Jan Mills Spaeth and Rosalind R. Greene 2013-11-14 11:12:41
Will Fact-Finders Believe Your Clients and Witnesses? Verdicts are often painfully contingent upon the believability of your witnesses, which includes your clients. Jurors, judges, mediators and arbitrators may overlook damaging evidence if they believe witness testimony, but they will seldom overlook suspected deceit or insincerity, even if the evidence is in your favor. This article focuses on areas where your clients and witnesses must be authentic. Interestingly enough, research has shown that there are no “cut and dried” single symptoms of dishonest behavior. While some studies have concluded that deception usually involves changes in pitch, speech errors, shorter or longer periods of eye contact, specific facial expressions, gestures and physiological changes as a result of anxiety when lying, other studies have totally contradicted these assumptions. Individuals have their own specific methods for communicating and responses that are untruthful for one person are entirely legitimate for another. The key to detecting lying is to determine normal responses for each person and look for deviations from these. Also, patterns as opposed to specific reactions are more reliable in assessing falsehoods. While some people are more skilled at recognizing deception than others and some people are much better liars than others, most jurors are not experts in interpreting reactions. Unfortunately, they do still form conclusions and studies have shown that jurors are likely to be just as adamantly convinced of their wrong reactions as their right ones! This makes it crucial for your clients and witnesses to project the following “Cs” of believable testimony: composure, congruency, character, commitment and concern. Composure: A calm, composed witness may be more crucial to your case than realized. Why? Because research has found that traits often attributed to deception are exactly those traits usually found in anxiety. Second, investigations have demonstrated that when people suspect someone has done something wrong, they are more likely to attribute responses to guilt or deception than to anxiety or uncertainty. What does this spell out for the courtroom? If your clients or witnesses project high tension and are there because of charges of wrongdoing (or to defend someone accused of wrongdoing), jurors and other fact-finders are more likely to view your witnesses as dishonest as opposed to just anxious. Congruency: Mixed-messages (those in which body movements, voice intonation and actual words conflict) cause instant “red flags” for panels, judges, arbitrators and mediators. Decoding mixed-messages involves three stages: confusion and uncertainty, concentration on the mixed-message itself, and negative reactions and withdrawal from the source of the messages. How does this process affect witnesses’ testimony? First, fact-finders can develop instant suspicion of your client. Second, their fixed concentration on the confusion draws their attention away from the on-going testimony, likely missing important points. Third, if the fact-finders cannot remedy the mixed-message in their minds, they become uncomfortable with witnesses, questioning their reliability. In addition, research signifies that most people opt for trusting their visual perceptions over auditory ones when uncertain which means they could initially overlook the words your witnesses are speaking if their words and actions are not congruent. Those words, which may have been so carefully rehearsed, are now meaningless. It is also critical that the appearance, behavior and statements of clients and witnesses match the image that you, as counsel, want to project to fact-finders. Lack of congruency here will destroy witness credibility. For example, “Norman” was a defendant in an employment dispute. One of the charges against the defendants involved a hostile work environment which allegedly led to a resignation by the plaintiff . The evidence against Norman as an individual defendant was not bad, but Norman was his own worst enemy! He came across as domineering, ill-tempered, impatient and rude. His image fit the counts against him. Although he initially resisted input in witness preparation, eventually our points hit home, especially after Norman saw himself on videotape. In Norman’s case, a plea bargain was accepted prior to trial so he never did have to testify although he had been much better prepared to do so. Character: Having fact-finders see some evidence of good character and intentions in clients and witnesses cannot be overrated. This involves the appearance of honesty, sincerity, morals, values, responsibility and dependability. The perceived character of witnesses and clients must conflict with the opposition’s claims regarding them. One of the areas over which attorneys have little control is “extrinsic determinants” of credibility: attributes and characteristics clients and witnesses bring with them into the case. Education, sex, race, socio-economic status, criminal history, occupation and physical appearance can all result in a panel’s negative bias toward your clients and witnesses. When witnesses have these against them, it is more imperative than ever that they project convincing “intrinsic determinants” of credibility, which include the perception of good character and reliability. While the perception of some good character traits certainly will not overshadow strong evidence against a defendant, it can render a fact-finder more open to arguments in favor of