Simple Jury Persuasion: “That was the witness who spoke so sadly”
Our mock jurors often assess the emotionality of witnesses during deposition or testimony. They comment when emotion seems excessive and they comment when emotion seems to be lacking. Those evaluative comments result in judgments–either negative or positive–for how jurors will remember witness credibility and reliability.
Some interesting new research adds more information to our knowledge of what jurors will remember after emotional (or neutral) testimony. Researchers examined the differences in how observers retain information after hearing emotional speech versus neutral speech. It likely makes sense to all of us that emotional speech captures our attention immediately. What this research looks at, however, is whether emotion has a lasting effect on how we remember what was said during the emotional speech. That is, do we remember words differently if they were spoken sadly versus when they are spoken neutrally?
Researchers had almost 100 participants (48 men and 48 women) listen to words spoken in either sad voices or neutral voices. Then they were shown individual words on the computer screen for very brief periods of time. Some were the same words they had heard verbally and others were words that had not been spoken aloud. The participants were asked for recognition (“is this an old word you heard spoken earlier or a new word?”) and attitudes toward the words. While the participants looked at the visual images, the researchers measured brain activity using EEGs to see if there was “evidence of vocal emotional coding”.
There was more word recognition if participants had heard the words spoken in the neutral tone rather than the sad tone.
When asked about attitudes toward the visually presented words, those that had been spoken in the sad voice were remembered more negatively.
Women were better at recalling the tone (neutral or sad) of the speaker’s voice than were men.
The researchers concluded that emotional voices not only capture the listener’s attention but also produce changes in long-term memory. Emotional voices assign emotion to otherwise neutral words.
In terms of litigation advocacy, this research has useful information for us. Jurors are going to remember emotional testimony. The emotional testimony may result in a negative recollection (as in “oh, that was so horrible”). And women jurors are going to be more able to identify (and then resonantly recall) the emotional testimony.
You don’t need to erase emotionality from witness testimony. It does need to be contained so that jurors don’t see the emotion as “over the top” and presume manipulation. If your witness deals with genuine emotion by becoming stoic and distant, explain that via earlier witnesses so that jurors can view the witness’ lack of emotion as a coping mechanism or a sign of shyness or pride rather than a lack of feeling.
Schirmer A, Chen CB, Ching A, Tan L, & Hong RY (2012). Vocal emotions influence verbal memory: Neural correlates and interindividual differences. Cognitive, Affective & Behavioral Neuroscience PMID: 23224782