Do You Look Dishonest?

How to avoid looking like a liar

Let’s start with a few assumptions about the witness in your next case.

First, let’s assume that your witness saw everything relevant to the case.

Second, let’s assume that your witness has a good memory and a good vocabulary, so she’ll be able to remember and describe everything that she experienced.

And finally, let’s assume that she’ll tell the truth.

With all of those assumptions, you probably think that your jurors will automatically believe her, right?

Wrong.

The sad reality of the situation is that, even if your witness is telling the truth, that’s not enough to guarantee that your jurors will believe her.  That’s because, even though she’s telling the truth, she can still look like she’s lying.  And if your jurors think she’s lying, then she is.

As the trial lawyer, it’s not enough for you to stick a witness in the witness stand and have them tell the truth.  You need to help your witness avoid looking dishonest.  Here are some of the behaviors that jurors will be looking for when deciding whether or not a witness is telling the truth:

  • Touching your face.
  • Stroking your hair
  • Playing with your jewelry or a watch
  • Wringing your hands
  • Rubbing your palms on your legs
  • Pursing your lips
  • Blocking your eyes (closing them tightly, covering your eyes with your hands)
  • Turning your body away from the questioner
  • Evading the question; not giving direct answers

Finally, eye contact is going to be one of the most important behaviors that jurors will evaluate when deciding whether or not to believe your witness.  Most of us have been raised on the adage, “Never trust someone who won’t look you in the eye.”  Of course, in some cultures, making eye contact is disrespectful, so lack of eye contact, on its own, isnt enough to determine whether or not someone is lying.  However, if your witness is maintaining eye contact during other parts of testimony, it’s probably going to seem like they’re lying if they suddenly stop making eye contact during the more damaging parts of their testimony.  But the converse is true, too.  Sometimes liars know that they’re not looking at you, so they’ll overcompensate and stare at you.  When you’re on the receiving end, it feels creepy.

While it’s impossible to completely re-vamp your witness’s body behaviors (since she’ll end up acting artificially, which means the jurors will assume she’s lying), at least you can help her to minimize some of the more obvious negative body language.

One of the best ways to help your witness understand how body language affects their credibility is to videotape them during a mock cross-examination or mock trial run, and then have them sit and watch the entire video from beginning to end.  Many witnesses have never seen themselves on video before, so they’ll be surprised at how distracting some of their behaviors appear.

Obviously the subject of how body language affects credibility is too large a topic to cover in a single article, so if you’re serious about helping your witnesses understand how body language affects their credibility, check out these books for some good pointers on how to identify dishonest body language:

Never Be Lied to Again, by David Lieberman

What Every Body is Saying, by Joe Navarro

Telling Lies, by Paul Ekman

Quick and Easy Trial Graphics

How many times have your witnesses found themselves at a loss for words while trying to explain what happened to them or trying to explain what they saw?  It happens more often than you’d like, doesn’t it?

Early in my career, I was defending a motion to suppress in a Driving Under the Influence (DUI) case.  The issue was whether or not the police officer had a valid reason to stop the defendant’s car.  When I asked the officer about the reason for the stop, he told us that the defendant had made a “wide turn.”

“Could you explain that for us a little better, so that we understand what you saw?”

“He made a ‘wide’ turn.  It was a lot wider than a normal turn — he went out of the normal pathway for a turn, way out of the way, almost driving off the roadway.  I’m not sure if I’m doing a good job of explaining what I saw, but when I saw him make the turn, I thought he was out of control and a danger to other drivers on the road.”

He was right — he wasn’t doing a very good job of describing what he’d seen.  Even though the picture in his mind was perfectly clear, neither the judge nor myself could ‘see’ what the officer had seen.  If I didn’t help him paint a clear picture, we were going to lose the motion, and we would lose the case.

That’s when I had a bright idea.

I took a magic marker out of my trial toolbox, walked over to the flipchart, and drew a quick sketch of the intersection the officer had been describing.

Hand drawn Intersection

“May the witness step down the witness stand, your Honor?”

Intrigued, the judge said, “Officer, you may step down.”

Taking a business card out of my wallet, I drew a large arrow on the back of my card and handed it to the officer.  “Officer, pretend that this is the defendant’s car, with the arrow pointing in his direction of travel.  Please show use exactly what you saw when the defendant made this ‘wide’ turn.”

