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Witness Credibility: A multi-dimentional construct
The Advantage: 5.07: V.4, 1st edition
Anyone who has tried enough cases has probably learned what is meant by the adage, “Even the best case can be lost when a witness fails on the stand.” The days following a trial where this has happened are often consumed with trying to assess what went wrong. This is particularly true when you prepared your witness on the facts and substance of the case. Where many attorneys fall short on preparing witnesses is failing to consider how a jury will perceive a witness. This is often due to attorneys erroneously concluding the jury will interpret the testimony the way they themselves have. In litigation, regardless of whether the message receiver is a judge, jury, mediator, or arbitrator, attention should be heavily focused on how the witness’s message will be interpreted. This is not to suggest the trier of fact does not evaluate the content of testimony seriously, or often in similar ways to attorneys. However, prior to doing so, they will evaluate the credibility of the witness and, in the absence of credibility, the content of testimony loses much, if not all, of its persuasiveness.
Persuasion theory has consistently upheld the notion that people routinely adopt the shortest, sensible route to a conclusion unless significant motivation exists to do otherwise. Consequently, the credibility of the witness offers a psychologically satisfying device by which the trier of fact can avoid having to cognitively process the complex messages that are often communicated in witness testimony. Furthermore, what one says is often not as important as how it is said. The witness with the most important message will not be successful in persuading the jury if he or she does not deliver the message effectively.
Credibility is not an innate quality of a person, but rather a construct of communication that is evaluated and judged by the receiver of the message. Few topics of communication have received as much attention as source credibility as scholars have tried to identify the criteria by which credibility is judged. The answer lies in what the trier of fact sees, hears, and perceives about a witness. Judgments are influenced by the way a witness sounds, looks, and acts when testifying. Whether juror or judge, humans make credibility assessments on many other factors than the words spoken by witnesses.
Communication research has yielded numerous studies on the construct of credibility. A quick glance at the studies shows a variety of dimensions comprising credibility. Though not exhaustive, the list includes the dimensions of competence, trustworthiness, composure, likeability, intelligence, extroversion, honesty, convincingness, intention, personality, and authoritativeness. The factors that have been most frequently identified as germane to courtroom assessments of witness credibility are expertise, trustworthiness, and dynamism (Insert puzzle graphic showing these three factors – it’ll have to be redone so that there aren’t the five current pieces).
Expertise pertains to how well the witness knows what he or she is talking about. Trustworthiness pertains to the witness’s character, specifically perceptions of honesty. Dynamism pertains to how charismatic a witness is. Judgments of the witness’s credibility are based in large part on witnesses’ nonverbal cues. Fortunately, many of the cues associated with expertise, trustworthiness and dynamism overlap, which means that recognizing and honing certain nonverbal communication patterns can dramatically enhance credibility.
For example, when jurors perceive a witness as an expert, they believe the witness is competent in that subject. Nonverbal cues that indicate authority include direct and strong eye contact with an audience, high vocal volume, low pitch, and a moderately fast speaking rate.
When jurors believe a witness is trustworthy, they conclude the witness is telling the truth. Communication research has consistently shown nonverbal communication cues indicating extroversion and involvement are associated with honesty. This includes forceful and rhythmic gestures, strong eye contact with the audience, higher vocal volume, faster speaking rate, somewhat relaxed posture, affirmative head nods, minimal self-touching (of the mouth or face) and avoidance of non-fluencies (use of “ums,” “ands” and “uhs”).
Dynamism, or charisma, is displayed through nonverbal variety. Unlike a witness who uses a monotone style, the dynamic witness varies vocal pitch, rate, intonation, volume, and uses a variety of hand gestures and facial expressions. Not only is a boring witness often a less credible witness, he or she effectively becomes a non-existent witness as jurors and judges have difficulty even recalling the testimony.
Most studies show communicators who are extroverted, involved with their audiences, positive, and moderately relaxed are perceived as more credible and persuasive than those who do not. Going over the facts and evidence is a good start, as it will help increase a witness’s recall, which might lead to greater comfort on the stand. However, practicing testifying, and more specifically, practicing with audio and video feedback so both the attorney and witness can observe and evaluate where his or her natural nonverbal communication patterns can be enhanced, is essential.
Success on the stand begins and ends with witness credibility. Fortunately, something can be done about it by planning ahead and practicing.
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