Witness Testimony: Is 93% of Communication Non-Verbal?

Updated: Apr 22, 2020



If you've never heard that 93% of communication is non-verbal, you will. It's quoted in lectures and professional presentations; it's quoted in pop psychology magazines; and it's quoted in TV shows. Regardless of where you hear it or read it, it's not true in most cases. On face value alone, the oft-(mis) quoted 93% rule can't possibly be true for most communication situations. Just a few examples prove the point:


1. Text messages contain no nonverbal cues (unless you count emojis).

2. Emails contain no nonverbal cues.

3. Lectures rely almost exclusively on words.

4. Phone calls are devoid of body language.

5. Instructions from a boss or supervisor rely almost exclusively on words.


Imagine attempting to glean 93% of communication in the examples above based solely on nonverbal behavior – it would be impossible.


So when does the 93% of Communication is Non-Verbal rule apply? To answer that question, lets take a brief look at the rule's origin:


The 93% Communication Rule


In the late 1960s, researcher Albert Mehrabian and his colleagues found that a when the tone and body language associated with a statement were in-congruent with the actual words spoken, people derived more of the the meaning from the emotional tone and body language than from the actual words. The ratio was calculated to be 7% words, 38% tone and 55% gestures (body language). Thus, 38% + 55% = 93%, leaving 7% for words alone.


Misinterpretation


Once the 93% nonverbal communication "rule" made its way into popular culture the misinterpretation started and spread. People have taken Mehrabian's findings to mean that in all communication, words only account for 7% of the message, and tone of voice and body language account for the rest. Interestingly, Mehrabian has explicitly stated that the 7%-38%-55% "rule" is only appropriate in limited circumstances:


"Please note that this and other equations regarding relative importance of verbal and nonverbal messages were derived from experiments dealing with communications of feelings and attitudes (i.e., like–dislike). Unless a communicator is talking about their feelings or attitudes, these equations are not applicable..."

Body Language on the Witness Stand


What does this have to do with witnesses? Quite a bit. While the 93% rule theoretically applies when the speaker is talking about feelings and attitudes, the rule (or something close to it), likely applies when witnesses are cross-examined at trial. This is because when jurors are trying to figure out who to believe, they are forced to rely much on nonverbal cues much more than they do in everyday communication (for a deeper explanation of this phenomenon see here ).


In the context of trial testimony, particularly cross-examination, the voice tone and body language of witnesses often contradicts or betrays the words the witness speaks. This body language/word in-congruity can have many causes: e.g., nervousness, frustration, anxiety, and anger exacerbated by opposing counsel's aggressive questioning or rhetorical and emotional attacks. Regardless of the cause, when a witness' tone of voice or body language contradicts the testimony he's giving, jurors typically believe what they see rather than what they hear. This holds true even if the answer is as simple as "no."


Did You Shred the Document?


Imagine a corporate witness being asked on cross-examination if he shredded a key document. The witness squirms a bit, scratches his head, looks up and to the left, and timidly says, "no." Not very believable right? Now imagine the same question but the witness confidently says, "no," and appears at peace with the answer. Believable. The content of the testimony didn't change but the delivery did, and so did the meaning. Now imagine a witness being cross-examined for multiple hours or even days and his testimony is fraught with instances of in-congruities between his words and his body language. At this point the ratio isn't 93% of communication is non-verbal, it's probably closer to 100%. This is because when jurors see in-congruities between the words they hear and the body language they see, they assume the witness is lying. And when jurors believe they are being lied to by a witness, they toss the whole testimony.


Conclusion


Witnesses need to be taught how to testify in a way that the delivery of their testimony doesn't contradict the content of their testimony. This can sometimes take a substantial amount of work and training, and it requires the right kind of feedback given at the right time. If this important component of witness preparation is overlooked or underappreciated during witness preparation, witnesses run the risk of at best under performing, or at worst being completely disregarded by the jury.


For more on how to improve witness preparation, check out the following posts:

Jeff Dougherty, M.S.

President - Litigation IQ

713 392 8135

Jeff@LitigationIQ.com

www.LitigationIQ.com


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