Tips for Increasing the Effectiveness of Witnesses

Maximizing the persuasiveness of witnesses requires attention to the preparation of witnesses for trial and their behavior on and off the witness stand.

Preparation

Preparation is fundamental to producing witnesses who can effectively communicate their stories to the jury.  Preparation requires listening to what the witnesses say, observing how they say it, and providing feedback to witnesses regarding their testimony.  The goal is not to change the testimony but to insure that witnesses communicate their testimony in the most persuasive manner.  The following are several points to consider in witness preparation.

Listen to the witness.  

Good listening skills play an important role in preparing witnesses.  Listening to the directness of the speech used, choice of words, patterns of speech, and tone of voice will help identify weaknesses (and strengths) in the witnesses' testimony.  Paying attention to the following features of the “speaking” of witnesses is important.

What style of speech is used?  The directness and assertiveness of the style of speech affects credibility and persuasiveness.  More direct or assertive speech (referred to as “powerful speech”) is more credible.  For example, “The car was red” is more direct (and persuasive) than “I believe the car was red” or “It would appear that the car was red.”  Listening to the directness of the speech can also help attorneys identify areas where witnesses feel uncomfortable.  Noting what these areas are and later discussing them with the witnesses can clear up concerns witnesses have and produce more effective testimony.

What words are chosen?  The words that witnesses choose in telling their stories influence their effectiveness.  The different “loadings” that words have influence how jurors view what is being described.  For example, in describing the manner of death in a burn case as the deceased being “fatally burned” or “consumed by fire” different mental images of what happened to the deceased are conveyed.  

In addition, the words used by witnesses influence the ability of witnesses to effectively communicate their stories to the jurors.  The use of jargon or sophisticated language lessens the effectiveness of the testimony.  Alerting witnesses to the presence of jargon or sophisticated language and helping them feel comfortable with their testimony will go a long way in promoting the effective presentation of their testimony.

What is the pattern of speech?  Disruptions in the normal pattern of speech reduce the effectiveness of the testimony.  Speech disturbances, such as “uhs” and “ers” and pauses and hesitations that break up the pattern of speech can yield a less persuasive witness.  Rising intonation at the end of a witness's statement can reveal the uncertainty of the witness.  Finally, credibility is enhanced when their testimony is delivered in a moderate to slightly fast delivery style.

What is the tone of voice used?  Witnesses who speak with a cold condescending tone of voice are particularly disliked by jurors.  A warm/friendly and respectful tone of voice promotes credibility.  Practice examinations with cold or condescending witnesses are necessary to remove these barriers to persuasion.  Developing respect for the jury in the eyes of these witnesses will help to reduce the occurrence of cold and condescending tones of voice.

Observe the witness.

 In addition to listening to witnesses, it is important to observe how witnesses communicate their testimony nonverbally.

What are the witness's body posture and orientation?  Notice the posture of the witness.  Is it rigid?  A relaxed body posture (without slouching) enhances credibility.  Also, does the witness show signs of defensiveness or anxiety through a “closed” orientation?  Crossing the arms and legs and turning the body away from the listener (questioner or jury) “closes off” the relationship between the witness and the listener—resulting in a less effective witness.  

What movements does the body make?  The movements of the witness can increase or decrease the effectiveness of the witness. Movements that show involvement in what is being said, e.g., illustrative gestures, promote credibility.  However, movements that reflect nervousness often reduce impressions of credibility.  For example, wringing hands, tapping fingers, shifting postures, and pulling one's hair are credibility--reducing movements, reflecting nervousness.

What facial expressions are present?  What facial expressions do the witnesses exhibit while they tell their stories.  Do they have a sad or concerned expression on their faces while they are saying something that is sad (e.g., expressing grief)?  Facial expressions consistent with what is being said promote credibility.  Facial expressions that are inappropriate for the situation decrease effectiveness.  For example, smiling when talking about the death of someone generally is viewed as inappropriate.  A witness who smiles in this situation, therefore, is likely to be less effective than one who does not smile.

