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 art icle, referring to South Af rica as well as to selected othe r common

law jurisdictions, pr oceeds from the premis e that it is a well-accepted

practice for judges to consider demeanour i n assessing the credibi lity of a

witness and in assessi ng whether the accused shows remorse when decisions

regarding sentences are ta ken. However, the article also takes cognisa nce

of the fact that there is a lack of gener ally agreed-upon obje ctive methods

for the identication of remorse. T he article was prompted by recent healt h

precautions regarding the m andatory use of face masks, i n order to protect

people and to contain the spread of the coron avirus, which provides an

opportunit y to review demeanour in genera l and perceptions concerni ng

facial demeanour or facial expres sions in the courtro om, in particu lar. The

article explores the valid ity and reliabilit y of ndings on remorse and of

making credibi lity assessments based on demeanour evidence. Par t 1 of the

article is an intr oduction. Part 2 of the ar ticle provides a brief overview of

credibility and d emeanour evidence in the cour troom. Part 3 of the a rticle

examines remorse and d emeanour evidence in cri minal tri als. Part 4 of

the article considers deme anour evidence as a ‘trick y horse to ride’. Part 5

of the article provides a di scussion of empirical rese arch studies in the

eld of social psychology relevant to the reliabi lity of nding cr edibility

and remorse on the basis of demeanou r evidence. Part 6 briey di scusses

COVID-19 face-covering regulation s and demeanour evidence in the

crimina l trial. The ar ticle emphasises that alt hough non-verbal cues could

be valuable to judges, such evidence may be unrel iable and that courts have

cautioned against demeanou r evidence being afforded undue impor tance.

The article concludes that even when facia l 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 faci al expressions in par ticular as a guide to

assessing credibil ity and the existence of rem orse.

1 Credibility and demeanour evidence in the courtroom

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

process for assessing the truthf ulness or believability of a wit ness’s

* Adebola Olaborede L LB (Nigeria), LLM (Stellenbosch), LL D (Fort Hare). Lecturer,

Nelson Mandela School of L aw, University of Fort Ha re.

** Lirieka Meint jes-van der Walt BJuris L LB (UPE) LLM (Rhod es) DJuris (Leiden),

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

55

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(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 abilit y 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 credibilit y in the courtroom is l imited.

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

do ub t ’.4 Demeanour evidence, fu rthermore, has a ‘privileged place’ in

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

The trial judge has the ‘und isputed 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 evide nce in determin ing credibil ity of

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

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

2 PJ Schwikkard & SE van der Merwe Pr inciples of Evi dence 4ed (2016) 574 and

BNaude ‘Face-coverings, d emeanour evidence and t he right to a fair tri al: Lessons

from the USA and Canad a’ (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 testi fying; (2) character of tes timony; (3) capacity to

perceive, recollect or com municate; (4) opportun ity to perceive; (5) charac ter for

honesty or dishonest y; (6) bias or interest; (7) prior st atements that are con sistent

or inconsistent with t he testimony (8) existence or non -existence of fac ts testied;

(9) attitude of witne ss; and (10) admission of untruth fulness’.

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

2006) at 8. The cou rt notes that ‘demeano ur continues to be thoug ht 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 l ips: The validity o f demeanour

evidence in assessi ng witness credibi lity’ (1993) 72 Nebraska L Rev 1157 at 1158

and JA Simon-Kerr ‘Un masking demea nor’ (2020) 88 George Wash L Re v Arguendo

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 Apri l

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 memor y and demeanor trap: W hat every judge needs t o know about

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

The author notes that: ‘…appellate cour ts overtur n credibilit y determin ations 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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