In an instant, any doubts about the validity of the stop were removed.  Using a crude, hand-drawn exhibit, the officer was able to show everyone exactly what he’d seen and exactly why he’d stopped the defendant’s car.  My opponent tried to cross-examine the officer, but wasn’t able to cast any doubts on the officer’s version of events.  Thanks to poorly drawn artwork and a makeshift prop, we won the motion.

But if lousy artwork and a business card can save the day, just imagine what you can accomplish with a little time and effort.  Here’s a quick and easy to create inexpensive courtroom exhibits that will help your witnesses tell their stories and show the jury exactly what happened.

Start by printing a large (30″ x 40″ is a good starting size, bigger is probably better) image of your scene.  Maybe it’s an aerial photograph of the apartment complex, the layout of the emergency room, or a map showing the fatal roadway or intersection.

Intersection

EXAMPLE OF AN INTERSECTION AERIAL VIEW

After you’ve printed out your image, you’ll want to give it a magnetic backing. You can either purchase magnetic backing (it’s easy to find, just do a Google search for “Magnetic Adhesive Sheeting” and you’ll find tons of suppliers) or you can temprarily attach your image to a magnetic board, such as a magnetic dry erase board.

Once your image has a magnetic back, you can use small magnetic figures to “show” the jurors exactly where the collision took place, where the doctors and nurses were positioned, or where everyone was standing when the fight broke out.

For your “actors,” you’ve got two different options.  The first option is to print photos of the cars, the doctors’ faces, etc., attach magnetic backing to the photos, and then let your witnesses play.

Railroad model figurinesThe second option is to use 3-D figurines.  You might be tempted to use your old Star Wars figures (“I’ll use Luke Skywalker for my client, and the role of my opponent will be played by Darth Vader!”), but it’s probably better to check your local hobby shop or shop online for a wide variety of scale size replicas.  A quick search in the Google Images library will turn up hundreds of figures in all shapes and sizes.  You’ll find office workers, cars, outdoor workers, trucks, teenagers, travelers, police officers, animals, fire fighters, nudists…  Whatever you need, they’ve got it!  Attach a small magnet to the bottom of each figurine, and you’ve got an instant exhibit that will help your witnesses tell their story.

A quick note about scale: There are plenty of different sizes available.  Hobby shops will have sizes running from 1:220 (Z scale), to 1:87 (HO scale, the most popular model train size), all the way up to 1:12 (dollhouse size).  Don’t worry about matching the scale exactly — after all, this is a demonstrative exhibit, so the evidentiary requirements aren’t as strict.  Find one that’s big enough for your jurors to see, and then use a consistent scale for all of your elements.  You can’t use a “Z” scale train to represent your poor defenseless client, and then use a 1:12 scale monster to represent your opponent.  It might be fun, but the judge won’t permit it.

By using these quick and easy exhibits, you’ll make it easier for your witnesses to tell their stories.  Not everyone can adequately describe the images in their heads or put thoughts into words.  But if you give them some tools to help them tell their story, they can show you (and your decision maker), exactly what they saw.

Practice with your courtroom props!

Kiefer Sutherland as Jack BauerJack Bauer may be an expert with firearms, but Kiefer Sutherland, the actor who portrays him on the hit show 24, isn’t.  To make sure that the character looks like he knows what he’s doing when he handles a weapon like the Sig Sauer P228 9mm (either with or without the silencer), you can bet that Kiefer spent a significant amount of time familiarizing himself with the prop before they started filming.  Before your next trial, it’s essential that you familiarize yourself with your props, too.

“Wait a second,” you say, “What props?  My trials aren’t like the ones on Court TV.  I’m not bringing any ‘props’ into the courtroom.”

Yes, you will.  Whether you know it or not, during your next trial, you will be handling a variety of props.  Every exhibit and demonstrative aid that you’ll show the jury is a prop.  The computer and the projector that you’ll use to display images are props.  Even the lectern where you’ll place your legal pad is a prop. 

Your goal is to make sure that your prop handling doesn’t interfere with your case presentation.  You don’t want the jurors focusing on your props or how you present the information — you want them focusing on your images and on your client’s story.  To avoid looking incompetent or unprofessional during your next trial, you need to spend some time practicing with your props.   If you don’t, you run the risk of destroying the flow of your presentation or appearing foolish and clumsy.  Here are a few guidelines to ensure that your props enhance the presentation of your case.

Keep your props close at hand.  In every theater performance, the stage manager is responsible for ensuring that all of the show’s props are in place and ready to go.  Behind the scenes, they use a different “prop table” to hold the props for each act.  The prop table is covered with butcher’s paper, and then they draw an outline of each prop on the table, so they can immediately tell whether or not all of the necessary props are present.

