Category Archives: Direct Examination

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Do You Look Dishonest?

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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

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Why should jurors believe your witness?

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Why should jurors believe your witness?

“I saw the defendant sitting at the table.   Suddenly, he reached over to the next table, grabbed the salt shaker, and threw it at the stage.   The shaker hit the lead singer in the left eye, who screamed and fell off the stage, holding his eye.”

If you were trying to prove that the defendant had hit your client with a salt shaker, would this be enough proof?   Or would the jury have some doubts about the testimony?   If this were the only testimony the jury heard, consider the questions they might have about the testimony:

  • “Why should we believe him?”
  • “How do we know he saw what he says he saw?”
  • “Where was he located when he saw the shaker thrown?”
  • “What is his ability to remember or recollect the events?”
  • “Why was he paying attention to the defendant rather than watching the stage?”
  • “What was the lighting like? How much could he see?
  • “Is there any history between the witness and the defendant?”
  • “Were there any obstructions between the witness and the defendant?”
  • “How close or far away was he when the shaker was thrown?”
  • “Does he have any interest in the outcome of this trial?”

And that’s before he’s even cross-examined! Why do they have so many questions? Because you didn’t take the time to establish the witness’s vantage point – his ability to see, hear, or know the things about which he testified.

Consider a situation where a single event would generate thousands of vantage points:

It’s the playoffs and you’re watching your favorite football team.   If they win this game, you’re going to the Super Bowl.   Your team is trailing by five points, there are two seconds left, and this is the final play of the game.   After hiking the ball, the quarterback dodges a tackler.   He scrambles, hoping to find an open receiver.   Looking downfield, he lets loose and throws a 60 yard bomb.   Your star receiver breaks free into the end zone and leaps higher than he’s ever leaped before.   Reaching out while in flight, he makes a perfect, one-handed catch!

But then, you see the referee.   He’s waving his arms and signaling that the receiver caught the ball out of bounds.   The game is over – your arch rivals have won, and they’re going to the Super Bowl.   You and 65,000 other fans in the stadium erupt with rage.   “You’re blind, you rotten ref!” is the nicest comment you would hear.

But a moment later, watching the replay on the Jumbo-Tron, you see the receiver’s left foot land on the white stripe.  The referee was right – the receiver was out of bounds when he came down with the ball.

Unfortunately, in trial, we never get the benefits of an instant replay.   To best tell our witness’s story, we need to show why they have the ability to see, hear, or know the things they’re testifying about.   If you were telling this same story to the jury, you wouldn’t start by having the referee describe what he saw to the jury.   You’d start by showing that the referee was in the best position and had the best ability to see what happened.   Here are some of the things you’d want to establish before he told the jury about the catch:

  • What is his ability to see?   Does he have 20/20 vision?
  • How close was he to the action?
  • Where is he trained to position himself on the playing field?
  • What is he trained to look for?
  • Why is it important that he follow his training?
  • Where was he positioned?
  • Were any other players in his way?
  • Where was his attention focused?

By highlighting his ability to observe before asking him what he saw, the jury can place greater weight on his testimony.   In your case, consider the strength of your witness’s vantage point.   Does the witness have any special skills that helped them view, remember, or interpret the event? Does the witness have any special training, perceptive skills, knowledge, experience, or unique skills that allow them to see these events better than the ordinary person?   If so, teach the jury about those skills before you ask him what he saw, and your jury will understand why they need to believe your witness’s version of events.

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Dealing with a Witness’s Baggage

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Witnesses never come to the stand without their baggage. Here's how to make sure it doesn't weigh them down.

You’ve got a problem.  A big problem.

Your witness has some fantastic information that is going to put your case over the top.  Unfortunately, he’s also going to bring some pretty significant baggage with him to the witness stand.  It might be a conviction for perjury, perhaps a damning prior conviction, or maybe he’s even placed a $100,000 bet riding on the outcome of the case — whatever the baggage is, it’s bad.

So… what are you going to do?

Are you going to bury your head in the sand and hope that the problem fixes itself?  Optimistically hope that your opponent incompetently forgets to cross-examine the witness about the baggage?  Pray for a miracle (or for a continuance)?

