It鈥檚 a hotly debated question in the legal community, as the courts decide whether a Toronto sexual assault complainant will be allowed to wear a niqab while testifying.

, adjunct professor in 91亚色鈥檚 , also practises criminal law. 鈥淚t鈥檚 dangerous to rely on demeanour alone,鈥� he says, especially if there are cultural differences involved. We tend to overestimate our ability to detect lies through facial cues, he says.

Litkowski cites a 2007 case from the Ontario Court of Appeal, in which 鈥渁 conviction was overturned because the trial judge failed to take into account cultural differences that affect demeanour.鈥� Namely, eye contact. The judge mistook a lack of eye contact for the passivity of the witness, who was born and raised in Sudan, where eye contact is perceived differently.

Instincts can be an occupational hazard of the legal profession and have led to wrongful convictions. 鈥淢ost trial lawyers have faith in their ability to take note of physical cues they perceive as they give evidence,鈥� Litkowski says.

The complete article is posted on the .

Posted by Elizabeth Monier-Williams, research communications officer, with files courtesy of YFile鈥� 91亚色鈥檚 daily e-bulletin.

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鈥淚t is the honest, but mistaken, eyewitness who creates the real challenge for the [justice] system,鈥� said James Stribopoulos of 91亚色鈥檚, in The Globe and Mail who was wrongfully convicted of robbery and forcible confinement in 2008. Stribopoulos said eyewitnesses usually appear sincere, making their testimony compelling, yet their evidence can all too often 鈥渂e inherently flawed and completely unreliable.鈥�

Stribopoulos praised the fact that trial judges now routinely issue warnings to juries about the frailties of eyewitness testimony, but he said the next step must be a prohibition on all in-court identifications. 鈥淭hat sort of identification evidence is really worthless,鈥� he said. 鈥淎ppellate courts have recognized it as such, but there is still a puzzling reluctance to exclude it from evidence.鈥�

teaches Criminal Procedure and Evidence in Osgoode's JD Program, while also serving as director of the Intensive Program in Criminal Law and as co-director of the Part-Time LLM Program Specializing in Criminal Law. In the past, he has served as director of Clinical Education at the Law School and as editor-in-chief of the faculty's blog, .

Posted by Elizabeth Monier-Williams, with files courtesy of .

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