What do we really know about witness preparation?

Behavioral Sciences and the Law

Behav. Sci. Law 20: 161–189 (2002)

Published online in Wiley Interscience (www.interscience.wiley.com). DOI: 10.1002/bsl.472

What Do We Really Know aboutWitness Preparation?

Marcus T. Boccaccini, M.A.*

Witnesses often meet with an attorney or witness prepara-

tion specialist before trial to review, discuss, and some-

timesmodify the substance anddelivery of their anticipated

testimony. This process is commonly referred to as witness

preparation. During witness preparation, witnesses are

taught to use effective testimony delivery skills (e.g., verbal

and nonverbal communication skills) so that they will be

perceived as being credible and persuasive in the court-

room. Although social scientists know much about com-

munication skills, credibility, and persuasion, few

published studies have attempted to determine whether

or not these factors can be modified through witness pre-

paration training. The present article reviews the psycho-

logical literature pertaining to witness preparation and

makes recommendations for needed witness preparation

research. Copyright # 2002 John Wiley & Sons, Ltd.

Witness testimony is often the most important component of a trial. Attorneys argue

legal cases by presenting witnesses who have information supporting their side of the

case and by cross examining witnesses called to testify by opposing attorneys.

Although attorneys direct the presentation of information to the court by deciding

which witnesses to call and what questions to ask, most of the information that is

presented comes from witnesses’ testimony (e.g., litigants, victims, eye-witnesses,

and expert witnesses). Because attorneys structure their cases according to their

witnesses’ testimony, they often tell jurors during opening and closing statements

that this testimony is the ‘real evidence’ of the case (Selkirk, 1992, p. 18).

It is a common misbelief that witnesses simply arrive at the courthouse, take an

oath of honesty, and then testify to the court about what they know (Applegate,

1989). In reality, witnesses often meet with an attorney or witness preparation

specialist before trial to review, discuss, and sometimes modify the substance

and delivery of their anticipated testimony. This process, typically referred to as

witness preparation, allows attorneys to present witnesses who are thoroughly

familiar with the subject matter of their testimony and able to persuade judges

Copyright # 2002 John Wiley & Sons, Ltd.

*Correspondence to: Marcus T. Boccaccini, M.A., Psychology Department, Box 870348, The Universityof Alabama, Tuscaloosa, AL 35401, U.S.A. E-mail: [email protected]. Charles P. Ewing served as action editor for this article.I would like to thank Stanley L. Brodsky for his helpful comments on an earlier draft of this article.

and jurors by communicating what they know in a clear and coherent manner

(Applegate, 1989).

Although witness preparation is common, numerous controversies surround its

use. Witness preparation has been called a ‘dark secret’ of the legal profession

because it occurs behind closed office doors and often remains confidential

(Applegate, 1989). For example, attorneys are not obligated to reveal the witness

preparation procedures that they use to prepare their own clients because this

information is protected by attorney–client privilege (Davis & Beisecker, 1994).

These circumstances have led the public to mistakenly believe that the purpose of

witness preparation is for attorneys and clients to collaborate in the fabrication of

misleading testimony (Applegate, 1989). It is unethical and illegal for attorneys to

assist in the fabrication of misleading testimony (American Bar Association, 2001,

§1.2d & §3.4b; see Salmi, 1999, for a review of applicable case law) and most

attorneys do not encourage witnesses to tell lies; however, most attorneys receive

no formal training in witnesses preparation procedures, and improper witness

preparation can occur unknowingly when untrained attorneys prepare witnesses

(Applegate, 1989; Aron & Rosner, 1998; Wydick, 1995). Even when trained

attorneys use legal witness preparation procedures, they do so in the absence of

direct empirical support for their preparation methods. Numerous studies

have investigated witness behaviors and characteristics that influence jurors’

decisions, but only two published studies, both conducted in laboratory settings,

have examined specifically the effectiveness of witness preparation training proce-

dures (Spanos, Quigley, Gwynn, Glatt, & Perlini, 1991; Wells, Ferguson, &

Lindsay, 1981).

