Common Witness Testimony Errors and Why They Happen

CSI - Courtroom Sciences Inc.

Properly preparing witnesses for their testimony is crucial to ensure positive outcomes. As witness performance can significantly impact settlements, verdict results, and damage awards, the most effective way to avoid potentially devastating psychological mistakes is to provide your witness with sophisticated neurocognitive training. 

Witnesses who have been fully trained and prepped are able to recognize and avoid these four common psychological causes of witness testimony errors.

How can you minimize witness testimony errors?

Defense attorneys can help mitigate risk and achieve superior results by avoiding four common psychological causes of witness testimony errors, including Yerkes-Dodson Law, the Dunning-Kruger effect, evaluation apprehension, and “thin-slicing."

Error #1: The Yorkes-Dodson Law of Arousal-Performance

The Yerkes-Dodson Law highlights the relationship between performance and arousal. It suggests that while increased arousal can enhance performance up to a certain point, excessive arousal can lead to a decline in performance. 

When it comes to witnesses, this concept can have significant implications. On one end of the spectrum, some witnesses feel overly confident and comfortable during depositions because they have been deposed multiple times. They assume that the rules that typically apply to inexperienced witnesses don't apply to them. As a result, they tend to provide long-winded, rambling explanations. Their lack of anxiety leads to poor testimony performance.

However, on the other end of the spectrum, some first-time witnesses are overwhelmed by anxiety. They worry about providing the "perfect" answer and overthink their responses, leading to subpar answers.

When working with witnesses to address these issues, it is important to help them balance their arousal levels. Mock questioning can be effective in providing witnesses with a safe space to experience anxiety, allowing them to perform at their peak during actual depositions.

Error #2: The Dunning-Kruger Effect Causing Overestimation of Abilities

The Dunning-Kruger Effect is a cognitive bias where individuals overestimate their abilities, particularly when they lack experience in a specific area. Individuals who are inexperienced in an area often believe they are more capable than they truly are because they lack the knowledge to recognize their own incompetence.

This concept becomes particularly essential when working with witnesses who claim they would never exhibit certain behaviors during depositions. For instance, witnesses might assert they would never become emotional or argumentative. However, when tested in mock questions, they often do precisely what they claimed they wouldn’t.

One key method for addressing this issue is to guide witnesses to understand that their overconfidence might not align with reality. Witnesses may become more receptive to the necessary training and guidance by pointing out their missteps during mock examinations.

Error #3: Evaluation Apprehension

Evaluation apprehension is a common human tendency causing individuals to fear being evaluated or judged, and it is particularly prevalent when it comes to public speaking. People often worry about whether their audience will perceive them as credible, knowledgeable, or likable.

Witnesses often experience similar apprehension during depositions, fearing delivering answers that opposing counsel won't like. This fear can lead to witnesses offering answers they believe will please opposing counsel, even if those answers aren't truthful or beneficial to their case.

Witnesses need to understand that it is acceptable to feel apprehension during depositions. Defense attorneys can help by emphasizing that opposing counsel's opinion of their answers is not the measure of their credibility. This mindset is important to help witnesses stay focused on providing honest and accurate responses without succumbing to the fear of evaluation.

Error #4: Thin-Slicing Leads to Rapid Judgment Based on Limited Information

Thin-slicing refers to the human ability to make rapid judgments based on very brief snippets of information or experiences. Individuals may use small, two to five-second interactions to create a value judgment about that person. These quick judgments can significantly influence credibility, knowledge, and likability perceptions. 

While “thin-slicing” has been around for a while, it became more popular with Malcolm Gladwell's book “Blink.” In the context of depositions, it is vital to consider how witnesses present themselves, especially when they are aware of being recorded or observed. “Thin-slicing” may come into play if a witness’s deposition is recorded so that snippets of that testimony could be played back later for jurors. In situations where opposing counsel may wish to use a snippet of your witness, trial attorneys will want their witness to appear calm, credible, and fully prepared for testimony

By preemptively addressing issues related to arousal levels, overestimating abilities, evaluation apprehension, and thin-slicing, defense attorneys can help witnesses enhance their testimony performance and credibility. 

Courtroom Sciences can help trial attorneys prepare witnesses through focused witness effectiveness training. Our psychology experts deliver sophisticated neurocognitive training that ensures your witnesses are fully prepared for testimony and prevents them from making errors that can devastate your case. 

Speak with one of our experts to get started. 

Reptile Theory at Deposition: Extinct or Evolved?

Download Now

Stay updated: