September 1, 2011

Guess You Had to be There (Prefer Present Witnesses Over Absent Ones)

By Dr. Ken Broda-Bahm – Outline
The recent trial involved two New York City police officers accused of raping a fashion executive, after helping her out of a taxi at the end of a night of drinking.  Without physical evidence (the department’s search of the apartment yielded nothing, and the accuser herself had showered), the case depended on the credibility of testimony.  A key moment came when earlier grand jury statements were entered into the record, as John Eligon of The New York Times describes the scene:

To spectators in the Manhattan courtroom, it was a mundane moment:  a court stenographer reading in a monotone voice the testimony of a woman who said she was raped by a police officer.

Later, in a verdict prompting local outrage, the jury acquitted the two officers, despite security cameras showing that the officers had visited the woman’s apartment three more times during the night, and despite one of the officer’s admission on tape that he had sexual contact with the woman – and remember, she was so intoxicated she could not get out of a cab on her own.  So, why the acquittal?  According to one of the jurors, it came down to the delivery mode of this critical testimony. 

The juror explained,  “When her testimony was read back without her in the mix, it was much easier for us to see what she said.”  And further, “It sounded like a construct from the prosecution, which did not prove beyond any kind of reasonable doubt that there was a rape.”  It may well be that the fact that this critical testimony was read back, rather than being delivered live by the witness, actually did allow the juror to “see what she said,” and focus on nuances of language that raised reasonable doubt.  But reading that comment, I have to wonder what effect may be coming from the “mundane” and “monotone” reading of the events without emphasis, emotion, or context.  What was the effect of hearing the witness’s testimony, “without her in the mix”?  Was it easier to doubt, to criticize, or to see it as a “construct of the prosecution” due to an absence of personal delivery?

The ultimate question is whether the less immediate presentation of the testimony provided jurors with a fair way to gauge credibility.  That same question – a critical one – faces anyone who has a choice over mode of testimony for a witness.  Whether the testimony is read into the record, delivered in clips from a deposition, conveyed in videoconference mode, or delivered live from the stand makes a difference.  If the woman’s testimony had been delivered by video-recording, rather than in a monotone reading, that would have arguably been better in providing more complete access to all the dimensions of source credibility.  At the same time, even in video mode, the witness would have lacked the “presence” and the complete array of communication traits that would have allowed the best assessment of credibility.

In civil lawsuits, depositions are increasingly being taken by video, and it is well-understood that read testimony is a matter of last resort — maybe better than nothing, but far worse than a live witness.  The more controversial question is the focus of this post:  How much is lost when using videographic rather than live testimony?  I take a look at what the research says about the difference and how litigators should make the choice.

The Research

One of the earliest investigations, a tome called “Videotape on Trial” by Gerald Miller and Norman Fontes (1979) considered a number of possible uses and effects for video on trial, and concluded that “There is no evidence to suggest that the use of videotape exerts any deleterious effects on the juror responses studied,” but that study still conveyed some cautions that have been expanded in more recent studies.  For example, one finding from a related project was that interspersing videotape into an otherwise live trial had a biasing effect.  Based on jurors viewing either live or videotaped expert and party witnesses, the study found that the jurors viewed the plaintiff witness as more credible, and remembered his testimony more completely when he appeared live, yet saw the defense witness as more credible when he was on video.  So, it seems like there is a bias in mode of testimony, but not a uniform one:  The direction of that bias may be idiosyncratic and unpredictable.

More recently, a group of Swedish researchers (Landstrom, Granhag & Hartvig, 2005), looked at mock jurors’ reactions to live and videotaped eyewitness testimony describing a staged accident.  Jurors were presented with the witnesses’ testimony either live or via video and rated the witnesses’ statements, appearance, and credibility.  Live observers of the testimony rated the witnesses’ appearance more positively than did video observers, and perceived the witnesses as being more honest. Live observers also (but incorrectly) believed they had a better memory of the witnesses’ statements than did video observers.  So the short answer is that there is a measureable, but like many human phenomena, it tends to vary.

The Recommendations

1. Don’t Over-Segment Communication.  In witness assessment and preparation, we tend to break witness’s behavior down into component parts, and communications researchers are certainly as guilty as lawyers on this score.  There is what she says, then there is how she says it.  There is his verbal message, then there is the non-verbal delivery of that message.  But as much as this segmentation might serve an analytic function, it is important to remember that jurors, judges, and other audiences are not reacting to a collection of traits — words, gestures, nonverbal emphasis – but are instead reacting to the whole package:  a person.   When you decide on a witness’s strengths and weaknesses, and prepare that witness, keep your focus on the whole person.  And whenever you chose a mode of presentation other than live testimony, know that you are de-emphasizing some aspects of that whole person.

2. Strongly prefer the present witness.  While there may be circumstances where you don’t want strong attention or recollection of testimony, most of the time the credibility of your own witness is very important.  In that context, the choice of live testimony over video-recorded, or in some venues, tele-conferencing, ought to be not just a preference, but a strong preference.  Jurors want to see the person, and not just the aspects of communication that translate well on video.

3. When you do need to use witness video, do it right.  When we are conducting mock trial research, we sometimes have to fake a witness deposition or two in order to represent the other side:  We hire an actor, and record the testimony in our own mock trial room.  But lately, we’ve been experiencing an odd problem:  The faked video is too good, and stands out in contrast to the some of the actual deposition video.  Our videographer, Don Yost, is careful to have good lighting, a high-quality camera, a properly framed picture, and crystal clear audio.  It is surprising how many video depositions are taken lacking one or more of those traits.  In some cases, the original video may have been perfect, but the clip has been moved from format to format and lost some of its quality.  A grainy picture or a muddy soundtrack can definitely detract from the attention, recollection, and credibility that a witness receives.  With today’s technology, there is no excuse for poor quality video.

In the example I used at the start of this post, the situation involved testimony being read with the witness herself, “not in the mix.”  In the case of videographic testimony, it may be a question of presenting a witness who is “less in the mix” and hence, potentially less credible or memorable.  When credibility and impact matters, prefer the present witness. 


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Note:  I appreciate the help of my colleagues and friends Ron Matlon, Jeff Frederick, and Kathy Kellermann who pointed me toward relevant research, originally to answer an attorney’s question, but ultimately repurposed for this post. Landström, S., Granhag, P., Hartwig, M. (2005). Witnesses appearing live versus on video: effects on observers’ perception, veracity assessments and memory Applied Cognitive Psychology, 19(7), 913-933 DOI: 10.1002/acp.1131

Photo Credit:  Hryck, Flickr Creative Commons

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