The lack of empirical research on witness preparation training is somewhat of a

conundrum. During witness preparation, witnesses are taught how to communicate

effectively in the courtroom so that they will be perceived as being credible and

persuasive by judges and jurors. Although credibility and persuasion have been

studied by social scientists for several decades and calls for witness preparation

research were made more than 40 years ago (e.g., Weinstein, 1957), few studies

have attempted to examine whether credibility and persuasiveness can be modified

through witness preparation training. There are several possible reasons for the

virtual absence of an empirical witness preparation literature. Nietzel and Dillehay

(1986) have suggested that witness preparation is not researched because most

social scientists are unaware of its use and because professionals who prepare

witnesses, such as attorneys and trial consultants, are not researchers. Moreover,

professionals who do collect data on the effectiveness of their witness preparation

procedures may not publish their findings for proprietary reasons. Another possible

reason for the lack of witness preparation research is that logistical constraints

hinder its investigation. As jury selection researchers have noted, the relation

between trial consulting practices and trial outcomes in actual cases cannot be

known because jury verdicts are ‘multiply determined’ (Cutler, 1990, p. 229). In

real cases, it is impossible to know the true impact of any piece of evidence,

including a witness’s testimony. A final reason for the absence of witness preparation

research is that witness preparation is sometimes perceived as unethical, especially

in criminal trials (Nietzel & Dillehay, 1986). Some researchers may believe that

studying witness preparation will provide empirical support for a practice that they

believe is unethical.

162 M. T. Boccaccini

Copyright # 2002 John Wiley & Sons, Ltd. Behav. Sci. Law 20: 161–189 (2002)

This article reviews existing social science research that bears on the issue of pre-

trial preparation of adult witnesses1 and makes recommendations for needed

witness preparation research. The article begins with an overview of the rationale

for and practice of witness preparation. Next, findings from existing witness

preparation studies are reviewed and critiqued, and it is argued that these studies

provide limited tests of witness preparation training. Because most witness prepara-

tion training procedures are designed to improve perceptions of witnesses’ cred-

ibility and persuasiveness by modifying their communication skills, research studies

that have examined relations between communication skills, perceived credibility,

and persuasion are then discussed. Next, by drawing upon research findings and

theory from the study of credibility and persuasion, it is argued that testimony

delivery skills are likely to have a impact on jurors’ attitudes in many courtroom

situations. The article concludes by proposing four stages of needed witness

preparation research.

RATIONALE FOR WITNESS PREPARATION

The practice of preparing witnesses to testify in court is well established. The

colorful terms used by some attorneys when speaking about witness preparation,

such as ‘horseshedding,’ ‘woodshedding,’ and ‘sandpapering’ witnesses, reflect the

rich history of witness preparation practices (McElhaney, 1987). James Fenimore

Cooper is credited with coining the best-known term for witness preparation,

horseshedding, and using it in novels such as The Redskins (1846/n.d.) and TheWays of the Hour (1850/1968).

Despite variations in terminology, the purpose of horseshedding, woodshedding,

sandpapering, and preparing witnesses is the same: to improve the persuasiveness

and credibility of witnesses and their testimony. Given the importance of witnesses’

testimony in trials, many legal scholars see the improvement of testimony through

witness preparation as a basic component of pretrial preparation. They maintain

that pretrial preparation of witnesses is essential and determines the extent to which

triers of fact are persuaded by witnesses’ testimony (Aron & Rosner, 1998). The

perceived importance of witness preparation to practicing attorneys can be seen in

the frequent publication of witness preparation articles in practice-oriented legal

publications (see, e.g., Altman, 1995; Beals, 1996; Berg, 1987; DiBlasi, 1993;

Israel, 1999; Jacobs, 1998; Kerper, 1998; Malone, 1998; McElhaney, 1987, 2001;

Nelson, 1999), and the existence of several trial practice manuals devoted entirely to

witness preparation strategies (see, e.g., Aron & Rosner, 1998; Finlay & Cromwell,

1999; Small, 1998).

