Demeanor. Throughout my
career as a trial consultant, I’ve written and presented seminars on Demeanor,
Deception and Credibility. This month’s column is adapted from an earlier paper
in conjunction with an ABA Section of Litigation Annual Meeting presentation.
I’m sharing this knowledge with WLALA over several months.
Jurors use intuition in judging demeanor,
deception, and credibility in their daily lives. Since jurors bring life
experiences with them to court, understanding perceptions of truthfulness and
lying behavior is critical. Whole books are written on the topic of lying [i],[ii] and a
television series, Lie to Me, spawned
from the work of Dr. Paul Ekman, the renown psychologist in the area of human
emotion and lying. Social scientists study lying behavior, but knowing the
myths that jurors’ believe is crucial. This column focuses on perceptions of
behavior and suggests ways to enhance witness credibility.
Witness Assessment Method. How do you feel about your natural ability
or intuition in sizing up witnesses? Do you understand how to use information
from expressions, voice, and gestures in witnesses’ testimony? Do you recognize
signs of perplexity, interest, and comprehension from posture, gaze and
This section on demeanor describes assessing witnesses’ behaviors to
sharpen your intuition. While there are individual differences for witnesses, a
witness assessment method can be a template to evaluate any witness.
Articulating the specific behaviors contributes to further defining your gut
feeling. Note the witnesses’ baseline behavior and changes from baseline.
Adding subjective qualities such as whether the witness is direct, honest,
persuasive, qualified, and understandable are a good start. Break down
subjective qualities into observable behaviors. Advice for witness preparation
follows the assessment.
Role Expectations for
Witnesses. In judging a
witness, it is important to understand expectations of the witness’ role, as
well as interpret his or her behavior. Jurors make decisions about witness
testimony based on more than just the witness’ occupation. The witness’ role in
the case and how it is fulfilled contributes to whether the witness has a
pivotal role. Is this witness a friend of the plaintiff, a treating doctor, or
an expert? In looking at witnesses, jurors evaluate them against their
expectations of the role of a friend, treating doctor, expert, etc.
How the witness fulfills the role is crucial. Assess how jurors might
perceive witnesses when developing case strategy and deciding who will testify.
Does the witness’ appearance match the expected role? Does he or she look like
a CEO, financial advisor, or a hydrology expert? Does the operations manager
responsible for firing the plaintiff match the jurors’ expectations of a
manager? Does the advising financial consultant sound confident testifying that
the building should have sold at the time it was sold, rather than at the top
of the market?
In assessing the role, if you see a CEO chewing gum for example, it
diminishes the role. Of course a witness would not chew gum on the witness
stand. None of your witnesses should chew gum in videotaped depositions either.
Make sure that role expectations are considered before depositions and avoid
habits or behaviors that detract from the essence of the testimony.
Behavioral Patterns. Isolated behavior sometimes becomes an
exaggerated headline (e.g., a slip of the tongue or a racist comment).
Behavioral patterns of a witness tell the whole story. It is common knowledge
that witnesses who break down on cross are not as effective as those who remain
consistent. Across several hours or several days, you can more readily see
changes in witnesses’ behavior. When a witness is comfortable and feeling in
control while being questioned, he or she appears more confident and credible.
Tension arises when presented with damaging documents. Jurors notice behaviors
such as nervous fidgeting, tapping the foot, and sweating when watching
videotapes or live witnesses. What matters is whether the witness is
consistently nervous or does this particular testimony elicit nervous behavior.
You habitually recognize baseline behavior in those close to you. It is
easier to read behavior from a family member or coworker versus a stranger.
When behavior changes in those close to you, it is easy to ask, “What is the
matter?” or share in their joy. Focusing on facial and vocal expressions aids
recognizing truthfulness in witness testimony.
The moment the witness walks into the courtroom, jurors begin making
attributions. How the witness walks reveals levels of energy, leadership, and
confidence. Jurors may not know how to describe the behavior or their gut
reactions. Whether articulated or not, these perceptions affect them. Straight-back
shoulders versus shoulders hunched over affects perceptions of confidence.
