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Maybe you better sweat the small stuff…

Friday, July 23, 2010
posted by Rita Handrich

You might think that giving that witness a fashion update, helping them to understand their role in the trial story, and working with them to remove distracting non-verbal behaviors would be enough to go to trial. Not so fast! There is so much more to consider. It seems jurors may intuit much from small (or not so small) witness features that are really not salient to testimony at all. So contrary to the best selling books out there—you really do need to sweat the small stuff. Like what small stuff, you ask? Read on…

Facial scars:

If the opposing witness has a facial scar and yours does not—you might think that would bode well for your side. After all, facial scars are sinister. Or maybe not. Turns out that men with facial scars have more one-night stands and that (some?) women see facial scars as indicative of bravery and health.  We know character matters to jurors. They may end up thinking the scarred witness is more attractive—not to mention both healthy and brave—than your witness.  Or, perhaps, creepy.

Videography angles and focus:

It’s pretty obvious that you want your witness well-lit, shot from a flattering angle and (please) no iced coffee or soda—jurors often think this means the witness is not taking the deposition seriously.  We have a long list of “do’s and don’ts” for witnesses, but overall, depositions are not the time for a refreshing beverage.

New research shows us that when your client has confessed and then retracted that confession—a confession video only trained on the defendant is seen as more convincing/persuasive than one trained on both the defendant and the detective or the detective/interrogator alone. And when there is much detail in the confession—it’s even more persuasive when the camera is trained on the defendant alone. (This is really an interesting piece of research and we’ll blog more on this soon.)

Foreign accents:

Many of us think that if someone speaks English (even accented English) it’s better to have them testify in English rather than in their native language with a translator. That may not be true. New research shows that when someone speaks with an accent—many people believe they are not being truthful. And the heavier the accent, the more we assess them as being not truthful.  When we have trouble understanding someone, we assume they are less than truthful.

While you can make jurors aware of how videography and accents can bias their judgments—it’s likely a bit harder to say “don’t like their witness more because he has facial scars”. The take-away here is that everything matters: the big stuff and yes, even the small stuff. Sweat it all.

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