Best Practices for Trial Testimony - Part 2

Witness Testimony that Tips the Scales - Part 2 of 2

George R. Speckart, Ph.D.

In part one of this topic, we discussed the perspective that jurors come into a trial setting plus some of the thinking that jurors go through as they consider and evaluate witness testimony. In the second part of this article, we cover the importance of witnesses making an emotional connection with the jury and the concept of pre-liking. 

Making an Emotional Connection 

In our training sessions, we instruct witnesses that over 90% of the message that they impart is nonverbal (facial expressions, vocal intonation, speech volume and speech rate, postural cues, body language, mannerisms, eye contact, and the like.) This figure comes from many years of research by psychologists using statistical methods to separate out the components of communicative influences. Moreover, it is entirely consistent with the preceding discussion: Since nonverbal behavior is almost entirely connotative (affective) in nature, it tends to dominate the message, and subjugate the verbal portion to a more secondary status.

Obviously, positive nonverbal behavior – smiling – is imperative. But witnesses sometimes ask, “I know I need to make eye contact with the jury, but how often should I look at them?” Frequently witnesses are searching for quantitative guidelines on how often to shift one’s gaze into the jury box: Once every 5 seconds? Once for each question? Clearly having a witness count seconds each time he or she is “supposed to look” is not going to work: A witness needs to be listening to the questions and cannot be counting as such.

Instead, we instruct witnesses as follows: If you care that they understand – really care – then you will naturally engage in all of the optimal nonverbal behaviors required to truly teach jurors and assist their comprehension. When you are in teaching mode, you will not have to count the number of times that you are supposed to make eye contact -- it will happen naturally because you sincerely care whether they truly understand your message -- and when it happens naturally, it is far superior to making a conscious effort based on some formula. The reason, of course, is that if you care, it will become apparent through other nonverbal domains than simply the number of instances of eye contact. It will emanate from vocal intonation, smiles, gestures, and so on.

You will make an emotional connection with jurors because they will know that you care that they truly understand your testimony.

Pre-liking and Compassion

A brilliant counselor (Summer McStravick, has coined the term “pre-liking” to describe how best to approach and engage an audience. The concept is simple, yet profound: decide ahead of time that you like them – really like them. Some witnesses quickly embrace this concept, but many others express skepticism and ask, “How am I going to do that?”

Prior to a performance, actors often prepare to make an emotional connection with their audience by meditating about who the people in the audience might be, and what they may want from the character the actor is playing. This has the effect of humanizing the audience in the mind of the actor and clarifying the purpose of the actor’s performance as meeting the desires of the audience. These meditations raise the emotional content of the actor’s performance beyond what can be achieved if the actor’s focus is solely on their own personal performance desires.

Counsel should encourage their witnesses to engage in a similar meditation prior to their testimony. Counsel can begin the process by discussing what is known of the jurors themselves. Who are these jurors? Are they parents? Students? Old? Young? What are their hobbies? What do they read? Next, counsel should help the witness to see things from a juror perspective. What sacrifices might these jurors be making to fulfill their jury duty? Might they have financial problems? Health problems? Most critically, the witness needs to understand that the vast majority of jurors are good people who simply want to make a just and fair decision but feel ill-equipped to do so. They are suspicious of both sides and primarily just looking for someone they can trust.

For witnesses to be able to make an emotional connection with the jury they need to move away from seeing the jury as a group of strangers sitting in judgment, and toward actually liking the jurors, which can only come through empathizing with jurors’ hopes and fears. By encouraging the witness to connect with the juror experience and the anxiety jurors feel upon taking their own oath, the witness will begin to feel compassion for the challenges the jurors face and will naturally view their role as a witness in terms of helping and teaching, rather than in terms of persuading or swaying. Jurors can and do sense the difference.

Pre-liking results in compassion, and compassion is a foundation for trust and truly memorable testimony. We caution that pre-liking is not easy for some witnesses, and that even those who successfully develop a pre-liking for the jury are still at risk for forgetting the jury altogether once they are on the stand, focusing instead on their own concerns, and the attorney who is asking questions. Ensuring that witnesses remember that their true audience is the jury requires repeated practice and persistent reminders: It is all for the jury. The jurors have the only votes. You will never convince the attorney of anything. Everything is for the jury. Treat the jury as you would treat a friend in need, and they will never forget you.

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