Certainly, in some cases, the baggage may be so terrible that you decide not to call the witness.  After all, if you’ve done a good job of case selection and preparation, you’ve got at least two forms of proof for every essential element, so you’ll still be able to successfully prove your case even if you don’t call the witness.  But, just for sake of argument, let’s assume that your second form of proof carries even more baggage (or even worse, you don’t have a second form of proof).  You’re stuck calling this guy — what are you going to do to minimize the inevitable damage that will erupt during cross-examination?

One way to exercise damage control is by eliciting the damaging information yourself during direct examination.  It’s an essential element of spin control: timing the release of negative news to steal your opponent’s thunder, so that the problem can be addressed on your terms, rather than your opponent’s terms.

Here are three quick guidelines for exercising damage control during direct:

1. Timing is everything. Apply the principles of Primacy and Recency to the timing of your disclosure.  If you start with the bad news, it negatively affects the way jurors look at the rest of your witness’s testimony.  If you end with the bad news, that’s all they’ll remember.  Instead, time the disclosure during the middle of your direct examination or during a low point in the testimony, so that it doesn’t resonate as loudly in the jury’s minds.

2. Confront the witness. If you want to minimize the sting of the impeachment material, consider subjecting your witness to a “mini cross-examination” during your direct.  In my experience, disclosures aren’t as effective if you meekly ask the witness about the bad news.  You need to actively confront him about it.  You’ll have to determine how much confrontation is appropriate in your case, but chances are, at the very least you’ll switch to leading questions, raise your voice, and quicken the pace of your examination.  (“After you were robbed, you didn’t immediately call the police, did you?  No, you called your friend, instead, right?  And you asked him to remove the bong and the drug scales from the house before you called the police, didn’t you?”)  Often, your opponent won’t even object to your use of leading questions during this portion of your direct, because you’re covering exactly the same issues that they want to address.  By asking the “big” questions, you should be able to prevent them from being re-asked during cross.  Remember, “Asked and Answered” or “Repetitive” objections apply to the entire examination, not just one lawyer’s series of questions.

3. Ask “Why?” and accept the witness’s answer. This is the most important part if you’re hoping to draw the venom out of the wound.  Once the witness has admitted he did the bad deed, you need to give him a chance to explain why he did it.  At the end of your “cross-examination,” you’re going to ask him to tell the jurors his reasoning, motivation, or explanation for what happened.  To ease into this section, consider pausing for a moment, shifting your body language to a less confrontational stance, lowering your voice, and then simply asking, “Why?”

Give him a chance to explain what happened.  If he doesn’t fully explain his actions, or his explanation falls short of credulity, switch back to a more confrontational mode and hit him with more “Why?” questions until he gives you a reasonable explanation.  It’s important that you don’t let him off the ropes until he’s given you a plausible explanation, but once he’s given you a plausible answer, you need to accept his response.  Demonstrate your acceptance through both your body language (ex. nodding your head once in agreement, relaxing your shoulders as the tension disappears from the room, or turning towards the jury to make eye contact) and your tone of voice.  It’s essential that you non-verbally communicate your acceptance to the jury, because if you don’t accept the answer, there’s no way the jurors are going to buy it.

[NOTE: I was a bit hesitant to include this last portion, because I’m afraid some lawyers will misconstrue my advice and make improper comments on the record indicating their acceptance of the witness’s answer.  Remember, it is improper for lawyers to state our belief in the justness of a cause, so you shouldn’t ever make comments like “I believe you” or “I accept your answer.”  However, I don’t believe this precludes lawyers from demonstrating their belief in their case through changes in posture, stance, tone of voice, pitch, tempo, or non-verbal body language.]

Finally, remember to periodically check in with your jurors by making eye contact with them during this exchange, so that you can gauge how they’re reacting to the disclosure and calibrate accordingly.  You won’t be able to completely eliminate the negative impact of the impeachment material, but hopefully, if you correctly apply these three techniques, you should be able to exercise a fair amount of damage control, and prevent your witness from imploding on the witness stand.