Persuasion at Trial: Direct Examination
This issue is the second part of our five-part series on persuasion at trial. In it we will address the topic of direct examination. While a great deal has been written about direct examination, the present discussion will focus primarily on persuading the jury. We will consider several topic areas: credibility, demeanor and speech style, content of testimony, and timing and order of witnesses. While we consider a number of general recommendations, they should not be viewed as exhaustive and should be tailored to meet the needs of the situation.
A key to the overall impact of witnesses is the jurors' perceptions of how credible they are. For witnesses to be credible they must be perceived as (a) having knowledge of the "correct" state of affairs (through either expertise or experience) and (b) being motivated to report their knowledge accurately (having a desire to tell the truth). Deficits in either of these components severely hamper the persuasiveness of the witness.
It is important that attorneys demonstrate that the witnesses have the requisite knowledge or expertise to give an accurate report on the state of affairs. For expert witnesses, the attorney should have these witnesses actually present their credentials and not stipulate as to their qualifications. Jurors need to be impressed with the expert's qualifications. For lay witnesses, the attorney should lay the groundwork for why these witnesses should know about what they will be reporting. What is it that gives these witnesses reliable access to the desired information?
To meet the second component of credibility—truthfulness—attorneys must demonstrate that the witness has no motivation to be untruthful. Credibility is enhanced by showing that there is no conflict of interest or other biasing motive for why the testimony is being given. The greater the number of reasons for why testimony is being given—beyond a desire to be truthful—the less persuasive the claim of truthfulness is. Beyond eliminating potential reasons for bias, showing that a witness is testifying against his own best interest also enhances credibility.
Finally, it is important for jurors to be convinced of the witnesses' credibility early in their testimony. Early establishment of credibility inhibits the rejection or dismissal of testimony given near the beginning of the examination. In addition, any problems with credibility should be addressed at the end of direct examination. By waiting until the end of direct examination, the attorney can take steps to defuse the impact of anticipated cross-examination. Also, the attorney does not want to lessen the impact of the witness's testimony by raising the credibility problems earlier, which could lead jurors to question the testimony while it is being given.
Preparation, Demeanor and Speech Style
The ability of witnesses to communicate testimony in an effective manner is influenced by how prepared they are and by the demeanor and the speech style they present.
Preparation. A key to insuring that a witness will be as persuasive as possible is preparation. Preparation should take several forms. First, the witness should be prepared for what will happen on direct and cross-examination. Some authors reject the idea of conducting a "dry run" or mock examination with critical witnesses, claiming it destroys spontaneity and fosters the look of rehearsed testimony. However, the greater fear should be that the witnesses' nervousness over their testimony should lead them to exhibit cues which are mistaken by the jurors as reflecting deception or lack of confidence in their testimony. I recommend that critical witnesses be prepared in such a manner. In this way, the attorney has an opportunity to identify and remedy undesirable verbal and nonverbal behavior. This suggestion does not mean that the testimony should be rehearsed—it should not. Simply, it means that witnesses should be sufficiently prepared for the experience so that they can communicate their testimony in an effective manner consistent with the image that the attorney wants to project.
Second, the witness should be familiar with any exhibits that will be used and how they will be used in the courtroom. Jurors can react very negatively to an expert making simple mistakes when using exhibits at trial. This problem is minimized with advance preparation.
Third, witnesses should be given direction in how they should dress. Witnesses should dress conservatively, projecting the image of respect for the gravity of the situation. Witnesses should not overdress or wear clothing that is inconsistent with their economic background or the image that the attorney wants to project.
Fourth, witnesses should be instructed on how they should conduct themselves when not on the witness stand. Jurors watch witnesses while they are not on the stand—at lunch, during breaks, and in the courtroom. Witnesses who behave inappropriately during these times (e.g., joking and laughing at times when the general mood is somber) can be viewed in a negative light by jurors.
Nonverbal behavior. There are several aspects of a witness's nonverbal behavior that influence positive perceptions of his or her credibility. These include eye contact (with questioner and jurors), involvement (e.g., gestures and illustrations concerning the testimony), moderate relaxation, minimal use of purposeless gestures (e.g., hand-wringing and grooming), a moderate to slightly fast speech rate, fluent speech, and a conversational delivery style. Witnesses who do not exhibit these types of nonverbal behaviors tend to be viewed as less credible. For example, a witness who looks downward during examination— thus failing to look the questioner in the eye—loses credibility. This would also apply if the witness is unable to make eye contact with jurors when he is telling the jury his story. In this latter example, it would be important that structural features such as microphone placement in the witness box do not deter from enabling the witness to address the jury.