To examine their belief that witness preparation is an essential component of trial

preparation, Aron and Rosner (1998) surveyed a group of ‘outstanding’ attorneys

1The preparation of child witnesses is a related, but distinct issue. Arguments about the appropriatenessof preparing child witnesses have focused on children’s cognitive abilities, susceptibility to suggestion, andrecall accuracy. Detailed reviews of this literature are available elsewhere (see, e.g., Bull-Kovera &McAuliff, 1999; Ceci & Bruck, 1995; Doris, 1991; Goodman & Bottoms, 1993). Nevertheless, it is worthnoting that several researchers have found empirical support for the preparation training procedures thatthey use with children (see, e.g., Peters & Nunez, 1999; Saywitz & Snyder, 1993; Saywitz, Snyder, &Nathanson, 1999).

Witness preparation 163


and law professors about the importance of witness preparation.2 They found that

84% of the 75 respondents to their survey felt that witness preparation was a ‘duty.’

Respondents were also asked to report their reasons for preparing witnesses.

Common responses included ‘to avoid surprises,’ ‘to alleviate natural fear of lay

witnesses,’ and to permit witnesses ‘to present [their] testimony in the clearest, most

accurate, and persuasive manner’ (pp. 17-2–17-4).

THE PRACTICE OF WITNESS PREPARATION

Although the purpose of witness preparation has not changed since the days of

horseshedding, the practice of witness preparation has evolved. In the days of

horseshedding, attorneys prepared their own witnesses the night before the trial

(Vogel, 1952). Although many attorneys still prepare their own witnesses, others

seek the assistance of coworkers or witness preparation specialists. For instance,

Aron and Rosner (1998) found that 40% of the respondents to their survey reported

that they always prepared their witnesses alone, while 49% reported that they always

prepared their witnesses with at least one other person present (e.g., associate

attorney, secretary, consultant). Witness preparation in large and/or complex cases

(e.g., capital cases, large civil cases) often begins weeks before trial, and some

witnesses are prepared by a defense team that includes multiple attorneys and trial

consultants (see Shartel, 1994). Nevertheless, the witness preparation techniques

recommended by attorneys (Aron & Rosner, 1998; Beals, 1996; Berg, 1987;

Dombroff, 1985; McElhaney, 1987; Selkirk, 1992), forensic psychologists

(Brodsky, Sparrow, & Boccaccini, 1998; Nietzel & Dillehay, 1986), and trial

consultants (Anthony & Vinson, 1987; Courtroom Performance, Inc., 1999) over-

lap considerably. A review of the witness preparation literature reveals three basic

components of witness preparation: (i) witness education, (ii) attorney education,

and (iii) modification of testimony delivery.

Witness Education

During witness education, attorneys and witnesses review case facts and previous

statements made by witnesses (e.g., during depositions, to police) to prevent them

from making contradictory statements on the witness stand (Acklin, 1987; Beals,

1996; Kerrigan, 1999).3 Witness education also involves orienting witnesses to the

courtroom setting and trial process to prevent them from appearing nervous or

confused in the courtroom (Brodsky, 1991; Dombroff, 1985; Maciejczyk, 1996).

2Aron and Rosner (1998) sampled ‘outstanding’ attorneys because they wanted to use the attorneys’responses as a training resource for less experienced attorneys. Thus, the results from their survey are notnecessarily generalizable to all attorneys.3Although this article focuses on research pertaining to the third component of witness preparation(modification of testimony delivery), the reader may be interested to know that several studies haveinvestigated the impact of reviewing previous statements and other case-related information on memorydistortion. These studies have shown that witnesses who are allowed to review their own statements areoften more consistent and make fewer errors during later recalls, but witness who review other case-related information (e.g., statements from other witnesses) sometimes incorporate this information intotheir memories (see Manger, Markham, & Barnett, 1996; Turtle & Yuille, 1994).



