postimage

    11:12 AM Ms Pulara Somachandra (Trainee Research Associate, SMU Centre for Commercial Law in Asia)

    Herbert Smith Freehills-SMU Asian Arbitration Lecture 2021 - Witnesses and Webcams: The Psychology of Witness Evidence in a Virtual World

        

    On 23 November 2021, Herbert Smith Freehills (HSF) and the SMU Centre for Commercial Law in Asia hosted the Herbert Smith Freehills-SMU Asian Arbitration Lecture for the 12th year running. The virtual lecture drew more than 250 participants from over 20 jurisdictions.

    The opening remarks were delivered by Ms Gitta Satryani (Partner, HSF) and Associate Professor Pasha Hsieh (Associate Dean (Faculty Matters & Research), SMU Yong Pung How School of Law). Following that, Dr Ula Cartwright-Finch (Managing Director, Cortex Capital), one of the world’s leading authorities on psychological factors in virtual hearings, delivered her lecture entitled ‘Witnesses and Webcams: The Psychology of Witness Evidence in a Virtual World’, in which she dissected how the virtual environment impacts the way we perceive other people (especially witnesses and their credibility) and how the different factors in the virtual environment change baseline behaviours and give rise to unethical conduct on the virtual stand.

    Virtual Environment

    Dr Cartwright-Finch shared that there are two schools of thought regarding virtual hearings: the optimists and the pessimists. Optimists appreciate close-ups of a witness’s face which allow the parties involved to see another’s face more microscopically than in in-person hearings and thereby potentially detect micro expressions which betray our true emotions. The pessimist, on the other hand, does not appreciate the loss in body language that would otherwise be apparent in a physical hearing. However, she warned against relying on these cues as even professionals who are highly trained in legal settings only have a hit rate of approximately 65% in successfully detecting lies.

    There is no unified behavioural cue to indicate lying and several factors make detecting deception even harder – such as unfamiliarity between the liar and the recipient, the liar’s ability to anticipate the situations to lie, the liar and recipient coming from different backgrounds, and when there is no punishment for the lie. Furthermore, research also shows that people are perceived as more truthful if their evidence is more vivid, or if online testimony is delivered using higher quality streaming.

    Baseline Behaviour

    Dr Cartwright-Finch then explained how most courts and hearing rooms are deliberately designed to solicit reverence, elaborating that the atmosphere in the room gives you an idea of the weight of the matter and allows for witnesses to emulate others when unsure of the expected decorum in Court.

    Moving online, Dr Cartwright-Finch discussed 3 key factors affecting witness behaviour – social disinhibition, social conformity and how people behave differently when they feel that they are being watched. Drawing on past experiments and their outcomes, Dr Cartwright-Finch unravelled how various forms of the ‘watching eye’ effect impacted people’s actions and discussed how these findings may (or may not) translate to an online hearing context, highlighting that the (small) size of the screen makes it harder to emulate a sense of being watched.

    Unethical Conduct

    Finally, Dr Cartwright-Finch discussed the fraud triangle and some newer research investigating the factors that increase and decrease people’s tendency to cheat.

    The fraud triangle explains how 3 elements – opportunity, motivation, and rationalisation – can come together to lead to fraudulent behaviour while the newer research divulges the social factors that increase unethical behaviours. Research studies have found increased instances of cheating when there was greater perceived psychological distance between the unethical behaviour and the ultimate reward, which Dr Cartwright-Finch shared was similar to the rationalisation feature of the fraud triangle.

    The lecture was followed by an insightful panel discussion between Mr Cavinder Bull, SC (CEO, Drew & Napier), Assistant Professor Dorcas Quek Anderson (Associate Dean (Student, Staff & Alumni Matters), SMU Yong Pung How School of Law), and Dr Cartwright-Finch which was brilliantly moderated by Mr Alastair Henderson (Managing Partner (Southeast Asia), HSF). The panellists each shared the challenges they had encountered in dealing with remote witness testimony, ways to introduce ethical nudges into arbitral proceedings to discourage unethical conduct, and the implications of psychological research on other dispute resolution processes including litigation and mediation.

     

    * This blog entry may be cited as Pulara Somachandra, “Herbert Smith Freehills-SMU Asian Arbitration Lecture 2021 – ‘Witnesses and Webcams: The Psychology of Witness Evidence in a Virtual World’”  (14 January 2022) (http://www.singaporelawblog.sg/blog/article/278)

     

Comment Section