evidence in criminal trials. Part 4 of the article considers demeanour evidence as a ‘tricky horse to ride’. Part 5 of the article provides a discussion of empirical research studies in the field of social psychology relevant to the reliability of finding credibility and remorse on the basis of demeanour evidence. Part 6 briefly discusses COVID-19 face-covering regulations and demeanour evidence in the criminal trial. The article emphasises that although non-verbal cues could be valuable to judges, such evidence may be unreliable and that courts have cautioned against demeanour evidence being afforded undue importance. The article concludes that even when facial expressions are available to the court, it would be in the interests of justice to exercise great care concerning demeanour in general and facial expressions in particular as a guide to assessing credibility and the existence of remorse.