To accomplish this goal, experts recommend taking witnesses to the courtroom

before the trial so that they can become familiar with the specific courtroom in which

they are going to testify (Acklin, 1987; Brodsky, 1991; Jacobs, 1998; Nietzel &

Dillehay, 1986).

Attorney Education

The second component of witness preparation is attorney education. Attorneys are

educated during witness preparation by learning about their witnesses’ case-related

knowledge and by becoming thoroughly familiar with each witness’s anticipated

testimony (Acklin, 1987; Altman, 1995). By interviewing prospective witnesses

before trial, attorneys can judge the strengths and weakness of each witness’s

testimony and decide which witnesses they will call to testify in court. Being

thoroughly familiar with their witnesses’ testimony also allows attorneys to avoid

surprises from their witnesses during courtroom testimony (Aron & Rosner, 1998).

Modification of Testimony Delivery

The third component of witness preparation is modification of testimony delivery.

Testimony delivery is a general term that is used to describe all witness behaviors

and characteristics that jurors can see and hear when the witness is in the courtroom.

Witness characteristics that are believed to impact the quality of testimony delivery

include physical appearance, courtroom demeanor, and communication style

(Smith & Malandro, 1985).

Modification of testimony delivery is considered by many witness preparation

experts to be the most important component of witness preparation (Aron &

Rosner, 1998; Berg, 1987; Follingstad, 1984). They believe that how a witness

behaves and communicates on the witness stand has a immense influence on jurors’

evaluations of the usefulness of the testimony. Although modifications in testimony

delivery are often carried out by attorneys, this component of witness preparation is

an area of expertise for many trial consultants who specialize in the areas of

communication and behavior modification.

Testimony delivery is typically modified through a combination of instruction

and testimony rehearsal (Altman, 1995; Nelson, 1999). First, witnesses are in-

structed about what to wear, how to groom themselves, and how to behave in the

courtroom and on the witness stand. Testimony rehearsal is used to see how well

witnesses perform after receiving initial instructions. In many cases, attorneys and

trial consultants simply observe witnesses during testimony rehearsals and make

suggestions about problematic behaviors that appear during the rehearsal sessions.

Some attorneys and consultants videotape witnesses’ testimony and have mock

jurors evaluate the videotaped testimony or have witnesses evaluate the videotaped

testimony themselves. Others have witnesses testify in front of a panel of mock jurors

and use the jurors’ evaluations to identify problematic characteristics or behaviors.

Many aspects of testimony delivery can be modified through witness preparation.

Aron and Rosner (1998) have compiled a thorough witness preparation manual that



contains an extensive review of the current knowledge about modifying testimony

delivery (see also Smith & Malandro, 1985). A comprehensive review of this

literature is beyond the scope of this article; however, Table 1 summarizes the

most frequent suggestions for modifying testimony delivery. All of these suggestions

are intended to help witnesses appear credible and persuasive.

Although modification of testimony delivery is considered to be the most

important component of witness preparation, it is also the most controversial

because the witness preparation procedures that are used to modify testimony

delivery can lead to what has been called ‘objectively false but subjectively true

testimony’ (Applegate, 1989, p. 309). As can be seen in Table 1, all witnesses are

told to tell the truth on the witness stand. Witness preparation is not intended to

modify the truth. However, objectively false but subjectively true testimony can be

created when a witness’s memory of an event is distorted during the course of

witness preparation, leading them to give unknowingly false or misleading testi-

mony.4 Memory distortion can occur when suggestive questioning by attorneys or

trial consultants causes witnesses to recall events incorrectly (see Loftus, 1975;

Loftus & Hoffman, 1989), and when repeated questioning (e.g., during rehearsals)

causes initially uncertain witnesses to become certain (see Shaw, 1996; Shaw &

McClure, 1996; Turtle & Yuille, 1994). In both circumstances, the content of the

testimony is changed by the witness preparation procedure. Although psychologists

Table 1. Fundamental testifying skills

Answering questions

1. Always tell the truth.

2. Listen carefully to the question being asked, then pause, take a breath, and answer the question.

This allows the witness to relax and, during cross-examination, gives the attorney a chance to object

if necessary.

