Introduction
Do witnesses, like miracles, have to be seen to be believed?… It appears so obvious that it scarcely requires justification. But how far does the way in which a witness gives their evidence really affect the credibility of its content?
Over the years, “demeanour evidence” plays a crucial role in assessing a witness’s credibility. It is assumed that the way someone tells their story including their voice, facial expressions, physical gestures and the promptness of their answers furnishes valuable clues as to whether they are telling the truth or not. Research reveals that adjudicators often perceive confidence as a strong indicator of the accuracy of statements uttered by the witness and thus leads to such testimonies being believable than those who appear timid. Admittedly, the tendency to draw wrong or false inferences based on demeanour remains a great concern. Modern justice delivery has quietly displaced a major part of the action in the witness box due to the heavy reliance on witness statements adopted as evidence in chief and affidavits. More so, the adoption of virtual hearings has altered the way testimony is taken, characterized by witnesses with a pixelated face on lagging screens or voices stripped of body language. Overall, the suspicion has always been that demeanour has the strong tendency to lead astray whilst searching for the truth. As the saying goes, “looks can be deceiving” for which reason the caution is given; “do not judge according to appearances.” This essay examines whether demeanour survives as a legitimate tool of fact-finding in Ghana’s courts and asks if the era of written testimony and virtual hearings should finally force the retirement of the fiction that judges can see lies.
Demeanour Evidence and Justice Delivery
Demeanour evidence refers to the non-verbal cues given by a witness while testifying, including voice tone, facial expressions, body language and other cues such as the manner of testifying and the witnesses’ attitude while testifying. It has been the case that witnesses who are judged reliable and credible are believed whilst those who are not so judged might as well have not testified for the side who called them. In cases where facts are hotly contested, verdicts can turn on who is believed to be telling the truth and who is not. For a long time, our legal system has operated under the belief that a witness’s demeanour is probative of his truthfulness. Demeanour is thought to be so illuminating such that live testimony, “subject” to cross-examination, is regarded as the paradigm of acceptable evidence. Appellate courts will not usually overturn findings of fact made by trial courts that have had the advantage of heeding witnesses’ tone of voice, inflections, mannerism and body language as they testified.
Section 80(2) of the Evidence Act, 1975 (NRCD 323) provides a list of attributes that a trial judge may use in assessing the credibility of a witness. It provides that the matters which may be relevant to the determination of the credibility of the witness include, but not limited to “the demeanour of the witness…” In the case of Republic v Stephen Kwabena Opuni and 2 Others, Criminal Appeal No. J3/01/2024, the Supreme Court emphasized that demeanour is not the only factor but one of many other factors taken into consideration by the courts under section 80 of NRCD 323 in assessing the credibility of a witness. The court also stated that such assessment is not mandatory but discretionary, something that the judge or trier of fact may decide to or not to take into consideration.
In face-to-face testimony, it allows the trier of fact to discern the demeanour of witnesses in order to make a determination on whether to believe the testimony of that witness or not. In the case of Ackom v The Republic [1974) 2 GLR 419-427, the Court stated that the question of credibility and demeanour of a witness is one that is within the preserve of the trial court. The court stated that the judge may test the impression and demeanour of a witness against the whole evidence of that witness and is entitled to adopt that impression as the basis of the decision. The court stated that it would not be open to an appellate court to question the opinion of the trial court as to the demeanour of the witness. The jurisprudence of the Superior Courts as stated in Mansah and Another v Donkor [1980] GLR 825-833, however, was that the court must furnish reasons for its decision to act upon impressions in observing the demeanour of a witness. The court cannot merely reject or accept the testimony of a witness based on observing the witness’s demeanour upon a reason that was unexpressed.
Approaching demeanour with caution in an era of written testimony and virtual hearings
Courts have recognized that reliance on demeanour must be approached with caution. Demeanour is not infallible and should not be used as the sole determinant of credibility. The Superior Courts have stated that in recent times hardly does the demeanour of a witness play a significant role when evaluating the credibility of witnesses. Though important, the courts rely more on reliable criteria such as documentary evidence, the testimony of disinterested witnesses, the implausibility or otherwise of narrations given in court, etc. In the cases of Charles Lawrence v Ahmed Danawi, Civil Appeal No. J4/63/2014 and Awudome (Tsito) Stool v Peki Stool [2009] SC GLR 681, the Courts stated that conclusions arrived at based on observations of the demeanour of parties and witnesses is not always tenable. The reason was that the effluxion of time my cause memories to fade, wane or totally forgotten and, in that event, there can be no legitimate reliance on demeanour which cannot be recollected. Similarly, in the case of Agyemang (Substituted) by Banahene and Others v Anane [2013-2014] 1 SCGLR 241, the Court stated that witness demeanour is no longer a pivotal consideration for assessing witness credibility since courts are more inclined to employ robust methods to assess credibility such as evidence-based evaluation and expert testimony, leading to a shift towards more comprehensive and objective evaluation methods. Courts must thus exercise caution when using demeanour as the sole basis for assessing witness credibility, especially in the era of virtual hearings and written testimony where technology, cultural norms and disembodiment distort traditional cues, risking misjudgements that undermine justice.
Conclusion
In conclusion, the bench’s eyes were never infallible, but written testimony and virtual hearings have exposed their limits. When witnesses testify through witness statements, affidavits or flickering screens, demeanour becomes a mirage – distorted by technology, culture and distance. To anchor credibility solely on averted webcams or cold transcripts risks substituting judicial instinct for judicial insight. Ghanaian courts must therefore recalibrate: demeanour may supplement, but should never supplant the hard discipline of weighing consistency, probability and corroboration. In this new era, justice demands that we judge less by how witnesses look, and more by what their evidence withstands.
God bless!