During trial, if you’re unable to locate your exhibits or don’t know whether or not they’ve been admitted into evidence, you can lose your mind.  Luckily, you can use something similar to a prop table to guarantee that you have all of your exhibits for trial and that they’re properly admitted into evidence.  The best resource to use is an exhibit list where you’ll list every item that you intend to introduce.  You can download a sample copy here:https://trialtheater.com/documents/Exhibitlogs.pdf

Present your props for maximum impact.  How you handle an object affects how the jurors will perceive it.  If you treat it with reverence and respect, the jurors will think it’s more important than if you carelessly toss it about.  When you treat the firearm as if it’s loaded and eager to kill someone (perhaps even refusing to touch it, asking the bailiff or a law enforcement witness to display it to the jury), jurors will think it’s more dangerous than if you treat it indifferently or wave it about carelessly.  If you ask your witness to put on a pair of latex gloves before displaying a baggie of cocaine to the jurors, you can subtly send a message, “This stuff is dangerous – you don’t want to touch it.”  What message do you want your exhibit to send to your jurors?  Think in advance about how you’ll handle your evidence, so that you send the right message.

Know how the prop is supposed to work.  Play with the flipchart holder until you’re confident it won’t collapse in the middle of your closing argument.  Fiddle with the scale model until you know that it will work the same way every time you demonstrate it.  Mark your photos and charts so you can instantly tell which side is up.  A small amount of extra effort ahead of time will prevent you from stumbling or bumbling with your props during trial.

Make sure they can see your props.  Can the jurors see your exhibits?  Can they see over the rail of the jury box to examine your scale model?  Is the print on your poster large enough for that octogenarian juror to read?  Are the fluorescent lights creating a glare?  Do you need to adjust the blinds so that the sun doesn’t shine in their eyes?  Is your prop hidden behind the lectern or behind the witness stand?  Are you or your witness standing between the jurors and your prop?  Remember, if they can’t see your evidence, it doesn’t exist.

Elliott with an AK-47Be comfortable with your props.  The courtroom can be a dangerous place, especially in criminal court where it’s a regular occurrence to see kilos of cocaine or semi-automatic firearms introduced into evidence.  If you’ve never seen or handled these types of items before, your body language can affect your presentation of the evidence, especially if your hands are shaking when you publish the exhibit to the jury.  Take some time before trial to learn how to handle them safely and comfortably.

Practice with the computer projector.  By the time you get to court, it’s too late to discover your computer can’t talk to your projector or that you’re missing the connecting cables.  Get to the courtroom early to hook up your laptop, set up the screen, focus the image, and make sure everything works.  Since you’re early, go sit in the jury box and make sure you can clearly see the screen.  If you’re not using the projector until later in the trial, learn how long it takes to power up so you can turn it on before you need it.  Make sure you know how to switch the input from your laptop to your DVD player.

Practice with your laptop.  There’s a story (probably apocryphal) about an investigator who was delivering a PowerPoint presentation to a group of FBI agents.  Unfortunately, after connecting his laptop to the projector, he opened the wrong file, and unintentionally shared his collection of child pornography with more than 150 FBI agents.  (Supposedly, he was arrested on the spot and everyone broke early for donuts).

You won’t have anything that extreme on your computer, but you may have exhibits that haven’t been admitted into evidence yet or case notes you don’t want your opponent to see.  Invest some time cleaning up your computer desktop and label all of your folders appropriately, so you don’t accidentally open the wrong folder or file.  (If you have any doubt about whether you’re opening the correct document, simply place a piece of paper in front of the projector to black out the screen until you’ve found the correct document.)

Make sure your laptop is plugged in.  A few years ago, I was watching a community theater show that was using a laptop computer to present photos, audio, and video recordings above the stage.  The imagery and sound were integral to the successful presentation of the show.  Before the show started, the technician checked to make sure it was plugged it, but sometime during the performance, the power cord came unplugged.  At first, no one noticed, because the computer continued playing on battery power.  But then, halfway through the final act, the video (which was integral to the act) suddenly winked out and died! 

Don’t let the same thing happen during your trial.  You don’t want to reboot your laptop during closing argument or scramble for a power solution halfway through your direct examination.  Your laptop has an indicator which tells you if the computer is plugged in or running on battery power.  Make sure you know where it is so you can occasionally monitor it during trial.

Used effectively, props can dramatically enhance the persuasiveness and memorability of your case.  Invest time and effort learning how to properly handle your props, and your case presentation will be smooth and worry-free.