Witness Preparation and Body Language: Will Jurors Think Your Witness is Lying?

Updated: Jun 22, 2020



I was sitting in a dark room behind a one-way mirror watching a group of mock jurors deliberate. It was a sexual harassment case that was going to trial in the coming months. Part of the mock trial involved exposing the participants to video deposition clips of the supervisor of the person accused of the sexual harassment. One of the claims was that this supervisor had knowledge of the harassment for years, yet he did nothing about it.

Then there it was – as the mock jurors were discussing this witness’ testimony, one of them said: “As soon as I saw him touch his face, I knew he was lying.” Wow, just one gesture and this witness was lying? There goes the whole case in an instant, all because of a simple gesture.

You might think I was surprised to hear such an assessment and ultimate conclusion. Nope. I actually wasn't surprised at all. It seems like I’ve heard something similar hundreds of times, both from mock and actual jurors.

How Can Jurors Tell When Someone Is Lying?

They can't. Most people think they’re good at lie detecting, but as it turns out, laypeople are about as good at it as a coin toss (see here and here). According to former FBI agent and body language expert Joe Navarro, the truth is, there's no Pinocchio effect, or single indicator of lying (see here for a more in-depth discussion). The fallacy that most people think they're good lie detectors is a problem in everyday interactions, and it's even more acute in trial. There’s a lot riding on whether jurors believe the testimony of a given witness. The consequences for criminal trials can mean the difference between freedom and the loss of freedom, including one's life, and for civil trials, it can mean the difference between $0 verdicts and verdicts in the hundreds of millions of dollars.

Lie Detection Fallacies

After speaking with hundreds of jurors, I've heard many reasons people think witnesses are lying. I've listed my "favorite" three below, in no particular order:

-Lack of Eye Contact. The most common belief about deception is that if the person with whom you’re talking averts her gaze, then she's being dishonest. This myth is something you’ve probably heard all your life. How many times have you heard the phrase, “Look me in the eyes and tell me X”? The implication being that, if you’re being honest, then you can look someone in the eyes. If not, then you’ll look elsewhere.

Reality: There’s no difference in eye contact between people who are lying and those who are being truthful. In fact, some evidence suggests that liars engage in more eye contact than truth-tellers anxiety-provoking.

-Looking Up and to the Right (or left). A branch of psychology in the 70s and 80s promoted the idea that if a person looks up and to the right (or left if they're left-handed) then they're lying. The idea was that if people look up and to the right, then they are engaging the right (creative) hemisphere of the brain and thus creating a story, whereas looking up and to the left means they are engaging the left (rational) hemisphere and therefore telling the truth. This idea made its way into popular culture and is still believed by many.

Reality: There's evidence to suggest that there’s no difference in the direction people look when they’re lying or telling the truth.

-Nervousness. Nervousness is the second most common reason people think someone is lying. Examples of nervousness recognizable to everyone include sweating, fidgeting, touching the face, rocking, experiencing a dry mouth, and rapidly blinking the eyes. When people see these behaviors, their logic goes something like this: “This witness is reacting like this because she’s nervous, and she’s nervous because she’s lying . . . there's no reason to be nervous if you just tell the truth."

Reality: Testifying is anxiety provoking for virtually every witness, particularly during cross-examination. So it follows that witnesses will exhibit behaviors indicative of nervousness when testifying and thus, they appear to the layperson to be lying. To make matters worse, some research has shown that liars don't exhibit nervous behaviors more than truth-tellers, in fact, they might even exhibit fewer.

Why This Matters

People aren't going to change their beliefs about their own ability to detect lies, and they're not going to change the cues they rely on to make these detections. Thus, people will continue to make false attributions about behavioral indicators of lying and get it wrong about 50% of the time.

In the context of witness testimony, it gets worse. Once people are selected to sit on a jury, their "lie detection" radar goes into overdrive, and they scrutinize and make more assumptions about witness' body language and demeanor than they would in everyday settings (see here for more detail on this topic).

So, if you're a lawyer who prepares witnesses for their testimony, it's not enough to simply tell witnesses to "just tell the truth," or to hand them a list of "tips" for testifying. Witnesses need to be trained to testify, which entails learning about jury psychology, juror expectations, how to handle direct- and cross-examination, how to keep a consistent demeanor, how to deliver testimony confidently, how to keep emotions in check, and so much more. All of this takes time and rigorous practice, with the right kind of targeted feedback delivered at the appropriate times. If this is not done correctly, you run the risk of the jury or judge assuming a truthful witness is lying – which can have devastating consequences on the final verdict.


For more information on how to improve witness preparation, check out these posts:


Jeff Dougherty, M.S.

President - Litigation IQ

713 392 8135

Jeff@LitigationIQ.com

www.LitigationIQ.com

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