In this video episode of The Litigation Psychology Podcast, Dr. Bill Kanasky gives an overview of what occurs when a witness “loses their mind” during testimony and what can be done to prevent these meltdowns. Witnesses are particularly vulnerable to plaintiff reptile attacks which prey on witnesses that have not been trained effectively to avoid these traps through advanced neuro-cognitive training.
Full Episode Transcript
[00:05] Bill Hey, it’s Bill Kanasky from Courtroom Sciences. Hope everybody is, um, surviving the pandemic. I figured I would do this brief podcast and talk to you about a really important problem that we see with witness testimony. It’s when your witness loses their mind; they go—they go insane and they start to say crazy things. In clinical psychology, we refer to this as the concept of “amygdala hijack.”
We wrote a paper for DRI that’s in For The Defense that we published a couple months ago and then recently did a webinar for DRI, but this is such an important topic I really wanted to address this via podcast, put it on LinkedIn, and wear my Bears shirt because I don’t follow the Zoom dress code at all. So, let me show you—let me share my screen with you and kind of show you what I’m talking about: the whole concept of amygdala hijack.
All right, so the amygdala and the hippocampus—these are very—these are two very deep brain structures. The amygdala is in charge of the fight-or-flight response, meaning when your brain feels threatened—for example, by a plaintiff attorney that’s being very aggressive—this part of the brain can take over. The hippocampus, or hippocampi if talking plural: emotional memory. Meaning, the hippocampus learns what’s dangerous, feeds it back to the amygdala, which then sets off the fight-or-flight response. Very, very nasty cycle, and I see this with witnesses all the time. Very smart people saying things that are very harmful in deposition and trial because they’ve become emotional. The hippocampus and the amygdala have taken over, not the cortical part of the brain which we want—which I’ll cover in a second—and your witnesses starts doing crazy, just incredible stuff.
[02:06] Bill And so, what we have here is the prefrontal cortex. This is the part of the brain that we want to be active. This is the part of the brain where witness preparation data is stored. So, all this work you’re doing with your client—okay, all this work, the document review, what to say, what not to say—it’s stored in this front part of the brain right here called the prefrontal cortex. And you have three sections of it: ventral medial, anterior cingulate, and dorsolateral prefrontal cortex. This is the part of the brain which is rational, logical. And when your witness uses this part of the brain, we get logical responses.
These are calm, poised witnesses that have been through advanced witness training to stay calm when that plaintiff attorney is across the table being—being very aggressive. However, if the amygdala gets involved and the hippocampus gets involved, we call this “amygdala hijack.” Meaning, the prefrontal cortex—all that part of the brain that is housing the storage of the witness preparation—it’s completely disabled. And then what you have are these defensive, illogical responses which can be highly damaging to your case.
So, let’s go ahead and watch some examples of how this process can really hurt your case. Everybody knows Roger Stone. Okay, if you don’t think Roger Stone went through hours and hours of witness preparation for his deposition, you’re out of your mind. Okay, but he was being attacked. This is how Roger Stone handled it:
[03:54] Video
“Two and two equals four, doesn’t it? Is that a saying?”
“Well no, no, proof, evidence Larry, evidence proof Larry, evidence, proof, evidence, 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. You’ve got nothing.”
“I’m asking you. You can take your time, go through a paragraph by paragraph, tell me if anything’s inaccurate.”
“I’m not going to do that.”
“We went through this yesterday.”
“We didn’t. I didn’t ask it, though.”
“He likes to hear his biography. It makes me feel important.”
“Yes, please do. I’d like to speak to the judge myself about this.”
[04:59] Bill Okay, Roger, nice job. Uh, Roger lost his mind. Uh, Roger is the victim of amygdala hijack. And again, Roger’s a smart guy and Roger’s probably really well-prepared. Too much emotion takes out logic from the equation. The subcortical structures of the brain take over, and that’s the fight-or-flight response, and that’s all on videotape.
Now, this guy is just more of a regular guy, but it can happen anyway. It doesn’t matter really about intelligence when you’re in an adversarial position like a deposition and you get a plaintiff attorney that’s coming after you. Without the proper training, that subcortical part of the brain will take over and you’re going to be on videotape saying some pretty damaging things.
[05:46] 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.”
[06:22] Bill Emotional, defensive witness. Looks terrible. It looks like he wants to fight; it looks like he wants to throw down right now. Does not come across as credible, does not come across as likable. And again, the statistical odds of these videos being played at trial are super high. Because if a plaintiff attorney has their hands on videos like this, why even call the witness? I’d play the video.
And yes, even famous people—superstars—can fall victim to amygdala hijack. I think this one just kind of speaks for itself.
[06:57] Video
“Did you perform at the Virgin Mobile Music Fest in 2008 with Kanye West?”
“I don’t know, but I know I did perform at this badass birthday party recently. She was crazy stupid thick.”
[07:17] Bill Oh, how does it happen? How does it happen? Well, typically witnesses are told to be calm. Well, that doesn’t work. In fact, you could hear Roger Stone’s attorney saying, “Calm down, calm down.” It doesn’t work. It’s a neurochemical response. And once it goes, it goes, and it’s active for about three to six hours. So, the moment your witness loses their mind, you’re screwed as the defense counsel.
So, specialized training—which is what we do at Courtroom Sciences—the moment you feel the temperature turning up, you need to get your witness out of the room. Because if you don’t—I’m going to stop sharing my screen here—if you don’t, it’s going to be trouble. And the moment the witnesses get emotional, they become defensive, argumentative, kills all of their credibility. And again, this is 100 percent preventable with the right training program.
[08:13] Bill Now, as neuro-clinical psychologists, this is what we do. But we have to rewire the witness’s brain. You can’t just tell them to calm down. You can’t just tell somebody, “Hey, stay cool.” “Hey, uh, when the attorney starts pounding the table and assaulting you, uh, you know, don’t react to it.” People are not wired like that. People are automatically going to react; it’s human nature. So, we have developed a specialized training program to prevent this. So no matter whatever happens, uh, prefrontal cortex will make sure that, uh, that stays in charge. Amygdala hijack will not happen, and you’re going to have an effective, poised, credible witness on videotape.
Thank you, we’ll see you next time.
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