When it comes to assessing someone’s sincerity, we pay close attention to what people say and how they say it. This is because the emotion-based elements of communication are understood as partially controllable and partially uncontrollable. The words that people use tend to be viewed as relatively controllable; in contrast, rate of speech, tone of voice, hesitations, and gestures (paralinguistic elements) have tended to be viewed as less controllable. As a result of the perception of speakers’ lack of control over them, the meanings conveyed via paralinguistic channels have tended to be understood as providing more reliable evidence of a speaker’s inner state.
Paradoxically, the very elements that are viewed as so reliable are consistent with multiple meanings. Furthermore, people often believe that their reading of another person’s demeanor is the correct one. Many studies have shown that people – judges included – are notoriously bad at assessing the meaning of another person’s affective display. Moreover, some research suggests that people are worse at this when the ethnic background of the speaker differs from their own – not an uncommon situation when defendants address federal judges, even in 2014.
The element of defendants’ demeanor is not only problematic for judges; it is also problematic for the record of the proceedings. This is due to courtroom reporters’ practice of reporting the words that are spoken and excluding input from paralinguistic channels.
I observed one case in which this practice had the potential for undermining the integrity of the sentencing hearing transcript. In this case, the defendant lost her composure while making her statement to the court. The short, sob-filled “sorry” she produced mid-way through her statement was (from my perspective) clearly intended to refer to her preceding tears and the delays in her speech. The official transcript, however, made no reference to the defendant’s outburst of emotion, thereby making her “sorry” difficult to understand. Without the clarifying information about what was going on at the time – namely, the defendant’s crying — her “sorry” could conceivably be read as part of her apology to the court for her crime of robbing a bank.
Not distinguishing between apologies for the crime and apologies for a problem with delivery of one’s statement is a problem in the context of a sentencing hearing because apologies for crimes are understood as an admission of guilt. If the defendant had not already apologized earlier, the ambiguity of the defendant’s words could have significant legal ramifications if she sought to appeal her sentence or to claim that her guilty plea was illegal.
As the above example illustrates, the exclusion of meaning that comes from paralinguistic channels can result in misleading and inaccurate transcripts. (This is one reason why more and more police departments are video-recording confessions and witness statements.) If a written record is to be made of a proceeding, it should preserve the significant paralinguistic elements of communication. (Following the approach advocated by Du Bois 2006, one can do this with varying amounts of detail. For example, the beginning and ending of crying-while-talking can be indicated with double angled brackets, e.g., < < sorry > >.) Relatedly, if a judge is going to use elements of a defendant’s demeanor in court to increase a sentence, the judge should be prepared to defend this decision and cite the evidence that was employed. Just as a judge’s decision based on the facts of the case can be challenged, a decision based on demeanor evidence deserves the same scrutiny.