Episode #42 – Role of Emotion in Witness Deposition Testimony

In this podcast, CSI Litigation Consultant Dr. Bill Kanasky discusses the destructive role that emotion can play in witness deposition testimony. Emotion kills cognition and sends witnesses into a fight or flight response (the amygdala hijack). Dr. Kanasky shows examples of emotional witnesses and discusses how Courtroom Sciences’s experts use neurocognitive training to prepare witnesses to stay calm during testimony, leading to better answers and better deposition testimony.

Full Episode Transcript

[00:05] Bill
Litigation Psychology Podcast, brought to you by Courtroom Sciences. I am Dr. Bill Kanasky. Today we’re going to talk about the role of emotion in witness testimony, particularly deposition testimony. Emotion is bad. Emotion kills cognition, meaning when your witness gets emotional, they go into the fight or flight response pattern, which pretty much shuts down cognition, and your witness starts to say crazy, crazy things. Things that you never prepped for in the prep sessions, because they’ve lost their minds. And when I say lost their minds, they’ve lost that important part of their mind, that prefrontal cortex. And instead, they’re going into that what we call amygdala hijack, where the amygdala and hippocampus take over, and that’s where you get your fight or your flight. So your fight is when they start to argue, right, become defensive and argue. And the flight is when they just start yapping away to say anything to get out of that chair. So let’s go to the videotape and get some examples of this for you, and show you how bad this can be. Because remember, this stuff can be played in front of a jury, and if it does, it’s going to look terrible, and it’s going to kill your witness’s credibility, is really the problem here.

[01:21] Bill
Now just, let’s just start here. Look at this guy. Look at the posture. Look at the posture. He’s got the tie undone, leaning forward. Looks like he wants to throw down, uh, in the back alley right now. This guy wants to fight. He’s not happy being deposed, but he’s on videotape. You do this in front of a jury, you’re screwed, right? But even in a deposition, this makes the dep look very bad, which could eventually be played in the jury. Let’s watch what happens

[01:45] Video

“Regarding the one at, um, the freeway liquors. It wasn’t freeway liquors, it was, um, well, I-40 and second street. Um,”

“Why are we getting into this?”

“It’s part, just part of the deposition, Mr. Perry, okay? Did you drive there or were you driven?”

“I drove there, okay. Is this for your blog site?”

“My blog site?”

“Well, the site that you’re frequently referenced on?”

 “What site is that?”

“I think it’s called I on Albuquerque.”

“As a solo practitioner, do you think I have time to mess around with blog sites?”

“I don’t know.”

[02:22] Bill
Okay so that’s awful. So if you’re the defense attorney, and I think there is a defense attorney sitting right next to him who is absolutely useless, by the way, he should have grabbed him, got him out of the room to try to calm him down. The problem, once that fight or flight takes off, it’s a neurochemical response. It’s almost impossible to stop. Now here’s the good news, it’s 100 percent preventable with neurocognitive witness training, which is what I do. I have a system to put these witnesses through to unplug those emotional why and make sure that this witness is going to come across as professional and calm the whole time. And if they stay calm, they’re going to remain logical. If they remain logical, they’re going to be able to answer the questions effectively. And so let’s go to a famous, let’s go to one everybody knows, Roger Stone, right, villain, uh. His, his dep. Well again, I’m just going to let this go, but again, none of this stuff was part of his preparation. Absolutely loses his mind.

[03:18] Video

“Two and two equals four, doesn’t it? Is that a saying?”

“Well no, no, proof, evidence Larry, evidence proof Larry, evidence, not not guessing on your part with nothing. You have nothing. This proves nothing.”

“That’s what you told Mueller, right? You had nothing. That’s what your clients argued.”

 “I’m not going to discuss the criminal case. If you want to keep insulting me, this will be over and you can run back to the judge like a little –.”

“I’m not insulting you. I’m doing what?”

“If you want to keep insulting me, I will just end this. You can go running back to the judge.”

“Did you just call me a –?

“You’re acting like one.”

[03:53] Bill
Oh wow, wow, wow, wow, wow. That was an extreme example, but what, what the hell is going on here? Well let’s, let’s look at this slide. So again, it’s all right here. It’s all prefrontal cortex, people, right? What we’re talking about is the prefrontal cortex, three parts, dorsolateral and tingling, uh, anterior cingulate, uh, ventral medial prefrontal cortex. This is the part of the brain that’s the rational, you know, judgment, uh, logical part of the brain. But this is where the witness preparation data stored, meaning all that work that you’re doing with your witness, this is the part of the brain where that information is going to be stored, right? And if they use that part of the brain, we have logical responses, and that’s what that, that’s effective witness training one-on-one. We want logical responses, and that amygdala and hippocampus circuits disabled, because the prefrontal cortex has taken over the system, right? But here’s where the trouble comes in, amygdala hijack. The subcortical structures of the amygdala and the hippocampus, they take over, and now the prefrontal cortex shuts down, meaning the area of the brain in which all your data storage is in from the witness prep is now shut down, and the witness can’t access it. And this is where your witness starts to say really, really crazy things, because it’s a neurochemical response, and they go into fight or flight response patterns, and then it’s all over but the crying at that point.

[05:01] Bill
So you can’t just tell your witnesses to be calm. Much of what we do at Courtroom Sciences, and what I do as a clinical neuropsychologist, is we have a training program to run the witnesses through to help modulate their emotions, to help disable that amygdala and hippocampal circuitry so that fight or flight response patterns don’t take over, that neurochemical response never happens, and then your witness is going to stay calm the whole time. They’re going to remain logical. They’re going to give effective answers, and they’re going to get through the deposition, and guess what, they’re going to look great. They’re going to look professional on video. Thank you for joining us today on the Litigation Psychology Podcast.