Speech style. The verbal characteristics of witnesses' testimony also play a powerful role in their persuasiveness. Witnesses using a less assertive style of speech (referred to as "powerless speech") are viewed as less credible. Powerless speech style is characterized by hedges (e.g., "I think," "kinda," or "I believe"), intensifiers (e.g., "so," "too," or "very"), and rising intonation at the end of a statement. More direct and powerful speech enhances credibility. It should be kept in mind that witnesses from lower socioeconomic groups tend to use a powerless speech style more frequently. Attorneys need to be aware of this possibility when using such a witness and should take appropriate steps to minimize this speech style during the testimony.
Beyond the speech and demeanor characteristics of witnesses, attorneys also should capitalize on various aspects of the content of the testimony. The testimony should be organized, clear, and designed to portray the desired impact.
Word choice. In addition to the speech style, the words chosen to portray the testimony can influence the effectiveness of the testimony. Words contain different "loadings." These loadings influence how the listener views what is being described. For example, describing an automobile accident between two cars as the first car having "bumped," "collided," "crashed," or "smashed" into the second car carries widely different mental pictures as to the degree of force and resulting damage involved in the accident.
By paying close attention to the key words chosen by witnesses, attorneys can insure that these words convey the desired psychological impact.
Hypotheticals/anecdotes/examples.Testimony also can be made more persuasive by judicious use of hypotheticals, anecdotes, and examples. These tools have a variety of benefits. They help jurors to organize and clarify the information that is being presented. This clarity and organization leads to a greater understanding of what is being said. A well-structured hypothetical used by an expert shows jurors what is important to know and what is not so important. Anecdotes and examples provide a concrete representation for what is being said. This "concreteness" can be enhanced by using demonstrations in court to illustrate testimony. Finally, anecdotes and examples have the additional benefit of being more powerful than probabilistic information. For example, suppose that a medical expert testifies that, based on empirical studies, the probabilities of a class of individuals being at risk is fairly low. A second medical expert testifies that in his practice he has treated several individuals from the critical class who suffered from the particular ailment and concludes that the risk factor is much greater. Jurors are more likely to be influenced by the second expert, ignoring the first expert's more accurate estimate of risk.
Giving details. Finally, having witnesses provide details during the course of their testimony can make them more credible. Providing details gives the jury the impression of greater knowledge than if the witness fails to provide details. For example, a witness who says, "I remember seeing the report. It was lying next to the red 'out' tray on the table" is more likely to be believed than a witness who says, "I remember seeing the report somewhere on the table." Obviously, a witness should not give so many details that the testimony becomes dull and boring. However, a few details can greatly enhance the witness's persuasiveness.
Timing and Order of Witnesses
Let us turn to some final comments regarding the general order of witnesses and when witnesses should testify. Order as it pertains to witnesses can take two forms, gross order and internal order. Gross order refers to the order of witnesses—who should go first, last, or in the middle. Internal order refers to those parts of the testimony that are strongest and weakest, and where they appear in the testimony. Considerations of order naturally lead to what we discussed in the previous issue of the Update, primacy and recency effects. Primacy effects refers to the greater impact of material encountered first while recency effects refers to the greater impact of what is encountered last. While the conditions for the predominance of primacy or recency effects are complex, it is apparent that information encountered in the middle is remembered least well.
The inherent weakness of information presented in the middle of a presentation leads to the conclusion that both gross order and internal order are best structured in a strong--weak--strong fashion. That is, the general order of witnesses ideally should be one where the case-in-chief starts with a strong witness(es), proceeds with weaker witnesses, and concludes with a strong witness(es). For internal order, witnesses should start with some aspect of their testimony that is strong and should end with testimony that is strong. For example, an expert witness should start with reciting his impressive credentials and then make a strong statement of his opinion. The middle portion of his testimony will contain the basis of his opinion. The testimony should conclude with a strong restatement of his opinion. In this manner, the witness takes advantage of the presence of primacy and recency effects.
Finally, during the course of the day, the jurors' attention will vary widely. At the beginning of the morning session, after lunch, and immediately after recesses, the jurors' attention is usually at its highest. Late morning and late afternoon usually find the jurors' attention levels waning. Given these natural fluctuations in attention, it would be desirable to consider the placing of crucial witnesses to coincide with higher attention levels, if logistically possible. It is also important to consider the placement of “dry” but important testimony at times when attorneys will not be fighting natural low points of attention.
Direct examination is the vehicle by which much of the basic information is conveyed to the jury. Attorneys can make their witnesses more effective by considering the basics of witness credibility, preparation of witnesses, the demeanor and speech style of witnesses, the content of their testimony, and the timing and order of witnesses. The general recommendations contained in this issue can help make for a more persuasive direct examination.