Demeanour, credibility and remorse in the criminal trial

• Author: Olaborede, A.
• Published date: 06 July 2021
• Pages: 55-75
• DOI: https://doi.org/10.47348/SACJ/v34/i1a3
• Date: 06 July 2021
• Citation: (2021) 34 SACJ 55

Demeanour, credibility and

remorse in the criminal trial

ADEBOLA OLABOREDE*

LIRIEKA MEINTJES-VAN DER WALT**

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 assessi ng 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 identication 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 ndings on remorse and of

making credibi lity assessments based on demeanour evidence. Par t 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

eld of social psychology relevant to the reliability of nding credibility

and remorse on the basis of demeanour evidence. Part 6 briey 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 unrel iable 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 i nterests of justice to exercise great care concerni ng

demeanour in general and facial expressions in particular as a guide to

assessing credibility and the existence of remorse.

1 Credibility and demeanour evidence in the courtroom

In the legal context, an attempt to fathom ‘credibility’ refers to ‘the

process for assessing the truthfulness or believability of a witness’s

* Adebola Olaborede LLB (Nigeria), LLM (Stellenbosch), LLD (Fort Hare). Lecturer,

Nelson Mandela School of L aw, University of Fort Hare.

**Lirieka Meintjes-van der Walt BJuris LLB (UPE) LLM (Rhodes) DJuris (Leiden),

Adjunct Professor, Nelson Mandela School of Law, University of Fort H are.

55

https://doi.org/10.47348/SACJ/v34/i1a3

(2021) 34 SACJ 55

© Juta and Company (Pty) Ltd

testimonial statement…’.1 Courts take into account a variety of factors

like the accused’s demeanour, integrity, consistency of testimony,

candour, age (where appropriate), temperament, intellect, personality,

objectivity and ability effectively to communicate what he or she

would like to say, etc when assessing the credibility of witnesses.2

Given all the factors that the judge must consider, it seems that the

role of demeanour in assessing credibility in the courtroom is limited.

Nevertheless, the role of demeanour to determine the truth of a

witness’s testimony is considered to be signicant,3 and according to

Naude, ‘it can be the factor that tips the scale beyond a reasonable

doubt’.4 Demeanour evidence, furthermore, has a ‘privileged place’ in

decision-making and has ‘roots deep in the history of jurisprudence’.5

The trial judge has the ‘undisputed advantage’ of observing a

witness’s demeanour, ‘the outward bearing of a person’, 6 when giving

evidence or when talking or even while sitting quietly in court.7 At the

appeal level, the judge, to some extent, has to rely on the ndings of

1 See GL Ogden ‘The role of demeanour evidence in determining credibility of

witnesses in fact  nding: The views of ALJs’ (Administrative Law Judges) (2000) 20

J Nat’l Assoc Admin L Judic’y 1 at 26.

2 PJ Schwikkard & SE van der Merwe Principles of Evidence 4ed (2016) 574 and

BNaude ‘Face-coverings, demeanour evidence and the right to a fair trial: Lessons

from the USA and Canada’ (2013) 46 CILSA 166 at 170. Also see Ogden op cit (n1)

26 where the author also st ates other factors that may be considered wh ich include

‘(1) demeanour and manner of testifying; (2) character of testimony; (3) capacity to

perceive, recollect or communicate; (4) opportunity to perceive; (5) character for

honesty or dishonesty; (6) bias or interest; (7) prior statements that are consistent

or inconsistent with the testimony (8) existence or non-existence of facts testied;

(9) attitude of witness; and (10) admission of untruthfulness’.

3 Lukaneva v Levy Restaurant s at McCormick Place No 05 C 6159 (N. D. Ill. June 29,

2006) at 8. The court notes that ‘demeanour continues to be thought a signicant

component of credibil ity determinations’.

4 Naude op cit (n2) 167.

5 JA Blumenthal ‘A wipe of the hands, a lick of the lips: The validity of demeanour

evidence in assessing witness credibility’ (1993) 72 Nebraska L Rev 1157 at 1158

and JA Simon-Kerr ‘Unmasking demeanor’ (2020) 88 George Wash L Re vArguendo

158, available at https://papers.ssrn.com/sol3/ Papers.cfm?abstract_id =3610460,

accessed on 12 June 2020.

6 ‘Demeanour’ Oxford English Dictionary, available at https://wwwoed com.proxygw.

wrlc.org/view/ Entry/ 49617?redirectedFrom=demeanor#eid, accessed on 21 April

2021.

7 Monyepao v S 2017 (A167/2016) [2017] ZAGPPHC 594 (19 September 2017) at

para [30]; S Bandes ‘Re morse and demeanour in the cour troom: The consequences of

misinterpret ation’ (2014) J Law Religion & State 170 at 195; MW Bennett ‘Unspringi ng

the witness memory and demeanor trap: What every judge needs to know about

cognitive psychology a nd witness credibility’ (2015) 64 Am Univ L Rev 1331 at 1350.

The author notes that: ‘…appellate courts overturn credibility determinations only

where a witness’s testimo ny is impossible as a matter of law – an ext raordinary high

standard’. and Simon-Ker r op cit (n5)158 –174.

56 SACJ.(2021) 1

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