Before We Get To The Waterboarding

A standing joke among criminal defense lawyers is the perspicacity of arresting officers in finding probable cause to search a truck or car for contraband.

"I suspected he was carrying drugs, because he would not look at me and the guilty avert their eyes." Or, "I suspected he was carrying drugs, because he looked right at me and that is what drug dealers do to avoid suspicion."

"He acted nervous." Or, "He acted too calm for someone who had been stopped by the police."

And the one I like: "He only had one key with him, and that is typical of drug dealers." The first time I heard that I was in the courtroom with only one key with me.

Many officers clearly have better noses than bloodhounds:

"I smelled the strong odor of burning marihuana." And, "I smelled the distinctive odor of wet marihuana."

And another favorite. "The car was empty, but I could tell it had been abandoned because of the smell of illegal aliens." I prepared a cross-examination on this to test the officer's nose on distinguishing between an illegal alien or a permanent resident or merely a laser passing card. Also, I thought it would be instructive if his nose could tell whether it was a Mexican illegal alien or a Central American illegal alien who might have a right to sanctuary claims.

At border crossings, a similar phenomena occurs in the claimed ability of the agents to tell a truth teller from a liar.

The typical statement: "No, I didn't know there were ten kilos of cocaine welded into the gas tank of the car I was driving."

The feds do not audiotape or videotape interviews, so there is always a dispute about what was actually said. If two officers are present, their versions will differ slightly. And then the accused will have a different version. And then there will be a dispute about what was written down and when. And how it should have been translated and if the officer actually understood.

The officer at trial will want to testify, "He hesitated and then stammered in his response, and moved his hand in a characteristic evasive manner, so in my experience, I could tell he was lying."

Just like the movie in which the prospective father in law claimed he was a human lie detector machine.

The inquiry to come, si Dios quiere, Readers True, is whether a lie detector machine or a lie detector person can really tell if someone is lying. This is of interest to me, naturally, because if you can tell when someone is lying I want to be able to do it for the purposes of judging a witness If the claim is just hogwash, I want to be able to show that during cross-examination.

In truth, I don't want to know if my friends are trying to protect me from an ugly truth, so I have no desire to apply the skill in personal life.

However, if a Javert or a Flambeau or a Monk can read the liar, it would be nice to find out. On the other hand, how do we distinguish that officer from Barney Fife and Fearless Fosdick when they come to testify?

For those among you who sit on the front row and raise your hand to be recognized, I offer the following texts in preparation for these (occasional and intermittent) sessions:

The Expression of the Emotions in Man and Animals by Charles Darwin.
Interrogations, Confessions, and Entrapment edited by G. Daniel Lassiter.
Never be Lied to Again by David J. Lieberman.
Principles of Kinesic Interview and Interrogation by Stan B. Walters.
What the Face Reveals edited by Paul Ekman and Erika L. Rosenberg.