Understanding how proud posture and high energy deems witnesses as more
credible is important to convey in witness preparation.
Voice and Expression. What do James Earl Jones, Sean Connery, and
Katie Couric have in common? They are rated as having the best voices in a 2001
are stereotypes associated with vocal characteristics. Imhof notes a female
with a breathy voice is perceived as more feminine, prettier, petite,
effervescent, high-strung and shallower than other females. The same voice
characteristics in a male lead to perceptions that the person is young and more
empirical study varied pitch in males and females. Women with a low voice are
perceived to be more agreeable than women with a high voice. The reverse
pattern emerges for men. They are perceived as less agreeable when speaking
with a low voice. Higher pitch voices are more commonly associated with
Vocal expressions contribute to perceptions about the witness. Vocal
expressions are as important as facial expressions and verbal content. When
assessing voice, we notice pitch and tone. When there is a lower octave like a
DJ’s voice or James Earl Jones, the voice is deemed more credible. During a
witness prep session, one witness had a throatiness in his speech where his
vocalizations stemmed from the throat rather than the diaphragm. His father had
been a preacher. If the raspy voice doesn’t work for the witness, one way of
training the voice is to practice speaking from the diaphragm, rather than
projecting from the throat.
Vocal expression includes phrasing, pausing, and interruptions. In
another witness preparation session, a mining expert consistently interrupted
the questioning lawyer. He also volunteered information on cross. When a
witness interrupts to answer the question before the questioner finishes, it
insults the jurors’ intelligence. Maybe the witness knows what question will be
asked, but it is important that the jurors hear the question. When explaining
the response-time continuum between silence and interruption, this expert had
an “aha moment.” His wife complained that he interrupts her all the time too.
He got it. He slowed down to hear the question instead of trying to show his
smarts. Suggest to fast-talking witnesses that they wait five seconds to
respond. Of course they will respond in three seconds or less, but they soon
Another witness had hesitated speech. Speech hesitancy can be
interpreted as indecisiveness – an attribute against the grain that an advisor
is decisive. This witness needed to prove he successfully negotiated the
contract. Finding the right rhythm in responding to questions makes a
Congruence between Verbal
and Nonverbal Behavior.
“I am calm!!” Do the nonverbal perceptions (posture, gestures, facial
expressions) match the verbal perceptions (voice, expression)? Look at
congruence between verbal and nonverbal behaviors. When the verbal and the
nonverbal behaviors don’t match, we tend to believe the witness’ nonverbal
behavior. Experienced trial lawyers understand nuances. The general public may
not. Some jurors are cynical, while other jurors take content at face value.
Nonverbal behaviors are not as consciously controlled as verbal
behaviors. This becomes important when discussing deception and credibility.
Facial expressions are sometimes consciously controlled as in fake smiles or
crocodile tears. The astute or trained observer often sees leakage. Leakage is
a term we discuss with micro expressions and deception. Leakage is the emotion
slipping out somewhere, whether it is covering the mouth or involuntary signs
in the lips.
Instructions on Demeanor. Can
demeanor assist in the impeachment of a witness? The Judicial Council of
California Civil Jury Instructions suggests that jurors pay attention to
demeanor in evaluating truthfulness. It suggests that jurors rely more on their
visual assessments than on their notes.
[i] Ekman, P.E. (1985). Telling
Lies: Clues to Deceit in the Marketplace, Politics, and Marriage, New York,
W.W. Norton & Company.
[ii] Granhag, P.A., & Stomwall, L. (Eds.). (2004). The Detection of Deception in Forensic
Contexts. Cambridge University Press, New York.
[iii] Marcucci, S.N. (2002). America’s best and worst voices.
[iv] Imhof, M. (2010). Listening to voices and judging people. The International Journal of Listening. 24,
Note: Upcoming Presentation, ABA Annual Meeting,
Boston, August 8, 2014, 2:30 pm., Don
Quixote v. Giant Windmill Corporation: Tactical and Ethical Issues in Preparing