Witness Preparation: Body Language Alone Can Make A Witness Look Like He's Lying

Updated: Jun 19, 2020



How do jurors know when a witness is lying? Well they don't, but they think they do, and this is a problem. But it's a problem with a solution.


Over the years as a trial consultant I have spoken to hundreds of actual jurors and probably thousands of mock jurors. And when I do, I almost always ask their thoughts about the witnesses they watched testify. And I've learned a lot.


One of the most important things these discussions have taught me is that people in general believe they can detect lying accurately (the truth is that people are about as accurate as a coin toss at detecting lying, see here and here for more on the topic). What's even more important is that I've learned that this belief intensifies the moment a person is sworn in as a juror. Why is that?


Jury Psychology


"Raise your right hand and repeat after me..." Once a person hears these words and accepts the fact that he or she is on the jury (usually to their dismay), a couple of things happen. First, their attitude changes. Now that they are on the jury and they realize there's no getting out of it, they want to do it right and thus they become focused and engaged. Second, they realize they've got a tough job to do, i.e., they need to figure out who's right and who's wrong. Furthermore, jurors recognize that the verdict they render will have a profound effect on the parties, but they also face the prospect of rendering the wrong verdict, which they realize would be devastating to one of the parties and ultimately a miscarriage of justice. All of this makes the jury's task very daunting.


Who Can I Trust?


The next thing that happens in jurors' minds is that they realize both parties will maintain polar opposite positions and the witnesses for each party will be testifying, under oath, in direct contradiction to their opponents. Additionally, each side will have skilled attorneys advocating for their respective clients. Under these circumstances, deciding who's right and who's wrong, or who's lying and who's telling the truth is extremely difficult. Words alone aren't going to answer the question.


What is a Juror to Do?


Faced with the predicament as outlined above, jurors become hypersensitive to anything they believe will augment their ability to make the right decision. This means in part, detecting any lies coming from the witness stand. If jurors can figure out who's lying, they can figure out which side to trust and thus believe, or at least want to believe. So, jurors start paying a great deal of attention to, and assigning much greater weight to things that wouldn't normally mean that much in everyday interactions. When it comes to witness testimony, this means they are paying strict attention to body language, tone of voice, facial expressions, hand gestures, apparent nervousness, eye contact (or lack thereof), and confidence (or lack thereof) in a way that they don't do in any other situation.


Perception is Reality


Let's return to my experiences interviewing jurors. When I ask jurors about witnesses, I'm interested to learn which ones they believed and which ones they didn't believe, and why. Regarding the witnesses jurors don't believe, I'm amazed at how many times I've heard something like the following: "The moment he touched his face I knew he was lying," or, "As soon as she covered her mouth with her hand I knew she was lying," or "He kept fidgeting with his pen so I knew he was lying," or "I could tell by his eyes he was lying." In reality the reasons witnesses fidget, touch their faces, or do anything jurors perceive as lying, isn't necessarily because witnesses are lying, it's usually because they are nervous. But "nervousness" is not a good excuse for jurors in this context because they mistakenly believe that "if you're telling the truth you have no reason to be nervous, and if you're not nervous, you won't fidget" (jurors have told me something similar to this many times). Once jurors determine a witness is lying, they usually disregard the entire testimony (I've also been told this many times). The truth is that if jurors perceive that a witness is lying, that witness is lying.


Impact


The implications of jurors believing a witness is lying are enormous. What if this is an expert witness charging $500 dollars per hour and the jury simply dismisses his or her entire testimony? Imagine all the time, effort, and money that has just been wasted, not to mention the fact that crucial information the jurors need to understand has just been lost or disregarded. What if this is a key fact witness and the jury not only disregards his or her entire testimony, but also believes he or she is willing to lie under oath? The impact of such beliefs affect trial outcomes.


What Can be Done


Before any witness ever testifies in a deposition or takes the witness stand at trial, they need to be taught how important the demeanor, body language, tone of voice, and confidence is in the context of litigation and how these non-verbal cues will be scrutinized by the jury, and why. Witnesses also need to understand that it's not just about "first impressions" as we normally think about them in a social context. It's about whether or not the jury will even want to listen to anything the witness has to say. It's also about which side a jury is likely going to trust and therefore believe, or at least want to believe. This is why it's so important to spend the appropriate amount of time preparing witnesses, not just on the facts of the case, but just as importantly on their delivery of those facts (which is sometimes even more important than the facts themselves). This all takes time, effort, and expertise and should never be overlooked.


Conclusion


Jurors can be hyper-critical of the manner in which any witness testifies, and for good reason; jurors have a tough job to do. And, even though the emphasis and interpretation jurors put on the delivery of testimony is unfair, and the conclusions they draw about a person's honesty based on body language and other nonverbal cues are likely incorrect, it's important to recognize that this will never change. What can change is the manner in which witnesses are prepared prior to testifying. Every witness must be taught (and not just told) how to deliver their testimony in a way that engenders juror trust. Specifically, witnesses must learn how to handle the rigors of testifying without exhibiting any behaviors or mannerisms that jurors will interpret as indicators of lying. When a witness is prepared correctly, the chances of jurors drawing incorrect inferences about that witness' honesty can not only be mitigated, but can be eliminated.

Jeff Dougherty, M.S.

President - Litigation IQ

713 392 8135

Jeff@LitigationIQ.com

www.LitigationIQ.com

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