TELLING THE TRUTH WELL AND WITNESS PREPARATION: CONTROLLING FALSE “CONFESSIONS” AND MISPERCEIVED DEC

We are in a “Golden Age” of television, so feel free to sit back and enjoy the quality of characters and stories offered. But it is not all just entertainment. Recently, I was watching HBO’s new limited series The Night Of. The show, set in New York City, is about a young Pakistani college student named Nasir who is arrested for the brutal stabbing death of a wealthy, but certainly troubled, young White woman. The Reddit discussion of themes, symbolism, and implication of the events in the show led me to an article titled, “The Interview: Do Police Interrogation Techniques Produce False Confessions?” in the New Yorker. The piece was a cogent critique of the so called “Reid Technique” of eliciting confessions, a method seemingly utilized by Detective Box in his interrogation of Nasir. The key principle of the Reid Technique is starting off the interrogation with a Behavior Analysis Interview to determine if a suspect is lying. It begins with non-threatening questions to establish a base-line for the assessment. Then, the interviewer may switch to loaded or baiting questions, for example, to break the suspect down and provoke responses. For example, a suspect rubbing their eye or darting their eyes down to answer are behaviors that set an interrogator off on a path to conclusions; they are deception cues in the eyes of interrogators. A key critique of the Reid approach is that the assessment and interpretation of nonverbal behavior is a cornerstone component of the interview technique, and the prevalence of misreading nonverbal behaviors is high.

As I was reading this article, I reflected on the work trial consultants do in witness preparation for deposition and trial testimony. As the article points out, “three decades of research” on the interpretation of nonverbal signs indicates that, “… people have little more than coin-flipping odds of guessing if someone is telling the truth.” But, as people (and jurors), we all have great confidence in the accuracy of our interpretation of witnesses’ nonverbal behaviors. The impression can be wrong, but once the impression is formed (an element of the critique of the Reid method), then confirmation bias takes over. Subsequent answers, behaviors, and facts all feed the initial, potential misconception. And it is because of this inherent problem that we do so much witness preparation. Our goal is to help witnesses “tell the truth well,” so that they testify in a way that reduces the chances of misinterpretation and misunderstanding, and reduces the chances of mischaracterization and misuse by opposing counsel. Although not the sole focus of our witness preparation sessions, nonverbal behavior is a significant component when evaluating witness communication.

Much of our focus in preparation is helping witnesses become aware of nonverbal behaviors that can accidentally be misperceived as deception cues. Sometimes it involves practice designed to make witnesses feel more comfortable with their testimony so that their anxiety and nervousness are lessened, reducing the chance of these cues being misperceived as signs of planned deception. Often the sessions are focused on the consultant listening to the story, identifying the key elements of the testimony most compelling and efficient, and then making sure the witnesses know how their nonverbal behavior can accentuate this key headline testimony.

In one recent witness preparation session, we noticed that the key witness’ hand shook as he held documents. To a juror this may be perceived as nervousness and a deception cue. When asked, the witness explained that the shaking was physiological, not psychological. One question near the start of direct exam cleared the possibility of this being seen as a deception cue as the witness simply explained his condition. This allowed jurors to focus on the content of his testimony, not the potential distraction and accompanying false read of his involuntary nonverbal behavior.

In one trial, we were conducting a shadow jury in a defense of misappropriation of trade secrets claim. Our key defendant was on the stand Thursday and was agitated and defensive under adverse questioning. The shadow jury interviews that night revealed that jurors felt this behavior was defensive – it was a cue to them that he was hiding the fact that he had misappropriated the trade secrets. That weekend was devoted to witness preparation and to controlling his emotional displays so that these would not distract from the content of his testimony. Our questioning Monday morning started out very simply. In essence, question one was, “Were you angry last Thursday when answering questions from opposing counsel?” The answer: “I have been a scientist for years, an academic for years, and ethics and integrity are the most important things I have. I have never had my integrity questioned like this, so yes, I was angry, frustrated, and hurt.” Not only was the witness more emotionally reserved that day, but the anger expressed on the prior trial day, and even the few moments of frustration on Monday, were given an explanation. The source of the emotion was identified and it was not based on an origin of defensiveness because he was “caught.” As my father would say to me, the anger came from “an honest place.” The ratings of the witness from the shadow jurors improved substantially; they all opined some version of, “I understand why he would be angry, they are attacking his ethics.”

Gestures and movement in testimony are not only elements that can be employed to reduce misunderstanding and misapprehensions, but they can also be used to enhance the clarity of the visual message. In another instance, the preparation session focused on having the witness explain a process of an employment termination decision with their hands. Their testimony was that the employee had simply “crossed too many lines,” “violated too many boundaries,” and, “stepped out of bounds repeatedly.” The witness drew an imaginary line, not once, but twice as they articulated their testimony. They moved their hand, indicating that the left hand was the plaintiff, moving the hand away from their body when describing their choice of “going out of bounds.” The spatial metaphors in the language of the witness’ testimony were given additional life and meaning by simple nonverbal movements. Lines were crossed; the former employee went out of bounds, away from decent, civil, and appropriate behavior in the workplace. And jurors remember better what they not only hear, but what they see and hear together. Since language is a relatively new human invention, the use of gestures related to space, lines, and scope, in this instance, can have a deeper and more memorable impact on a jury, helping jurors remember the inappropriate behavior of the employee.

We had one witness, a manager in a workplace violence and termination case, who was having such difficulty testifying on the stand in the mock courtroom that we were not sure what to do. We talked about what makes him comfortable and uncomfortable. He was scared of public speaking, felt constrained on the stand. The perception of such testimony could easily be that he was not confident in his account of the situation, facts, and evaluation of his own actions. Through our conversation, we learned that he was a junior varsity high school football coach. He felt more comfortable talking as he moved. So, we made a large board of the workplace layout and asked him to take us through, point-by-point, using the diagram. The witness relaxed and the confidence in his expressions (his behavior, vocal tone, gestures) shot through the roof. In essence, we allowed him to walk up and down the sidelines with the questions and answers in the testimony, talking to jurors (his team), and it dramatically reduced the anxiety that could have led to low witness credibility.

Much of what trial consultants and jury consultants do in witness preparation is reduce the likelihood of misinterpretation, misunderstanding, and misuse of testimony. The goal is to make sure the content of core witness testimony is not forgotten, ignored, or dismissed because a jury is misreading or misinterpreting the nonverbal behaviors of a witness. It is about listening to witnesses tell their story and making sure they use their vocal tone, body posture, and nonverbal gestures to advance their testimony, making the testimony more meaningful, memorable, and material to jurors.

Nasir did not have the luxury of such training, and like the trial attorney, the detectives live in the realm of interviews and examinations. Most witnesses do not have such training either, and are too often left on their own, without the competence and confidence that can come from mock examination practice and the feedback and assistance of a communication expert. So, did Nasir commit the crime? Spoiler alert! Just kidding. You will have to tune in to this outstanding series and find out for yourself.