Is there eye contact?  Eye contact enhances credibility.  Witnesses who can maintain moderate to high levels of eye contact with the attorneys (and later the jury) when giving their answers will be more credible.  Difficulties arise when witnesses avert their eyes when giving important answers.  For example, witnesses who avert their eyes by looking down when giving an answer instead of “looking the questioner (or jury) in the eye” lose credibility.

Is the nonverbal communication consistent with what is being said?  Inconsistency between nonverbal communication and the content of what is being said detracts from the witnesses' effectiveness.  When witnesses express anger or sadness verbally but project a calm demeanor, credibility is lessened.  In addition, if the emotion is expressed verbally while the onset of the supporting body movements is delayed, then credibility also is reduced.  For maximum effectiveness, verbal and nonverbal communication should be consistent.

Prepare witnesses for the experience of examination.  

Witnesses can benefit in the preparation process by going through a “dry run” of their testimony.  The nervousness associated with the experience of undergoing direct and cross--examination can be reduced by the experience of a mock examination.  Conducting the mock examination in a courtroom setting is ideal for preparing witnesses for their trial experience.  However, conducting the examination in an office or conference room still will afford witnesses an opportunity to reduce their anxiety and nervousness associated with trial testimony.

In conducting the mock examination, care should be given to conduct the questioning in as formal a manner as possible.  A location that promotes a formal atmosphere should be sought.  The attorney should make clear to the witness the formal nature of the examination.  Any informalities arising from the relationship between the attorney and witness should be suspended during direct examination.  If possible, on cross--examination, an attorney who does not have a supportive relationship with the witness should conduct the examination.  Witnesses will benefit more from exposure to a realistic cross--examination (including a “tough” examiner) prior to trial than from exposure to a “friendly and supportive” cross--examination.  

If witnesses will be using physical exhibits during their examinations, these exhibits should be present during the mock examination.  Witnesses will provide more confident testimony when they are familiar with the exhibits they will be using.

Finally, explain to witnesses the dos and don'ts of trial testimony.  Guidelines such as:  “Don't volunteer information on cross--examination,” “Think before answering the questions,” or “Don't guess at an answer” are helpful in having witnesses understand what they are to do.  Stress to witnesses that you are simply after the truth.  By explicitly stating this goal, witnesses will be more candid, which is necessary in the preparation process.  In addition, prior to taking the stand, witnesses can be reminded that should the opposing counsel ask them what their attorneys said to them in preparation, the witnesses can honestly say, “Ms. Smith told me to tell the truth.”

Provide feedback.  

The final consideration for preparing witnesses is to provide feedback concerning their testimony.

Reinforcing strengths.  Reinforce witnesses by providing compliments or positive observations on the portions of their testimony that are powerful or useful.  Positive feedback provides several important benefits.  First, it increases the likelihood that the witnesses will make similar statements while on the stand.  Second, it makes witnesses feel more confident in their testimony.  Third, it fosters greater rapport with the witnesses.

Addressing weaknesses.  Weaknesses in the witnesses' testimony or communication skills also need to be addressed.  Often supportive and empathetic feedback will produce improvements in witnesses' testimony and communication skills.  For example, “You and I know what a special boy Billy was.  However, I want the jury to hear more of this from you.  Let's give the jury a chance to know Billy” would be a supportive comment designed to increase the witness's willingness to discuss who Billy was.

In some situations, using “exercises” or asking witnesses questions will promote their thinking about aspects of their testimony that lacked emotion or feeling.  For example, “How did you feel when you found out that the other company had stolen your idea?” or “What went through your mind when you heard about the other company stealing your idea?” are questions that will help the witness be more in touch with desired feelings.  Exercises that have a witness think about (or list) in detail certain events or feelings are also helpful in fleshing out superficially treated parts of the testimony.

Attorneys should alert witnesses as to nonverbal communication that could have a negative impact on their testimony so that they can work to remove it.  However, it always should be kept in mind that the witnesses should not be more concerned with correcting communication problems than with simply telling their stories to the jury.

When problems appear during preparation, take the opportunity to discuss any reservations or concerns about certain testimony as they arise.  Sometimes witnesses are not in touch with feelings they have concerning certain events covered in their testimony, are unsure about how to express themselves, or are concerned about what people might think of them.  By discussing these matters during the preparation process, witnesses can be made to feel more comfortable and confident in what they have to say.

