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OCTOBER 2014 - Cynthia Cohen
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COMMUNICATION AND TRIAL PRACTICE COLUMN

Communication and Trial Practice Tips for the Woman Lawyer

Demeanor, Deception, and Credibility in Witnesses
Part 5: CREDIBILITY (LIKING & INSTRUCTIONS)

by Cynthia R. Cohen, Ph.D., Verdict Success LLC 

This is the fifth installment 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 Determining Credibility. Jurors deciding the criminal prosecution of William Balfour in the murder of singer and actress Jennifer Hudson’s mother, brother, and nephew had circumstantial evidence. They had critical pieces of evidence, but jurors saw holes in the timeline.[i] Jurors decided they would evaluate witnesses one by one. They would decide on credibility as testimony of each witness was read back. Jennifer Hudson was credible, but her testimony was irrelevant. In listening to all the witnesses, pieces of evidence came together. Cell phone records indicated that Balfour was not where he claimed to be at the time of the murders. He was convicted.

Hudson’s jurors were able to transcend the CSI Effect or the absence of DNA and focus on relevant testimony. Jurors generally try to do their best in determining credibility. While the courts spell out the instructions for determining credibility (included below), psychologists study underlying factors of credibility.

Lawyers start building credibility during voir dire and through trial attempt to deliver on promises. Witnesses have a shorter time to build credibility. What happens during examinations is critical to whoever calls the witness. While there are individual differences, there are groups of people who are likely to be believed or disbelieved. Jurors usually believe experts who prepared carefully, celebrities, presidents, professors, and doctors. Jurors usually do not believe the mother of the defendant, corporate officers, and in some venues ­– the police.

Liking and Credibility. Early psychology studies of trustworthiness looked at underlying characteristics. Anderson[ii] compiled a list of 555 adjectives used to describe people. He asked college students to indicate how much they would like a person who had each of those characteristics. The trait most valued by college students in the 1960s was sincerity. Of the eight top adjectives, six related to sincerity (i.e., sincere, honest, loyal, truthful, trustworthy, and dependable). The adjectives rated lowest were liar and phony – dishonest was close to the bottom. Possessing the highly rated qualities increases the probability that one will be liked.

There are many theories of liking and while determinants of liking (e.g., proximity, rewards, similarity, and complementarity) do not insure credibility, liking contributes to consideration of trusting the witness. Similarity is one of the most important factors affecting liking. Sharing a common interest in playing bridge or golf, for example. The effect of similarity is seen most clearly with people who share cultural and demographic characteristics, attitudes, beliefs, interests, and background.

Lawyers sometimes like a juror and falsely assume that it is reciprocal. Liking is more visible with witnesses. How much you like someone greatly affects how much he or she likes you. Once you form a positive impression of someone, it makes it more likely that the two of you will like each other. If you form a negative impression, the reverse is true. The more positive you are in expecting to be liked, greatly increases the chance that you will be liked. If however your enthusiasm is seen as having something to gain, then you may be seen as disingenuous.

Liking plays an important part in how you relate to your client. Jurors notice everything in the courthouse and being respectful of clients is critical. Remember jurors trust body language. Another factor that affects liking is physical attractiveness. People considered attractive are more liked than people considered not attractive.[iii] Stroebe’s research indicates that physical attractiveness is more important to men than to women and similarity had a greater effect for females than males.

While it is overly simple to conclude that more contact is always good, familiarity leads to liking. Zajonc[iv] showed subjects pictures of faces. Some of the faces were shown as many as twenty-five times, others only one or two times. Afterward, the subjects were asked how much they liked each face and how much they thought they would like the person pictured. The more often the subjects had seen a face, the more they said they liked it and that they thought they would like the person pictured.

Freedman, Carlsmith and Sears[v] studied the effect of familiarity with actual people. Each pair of subjects met either three, six, or twelve times. At each meeting, they sat across from each other without talking. At the end of the series of meetings, the subjects were asked how much they like each of the other subjects. The more often they met, the more they liked each other. Consider having your client at trial as much as possible. Initially-unlikeable people may become more likeable to jurors as time progresses.

Other things being equal, there is a tendency to like people more if they are honest rather than dishonest, helpful rather than harmful, friendly rather than unfriendly. On direct exam it is easy to relate to witnesses in a friendly manner.

Instructions on Credibility. The Judicial Council of California broadly defines parameters for jurors to assess credibility. Below are the Council’s suggested pre-instructions on credibility.[vi]

Evidence Code section 312 provides:

Except as otherwise provided by law, where the trial is by jury:

(a) All questions of fact are to be decided by the jury.

(b) Subject to the control of the court, the jury is to determine the effect and value of the evidence addressed to it, including the credibility of witnesses and hearsay declarants.

Considerations for evaluating the credibility of witnesses are contained in

Evidence Code section 780:

Except as otherwise provided by statute, the court or jury may consider

in determining the credibility of a witness any matter that has any

tendency in reason to prove or disprove the truthfulness of his testimony

at the hearing, including but not limited to any of the following:

(a) His demeanor while testifying and the manner in which he testifies.

(b) The character of his testimony.

(c) The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies.

(d) The extent of his opportunity to perceive any matter about which he testifies.

(e) His character for honesty or veracity or their opposites.

(f) The existence or nonexistence of a bias, interest, or other motive.

 

The “credibility of expert witnesses is a matter for the jury after proper

instructions from the court.”

Suggestions for Credible Witnesses:

§   Appropriate facial expressions (e.g., smile appropriately)

§   Eye contact with questioner

§   Talk to jury when directed

§   Take time to think before speaking

§   Sit upright in witness chair

§   Straighten shoulders (unless victim)

§   Deflect bad arguments – not argumentative, not evasive or defensive.

Next month’s column on trustworthiness and expertness will conclude this series on Demeanor, Deception and Credibility.



[i] Meisner, J., & St. Clair, S. Chicago Tribune, May 13, 2012.

[ii] Anderson, N.H. (1968). Likeableness ratings of 555 personality-trait words, Journal of Personality and Social Psychology, 9(3), 272-279.

[iii] Stroebe. W., Insko, C.A., Thompson, V.D., and Layton, B.D. (1971). Journal of Personality and Social Psychology, 18(1), 79-91.

[iv] Zajonc, R.B. (1968). Attitudinal effects of mere exposure. Journal of Personality and Social Psychology, 10(4), 1-27.

[v]  Freedman, J.L., Carlsmith, J. M., Sears, D.O. Social Psychology (2nd edition). (1974). Oxford, England: Prentice Hall.

[vi] Judicial Council of California. (2011). Civil Jury Instructions. December 13, Judicial Council Meeting. 


WLALA Member Cynthia Cohen specializes in jury research, trial strategies, and settlement decision-making at Verdict Success. Dr. Cohen can be reached at 310-545-7914 or ccohen@verdictsuccess.com.

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