3. Only answer the question that is asked. If the attorney pauses, do not attempt to fill the resulting

silence.

4. Avoid slang and jargon. Use language that everybody can understand.

5. Do not memorize answers to anticipated questions.

6. Speak loudly and clearly. Nervous witnesses ramble on and speak rapidly. Shy witnesses speak too

softly.

7. Do not argue with opposing counsel about their line of questioning.

8. It is OK to ask an attorney to repeat or rephrase a question.

9. It is OK to say ‘no’ and ‘I don’t know.’ Do not guess on the witness stand.

10. Avoid qualifiers such as ‘I think’ and ‘I guess.’ Also, avoid hesitation words such as ‘uh’ and ‘um.’

Non-verbal behavior

1. Maintain good posture. Do not slouch and try not to shift posture excessively or hastily.

2. Do not forget to look at the jury when testifying. Alternatively, do not stare at the jury.

3. Do not look to the attorney for answers. This behavior will imply that the attorney is giving

instructions.

4. Use mannerisms and gestures, but do not use them excessively. Too many gestures may make the

witness appear nervous or hyperactive.

Other

1. Ask witness: ‘How do you know when a person is believable?’ Then have them evaluate their

testimony using their own internal norms for believability.

Sources: Aron & Rosner, 1998; Dombroff, 1985; Follingstad, 1984; McElhaney, 1987; Smith &Malandro, 1985.

4Pre-witness preparation questioning by attorneys and police can also lead to memory distortion.



and legal scholars have warned practitioners that improper witness preparation

procedures can lead to memory distortion (see, e.g., Applegate, 1989; Kerper, 1998;

Miller, 1993; Nietzel & Dillehay, 1986; Salmi, 1999; Wydick, 1995), the extent to

which attorneys and trial consultants take steps to prevent memory distortion is not

known.

WHAT DO WE KNOW ABOUT WITNESS

PREPARATION?

Two published studies have directly examined the impact of witness preparation

training. In the first study, Wells et al. (1981) had undergraduate subjects watch a

confederate steal a researcher’s calculator. Participants who identified a perpetrator

from a photo lineup (either correctly or incorrectly) were videotaped during a

subsequent cross examination. Before the cross examination, half of the eye-

witnesses (n¼ 19) were ‘briefed’ by a ‘prosecutor’ about the purpose of cross

examination (to discredit the witness) and the types of question that the ‘defense

attorney’ might ask (e.g., How tall was she?). Briefed witnesses were told to

rehearse their answers to the proposed questions and were given 18 minutes to

think about their answers before testifying. Non-briefed subjects waited 25 minutes

between their identifications and testimony, but were not given any type of ‘brief-

ing.’ During the cross examinations, the defense attorney asked each witness the

same set of 15 questions, one of which required the witnesses to state their

confidence in their identification using a seven-point scale. Each videotape was

watched by a different group of four mock jurors, who were asked to rate the

witnesses’ confidence, the extent to which they believed that the witnesses’

identifications were correct, and the defendant’s guilt. Mock jurors were also asked

whether they felt that the witnesses had been coached. The researchers found that

witnesses who had been ‘briefed’ prior to being cross examined reported higher

levels of confidence in their identifications than non-briefed witnesses. In addition,

mock jurors were more likely to believe that the defendant was guilty when witnesses

had been briefed, and briefed witnesses were perceived as being more confident than

non-briefed witnesses. Additional analyses suggested that the mock jurors could not

tell which witnesses had been ‘briefed.’

