PART II: Characteristics for Improving the Credibility of Your Witness: Undesirable Non-Verbal Witness Characteristics

In our previous issue of Insights, we discussed how the ways in which witnesses answer questions and utilize speech patterns (e.g., using powerless vs. powerful speech, vocal distracters), could negatively affect jurors’ evaluations.  In this issue, we explore what jurors have told us adversely affects a witness’s credibility with respect to a witness’s non-verbal habits.  We will see that a witness’s demeanor (e.g., lack of eye contact, fidgety behavior, attitude about testifying) can negatively impact his/her ability to persuade a jury.

»Communicating Not Wanting to Be There = Hiding Something. If a witness is perceived, via his/her demeanor and/or vocal cues, as “not wanting to be there,” jurors interpret this message as the witness trying to hide something.  Some of these behaviors include being unemotional (i.e., a flat affect) and not appearing to be interested in the subject matter or seriousness of the proceedings.  Jurors’ rationales include the following:  “If the witness had nothing to hide [for the company], he should not mind answering the questions.”  It will be beneficial for your witnesses to understand how astute jurors can be with regard to reading this type of non-verbal communication and, in turn, to assist the witnesses in correcting this inadvertent, often unconscious behavior.

»Inconsistency between Direct and Cross-Examination Behavior. Jurors have told us, in many post-verdict interviews as well as during the witness evaluations at our jury research projects, that a witness loses credibility when his/her demeanor changes on cross-examination.  For instance, several jurors noticed a change in a witness’s demeanor such that she was upbeat and helpful on direct, but became “flippant,” “curt” and “snotty” during cross.  Her primary message was discounted as jurors believed she was hiding something given her change in behavior during cross.  With that said, it will be important for all of your client’s witnesses to engage a “sugar not vinegar” demeanor for their entire testimony, as well as to identify what triggers a witness’s demeanor shift in order to work on presenting consistent testimony during both direct and cross-examination.  Doing a “dry run” of those expected tough cross-examination questions not only prepares a witness in terms of content but also in terms of demeanor (i.e., s/he should feel more comfortable and remain consistent in demeanor during cross-examination at trial).

»Distracting Non-Verbal Behaviors.  Academic research has shown that, in general, people are not good at identifying when someone is lying.  Non-verbal cues most frequently associated with nervousness (e.g., wringing of hands, blinking excessively or fast, hedging when talking) are often misidentified and, in turn, the person engaging in these behaviors is perceived as lying or evasive.  It is important to be familiar with these behaviors and to make your witnesses more self-aware in order to reduce these often unconscious tendencies.

»Other Behaviors.  Some other behaviors that can affect whether a witness is viewed as being untruthful, evasive or defensive are:

        • Rapid blinking;
        • Witness needs to buy some time to think about his/her answer by cleaning glasses, fidgeting with documents, taking a drink of water;
        • Failure to maintain eye contact, looking around while speaking;
        • Any grooming of the body (e.g., scratching your arm, wringing hands, playing with hair, rubbing leg);
        • Rocking back and forth in chair, shifting position while talking, or pushed back in chair;
        • Mumbling, talking in a low voice that is difficult to hear; and
        • Arms crossed, hand over the mouth

»Eye Contact.  Eye contact is important for jurors when judging a witness’s credibility.  A majority of jurors have commented that if a witness does not make eye contact with the questioner or the camera, then the witness must be “hiding” something.

        • One of the downsides to a video deposition is the camera’s angle/focus on the witness.  The typical view does not provide jurors the context of other people in the room with the witness, and it fails to show possible distractions occurring off-camera.  Moreover, videotaped depositions can distort the perception of where a witness is looking.  A witness who appears not to be looking at the questioner typically receives low believability ratings.  A skillful opposing counsel can adjust the seating and camera set-up to make it appear the witness is not giving eye contact to the questioner, who is always off camera.  When setting up video depositions, counsel should be an active participant in seating and camera arrangements so it is clear that the witness is facing the questioner.
        • In addition, a witness who is facing the camera directly and frequently “looks off camera” gives the appearance that s/he is “unsure” of his/her answers and, worse yet, is seeking approval from counsel outside of the camera’s view.

»Nervous Behavior.  Sometimes, witnesses are so nervous that this emotion gets channeled into behaviors such as becoming overly smiley, laughing or being giddy.  For one corporate witness who engaged in this behavior, jurors believed she would appear “more professional if she would not laugh during her testimony.”  Her giddiness undercut her credibility for jurors who, again, believed she was not only nervous, but unsure of herself and her answers.

»Appearance.  There are many components of credibility and appearance, one such factor, can have a profound effect.  As one juror stated about a research scientist who was wearing a short-sleeved polo shirt during his deposition, “He looked like a used-car salesman, not a doctor.  He did not look educated.”  As a result, jurors who held this point of view found the witness’s testimony to be “disorganized” and “unprofessional.”  In addition, they did not believe he was well-spoken, as he tended to “lose his train of thought at times.”  While a relaxed, casual dress for a deposition may seem appropriate, consideration of the witness’s role (e.g., doctor, professional) should be given consideration first, as the incorrect choice of dress can affect jurors’ perception of the witness’s credibility and, more importantly, the believability of his/her message.

»Tone of Voice.  Jurors are attuned to a witness’s tone of voice and are critical of witnesses who sound arrogant or condescending.  In one example involving a corporate research scientist, jurors noted that his tone of voice and the manner in which he spoke (e.g., proud to discuss his study, provided long-winded answers) caused him to come across as a “know-it-all” or stated another way, “He was smarter than everyone else in the room.”  As another juror said, “He was so sure of what he knew, he knew more than anyone else.”  His “arrogant” and “cocky” demeanor severely undercut any impression he may have made as a knowledgeable witness on the particular subject matter.

These findings reinforce the message for this series of Insights:  While having the most knowledgeable and/or credentialed witness on your side is ideal, your case may be in jeopardy if the witness is unable to overcome these undesirable characteristics.  In the next installment of this series, we will discuss positive characteristics for your witnesses to emulate.

Li_Hair_CircleImageMerrieJoBy: Merrie Jo Pitera, Ph.D., CEO