the defendant and can result in some leniency in regard to liability, guilt, sentencing and/ or damages. The following is a good example of this. “Roy” was charged with rape and sexual assault. Evidence against him was not clear-cut and the case centered largely on his word against the alleged victim’s. Our main problem was Roy himself. Roy was a young Hispanic male who came across as arrogant, defiant and impervious. His arms, neck and face sported tattoos, he had facial piercings and a shaved head. He also had a prior criminal history. These were some of the challenging “extrinsic” qualities of credibility Roy brought to this case. Focusing on “intrinsic determinants” of Roy’s credibility and character became essential for this case to off set the “extrinsic” qualities. These included his dependability in paying child support, the financial assistance he provided to his mother and sister and the fact that he had enrolled in a community college, among others. Although Roy was initially resistant to assistance, after several witness-prep sessions we felt good about his progress, and he felt infinitely more comfortable with the prospect of testifying. He came across as sincere and candid. While there are always areas where we cringe with clients’ testimony, overall Roy did well. The jury acquitted him of all charges. Commitment Jurors want to see clients testify and give their version of the case. Not surprisingly, failure to testify can be interpreted as guilt or evasiveness, regardless of the right to not testify. But jurors are just as likely to deem clients liable or guilty if they do take the stand and then come across as ambivalent. Research has revealed that fact-finders could not distinguish between deceptive and ambivalent messages, seeing them both as equally deceitful. In other words, if your clients cannot be fully committed to a position, there is no credibility advantage to putting them on the stand. The same applies to witnesses. Weak testimony, with little conviction or commitment, carries little weight with fact-finders. In the case of “Larry,” a high school teacher charged with sexual misconduct against a minor, the police had wired the purported victim and taped her conversation with her former teacher. “Why,” she asked repeatedly, “did you do that to me? I had faith in you and have suffered a lot of emotional damage because of your sexual attack on me.” Larry never denied the charge to either the victim or the jury. And although he never admitted to any wrongdoing, even to the victim, and the evidence against him was weak, he gave evasive, ineffective answers to the charges. Getting this client to take an adamant, committed stand against the charges was crucial, but he never did, and as a result, was convicted. Concern Jurors want a psychological reason to side with clients and witnesses. Fact-finders want their consciences’ satisfied and want to be reassured that no further wrongdoing or damage will occur as a result of their decisions. Expressed concern from clients and witnesses will go a long way toward convincing fact-finders that the witnesses have character and integrity and no foul intentions. Compassion, sadness and concern with current situations can be expressed by witnesses without admitting liability or guilt. Research has found that when done properly, these expressions can lessen compensatory and punitive damages against civil defendants and can lessen the severity of convictions and sentencing for criminal defendants. To show how lack of concern can damage a client’s credibility, I will use the case of “Ed,” who had been charged with medical malpractice. Regardless of the hours spent trying to get him to show sadness, concern or emotion regarding the death of his patient during surgery, Ed was unable to do so. While it was certainly not his intention, he came across as distant, cold, calculating and unfeeling. The first trial resulted in a mistrial, which was fortunate as a poll of the jurors revealed a negative attitude toward this defendant. In his second trial, Ed did not take the stand, so had less opportunity to negatively influence the jurors. The result was a defense verdict. Summary: As an attorney, you have likely had clients and witnesses who needed little preparation for trial. Their delivery was crisp, relaxed, positive, confident and consistent. Some clients, in contrast, need a lot of work to overcome credibility problems. Most clients fall in the middle, however, and drawbacks that could negatively impact their testimony could be overlooked. Often, just a few hours of preparation involving mock cross examination, video recording, video-reviewing and evaluation and behavior modification techniques will significantly improve witness testimony. Helping clients and witnesses to project these five Cs of believable testimony is one of the biggest favors you can do for them. Jan Mills Spaeth, Ph.D. and Rosalind R. Greene, J.D., are litigation consultants with Advanced Jury Research, based in Tucson. They work in all aspects of trial consulting and have written extensively on legal issues. Working throughout the state and nationally, they assist with jury selection, witness preparation, case strategy and focus groups/mock trials. Dr. Spaeth has published DVDs on witness preparation with the American Bar Association, and has another set coming out this spring. Jan Mills Spaeth, Ph.D. and Rosalind R. Greene, J.D. can be reached at 480-753-3771 or 520-297-4131. AJR’s website is www.adjuryresearch.com.
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