Heart of darkness: hidden dimensions of witness effectiveness training
We refer to the “heart of darkness” as that murky, subjective realm in which jurors make character assessments that decidedly tilt the playing field in a case. The negative connotation is utilized since, when this tilt occurs, there is a positive and a negative polarization involved. For positive attributes, we endeavor to simply preserve those intact, while it is the negative side that requires the trial team to roll up their sleeves and go to work. Most strictly “hard” evidentiary matters are usually well under control of the experienced litigator; however character, persona and demeanor of the witnesses are not.
Another way to conceptualize the issue is that, just like voters in elections, jurors do not vote for the best, they vote against the worst. Particularly for defendant witnesses who are executives, officials, or corporate representatives, jurors begin from the starting point of suspicion, not trust, and when the understandable normal human reaction of anxiety from the unfamiliar courtroom environment sets in, jurors do not say “Gee, if I were up there I would be nervous too.” Instead they say, “He is nervous – he must be hiding something.”
Accordingly, the current discourse considers the role of witness training from the perspective of “mine sweeping” or defusing a time bomb as a means to safeguard the case. As the path becomes cleared of dangers, a witness becomes free to “be him/herself” – the starting point of true credibility.
To shore up their cases, defendants have a specific need for their witnesses to appear to be candid and straightforward, while conversely, plaintiff counsel has a tactical requirement for defense witnesses to appear to be evasive or deceptive, particularly when the evidence is inconclusive. In many cases, for plaintiff to prevail, defense witnesses must be seen as deceptive if what plaintiff needs to demonstrate is unavailable in the hard evidence. Features of deceptive communication – those nonverbal behaviors that generate a conclusion that the communicator is being deceptive – are thus of particular interest to the litigator – or at least they should be.
It turns out that the field of study referred to as “deceptive communication” represents an entire area of specialization within the general study of communication, and indeed there are researchers who devote their career to this area of study. Generally, putative indicators of deceptive communication – e.g. crossing one’s arms, or failing to maintain eye contact – represent the “old wives tales” of deceptive communication. Most uninformed observers believe that these behaviors reliably reveal the presence of deception when, in fact, they do not. Many completely honest people fail to maintain eye contact, for example, because they are shy, or for cultural reasons, and others just cross their arms because it happens to be comfortable. The research does not support the conclusion that these types of conduct reliably reveal deceptive communication.
The real “tells”
Let us review the two leading determinants that generate a conclusion that a communicator is fabricating a deceptive communication. These two behaviors are referred to in their “jargon” terminology within the deceptive communication research literature: adaptors and response latency.
Adaptors, also called “manipulators” in the television show Lie to Me, are defined as repetitive, unnecessary peripheral body movements. In short, fidgeting. The term “adaptor” was coined to denote the general concept that such movements take place as a means for a person to “vent” excess levels of internal stress, thus “adapting” to the situation.
“Peripheral” body parts typically involve the hands and feet, but they can also refer to the head or buttocks. Exemplars include playing with a pencil; too many drinks of water taken too often; scratching the head, cheeks, ears, or shoulders; adjusting glasses; straightening hair; blinking too much; and similar behaviors. Bringing up hands to the face is generally a negative occurrence for the sake of credibility.
As an example, a witness was playing with a pencil, rotating it repeatedly, and when he saw his conduct on videotape he exclaimed, “Oh! I did not know I was doing that.” So, he was then subjected to an additional videotaped practice session and this time, while his hands were still, he was using his rear end (legs and buttocks) to swivel his chair repeatedly from side to side – another form of “adaptor.”
In witness training sessions, it is important to point out that jurors are masters at detecting unnecessary movements in witnesses. Even “jiggling” one’s leg – repeatedly moving the feet up and down – causes tiny movements in the arms and shoulders that jurors notice. Mastering the challenge of conquering “adaptors” is an inside job that requires the achievement of relaxation on the part of the witness through extended practice with the trial team using videotaped role-playing sessions.
It is important to keep in mind that the preceding does not suggest that witnesses must remain motionless. Naturally expressive movements -- gesticulating, supportive motions used to connote emphasis or other special circumstances (i.e., “being Italian”) -- do not undermine credibility. Rather, it is the repetitive and unnecessary features of these movements that are the key to identifying and remediating these problem behaviors among witnesses.
Response latency represents the second key determinant of whether a deceptive communication is occurring. Another jargon term, “response latency” simply refers to waiting too long to answer.
Witnesses will often ask, “How much time should it take?” as though there were a set number of seconds for which it is permissible to delay between the end of a question and the beginning of an answer. While we use the general framework of 2-5 seconds, strictly speaking the question of how long is too long is a subjective inference that is, at least in part, dictated by the nature of the question.
For example, if a witness is asked “What were your operating profits in 1983?” jurors would tend to be more lenient, and allow a witness to think for a while, in order to obtain a response. However, if a witness is asked, “Did you agree to set crude oil prices with your competitors?” and the witness delays in providing a response to a question of this sort, of course this is an entirely different matter altogether. So, for queries that deal directly with the key issues in the case, and especially those at the heart of the plaintiff’s allegations, direct, prompt and timely responses are expected by jurors. When a delay feels excessive, jurors will assume that the witness is fabricating a response.
Credibility as an overall goal is, by a wide margin, determined more by nonverbal behavior than by verbal content; however, our experience is that witnesses are typically prepared by trial teams by emphasizing the verbal content of their testimony. This is not surprising, as most trial teams do not utilize a psychologist when preparing witnesses and are not skilled in training witnesses in the realm of nonverbal behaviors (body language, mannerisms, persona, demeanor.)
Second, trial teams typically neglect the importance of role-playing with videotape; playing back the tape and critiquing it; and then repeating the process until the desired outcome is obtained. The practice effect is critical because witness performance – particularly in the realm of mastery of nonverbal behavior -- is an acquired skill, having more in common with perfecting a golf swing or (as a child) learning to ride a bicycle than it does with transference of knowledge. Witnesses will often say that they “get” something and promise that they can deliver, but in the crucible of the courtroom environment they tend to fold and revert back to behavior patterns that undermine credibility in the nonverbal realm.
Witnesses frequently “brace” for the interrogation environment and “contract” into a less adaptive mode of behavior which is stilted, uncreative and fear-driven, inhibiting the formulation of optimal responses and creating a demeanor which appears opaque and uncooperative. As this response style tends to be most pronounced under cross compared to direct, jurors adjudge the witness to be “a different person” when opposing counsel is at the helm, leading to the conclusion among jurors that the witness is inherently untrustworthy. There is literally no way to prepare for this problem absent practice using a complete role-playing scenario, with feedback, critique, and repetition.
Given this backdrop, the status quo of witness preparation is not enough, given the pre-eminence of nonverbal behavior in the determination of overall witness credibility. Our experience has been that witnesses are typically trained by “sitting down and talking,” when instead practice with videotaped role playing in the presence of a psychologist trained in communication principles yields far better results.
The Role of Cognitive Fatigue on Witness Performance