Lying childIn his February, 2016 TED talk, developmental researcher Kang Lee tells us that adults cannot tell whether children are lying.

As part of his research, Dr. Lee asked children to guess the numbers on two face-down cards. The children were told that if could do that, they would get a big prize. In the middle of the game with a child, the monitor leaves the room, telling the child not to peek at the cards. Hidden cameras record the actions.

More than 90 percent of children will peek as soon as the proctor leaves the room. The more important question for Dr. Lee was when the proctor returned, would the child confess or lie about cheating? By age 4 and up, at least 80% of the children lie.

However, Dr. Lee also wanted to know if we, adults, can tell when a child is lying or telling the truth. Dr. Lee played videos of these types of games for many, many adults from all walks of life. In half of the videos, the children lied. In the other half of the videos, the children told the truth. Recognizing that if the adults guessed randomly, there would be a 50% chance of them being right, an adult whose accuracy was around 50% was a terrible detector of children’s lies.

Spoiler Alert (although the title of this blog post gives it away): Please watch the video before proceeding.

According to Dr. Kang’s research, adults cannot tell whether children are lying or not; not college or law students, social workers, child-protection lawyers, judges, police officers, not even their own parents. They all do little better or worse than pure chance.

Detect Lies

During custody proceedings, children are sheltered from the adversarial process. They may be interviewed by Child Protective Services, or the forensic examiner, or their appointed Attorney for the Children. Those interviews are of done, understandably, in absence of their own parents. Moreover, when a judge interviews the child, in what is known as a Lincoln hearing, it is in chambers, with a court reporter (producing a sealed transcript) and the child’s attorney, but not the parents, nor their lawyers.

Legal scholar, John Henry Wigmore, known for his 1904 treatise on evidence, stated:

Cross-examination is the greatest legal engine ever invented for the discovery of truth.

If Dr. Lee is correct that we cannot tell when children lie, should custody decisions based, in part, on the statements of children, be made without the legal system’s greatest tool for find the truth – cross-examination?

Of course, we want to minimize the likelihood that the custody process, itself, will hurt our children. However, with this research that we are really very poor at determining when children are telling the truth, how can we hold back our greatest truth-determining tool, cross-examination?

Now for the rest of Dr. Lee’s story. There is now technology that has an 85% success rate in telling when a child is lying, “transdermal optical imaging.” It is based on the fact that when different emotions are experienced, the blood flow under our facial skin changes subtly, and beyond our conscious control. Using transdermal optical imaging, the hidden emotions associated with lying can be detected.

I am sure that it is a series of one giant leap after another to go from telling whether a child lied when asked did he peek, to critiquing hours of interviews of a child about preferences, relationships, or abuse. Custody determinations are not made without a lot of other evidence to corroborate or refute the statements of children. Nonetheless, if there is technology that can assist in determining whether a child has been abused by a parent, or is being “alienated,” shouldn’t we use it, or at least test it responsibly.

On the other hand, Dr. Lee’s research is one more piece of evidence that custody determinations should not be resolved through litigation. It is one more call for using the interdisciplinary approach of Collaborative Divorce, where at every stage parents are being helped to transition through divorce. It is by far the best process, perhaps the only divorce process that can help parents get through their anger and pain, enhance their communication skills and ability to co-parent, and reach by agreement the decisions on how their children will continue to be raised.