Finally, there are situations where nervous movements are expected and appropriate, e.g., relating the trauma suffered in a violent crime.  When such situations arise, the major considerations are (a) are the normal credibility--lessening behaviors inconsistent with the desired image of the witness, and (b) do these behaviors detract from the effective communication of the testimony.  When the answer to both questions is “no,” the nonverbal communication often need not be corrected.

The witness at trial

Two areas command our attention regarding witnesses at trial:  (a) their behavior on the stand, and (b) their behavior off the stand.

On the stand.

 The key to the effectiveness of witnesses is for them to tell their stories in a believable and understandable manner.  Prior to the witnesses' testimony, remind them of the key presentation points that were uncovered and developed during their preparation.  In addition, several recommendations will further a witness obtaining the goal of being an effective witness.

Be sincere and confident.  One of the most important determiners of whether jurors believe witnesses is the degree to which jurors perceive them to be sincere and confident in what they have to say.  Being confident, however, does not mean being rigid.  Witnesses should be willing to admit uncertainty, particularly on minor points.  There is no need for the witness to lose credibility by rigidly adhering to minor points, only to be later proved to be wrong.  If witnesses are confused by a question, they should ask for clarification before attempting to give an answer. 

Remain calm.  A moderate degree of relaxation fosters credibility.  As such, witnesses should remain calm.  Similarly, witnesses should refrain from arguing with opposing counsel.

Tell the story to the jury.  The role of the witnesses is to tell what they know—their stories—to the jury.  Witnesses should turn to face the jury in giving their testimony.  Move the microphone to allow witnesses to comfortably face the jury.

Dress appropriately.  Witnesses should dress conservatively, projecting an image of respect for the court.  Witnesses' clothing and accessories should reinforce the image that the attorney wants to project.  For example, patrolmen should appear at trial in uniform, not in “street clothes,” if the attorney wants to capitalize on the “badge and gun” image of policemen protecting the public from danger.

Off the stand.  

Witnesses can still influence jurors when they are off the stand.  In the spectator's section of the courtroom, hallways, elevators, and restaurants, jurors will observe—and evaluate—witnesses when they see them.  As such, witnesses should be instructed to be on guard whenever they are in places where jurors might observe them.  Witnesses should not do anything inconsistent with their image at trial.  A witness who professes remorse or sadness on the stand but is seen laughing in the hallway during the next recess will not be viewed favorably by jurors.

Conclusion

Creating effective witnesses requires attention to preparation and to the on--stand and off--stand behavior of witnesses.  Combining good listening skills and the observation of nonverbal behaviors along with conducting practice examinations with positive and negative feedback serve as the fundamentals of witness preparation.  At trial, attorneys should remind witnesses as to how they can be most effective on the stand in light of the preparation efforts and the basics of how they should appear on the stand.  Finally, attorneys should discuss with the witnesses their actions off the stand in order to guard against any of the witnesses acting in ways that will detract from their testimony.

Readers who want additional information on the topic of maximizing witness persuasiveness should consult two past issues of the newsletter from the Persuasion at Trial series (Direct Examination and Cross--examination).

About the editor:

Jeffrey T. Frederick, Ph.D., is the Director of Jury Research Services for the National Legal Research Group. He has consulted with attorneys since 1975 on jury selection, case preparation, and trial presentation issues. He is a frequent speaker at continuing legal education programs across the nation. His publications include two books, Mastering Voir Dire and Jury Selection: Gaining an Edge in Questioning and Selecting a Jury (ABA Press, 1995) and The Psychology of the American Jury (Michie Co., 1987), and a number of articles on the topics of voir dire, jury selection, and persuasion. Those interested in information on jury research services are encouraged to call 1-800-727-6574.

LET US HELP YOU IN YOUR NEXT JURY TRIAL We know jury trials. We offer a broad range of services including basic case evaluation, voir dire development, evidence and argument preparation, jury selection, focus groups, trial simulations, and jury surveys. All service packages are tailored to meet your litigation needs given the resources available. For more information call Dr. Jeffrey Frederick, Director of Jury Research Services, at 1-800-727-6574.