In the second study, Spanos et al. (1991) examined the effects of hypnotic

interrogation and witness preparation on eye-witnesses’ testimony during direct and

cross examinations. After viewing a 60 second videotape of a shooting, witnesses

were asked to write a detailed description of the event and to identify the perpetrator

in a photo lineup. During a second session (5 to 14 days later), half of the witnesses

listened to a hypnotic induction tape followed by suggestions that they would be able

to recall the events of the shooting more clearly than they had during their initial

recall. These witnesses were then asked to provide a second written account of the

incident and were again asked to identify the perpetrator from the lineup. The non-

hypnotized witnesses completed the recall and identification tasks again as well.

During a third session, half of the witnesses from each group (hypnotized, non-

hypnotized) received witness preparation training. The prepared witnesses were

informed about the purpose of cross examination (to discredit witnesses) and were



told to speak in complete sentences, answer questions fully, and present themselves

confidently. They were then given practice direct and cross examination questions

by the ‘prosecutor,’ who provided feedback for each of their answers. Next,

witnesses were videotaped during a direct examination (three scripted questions)

and a cross examination (five scripted questions). Two evaluators rated the

witnesses’ testimony for the level of ‘certainty’ that witnesses displayed during their

testimony: one rating for direct examination testimony and one rating for cross

examination testimony. The researchers found that prepared witnesses gave sig-

nificantly longer answers to an open-ended direct examination question than did

non-prepared witnesses. With respect to perceived certainty, the prepared witnesses

who had also received hypnotic suggestions were rated as being more certain than

the other three groups of witnesses. Witness from the other three groups received

similar certainty ratings. When the researchers examined differences in certainty

ratings between direct and cross examinations, they found that prepared subjects

were less likely to exhibit a ‘weakening’ in certainty during cross examination than

non-prepared subjects. In other words, prepared subjects received similar certainty

ratings on direct and cross examination, but non-prepared subjects were seen as

more certain during their direct examination testimony than during their cross

examination testimony.

Although findings from these studies suggest that witness preparation is useful for

improving witnesses’ confidence and helping them cope with cross examination

questioning, there are several reasons why they provide limited tests of the effec-

tiveness of witness preparation training. First, both studies examined the effect of

preparation on only one type of witness—eye-witnesses. Second, the testimony

sessions in these studies were brief, and the ‘attorneys’ were not allowed to modify

their questions in response to witnesses’ answers (e.g., were not allowed to explore

‘holes’ opened by the witnesses). Third, because the testimony sessions were brief,

the witnesses’ preparation training sessions were brief and focused on questions that

were asked in the actual testimony sessions. Although attorneys in real cases are

often able to anticipate cross examination questions, the ‘prosecutors’ who prepared

witnesses in these studies were probably too accurate. Fourth, these studies focused

on the impact of witness preparation training on witnesses’ confidence, and, thus,

provided little information about the effect of training on testimony delivery skills.

Finally, neither of these studies had witnesses testify both before and after they were

prepared, making it impossible to know whether any group differences in testifying

skills existed before the witnesses were prepared.

Although the Wells et al. (1981) and Spanos et al. (1991) studies provide the only

direct examinations of witness preparation training, other research findings pertain-

ing to witness preparation come from studies that have examined the relations

between communication style variables (both verbal and nonverbal) and percep-

tions of credibility and persuasiveness.5 Research findings from this body of research

5Most courtroom communication studies have not examined the impact of sex or ethnicity differences incommunication styles, and a review of non-courtroom studies that have examined these issues is beyondthe scope of this article. However, several authors have recently reviewed the existing research literatureconcerning ethnic differences in communication skills and hypothesized how these differences mayimpact evaluations of witnesses’ testimony (Johnson, 1996; Rand, 2000), and recent reviews of thecurrent state of knowledge about sex differences in communication are also available (Burgoon, Buller,Grandpre, & Kalbfleisch, 1998; Burgoon & Klingle, 1998; Hall, Carter, & Horgan, 2000). Readers whoare interested in sex and/or ethnicity differences should consult these sources.



are reviewed here for two purposes. First, they show that testimony delivery style

variables can influence perceptions of credibility and persuasiveness, suggesting that

attorneys have much to lose by failing to prepare their witnesses to testify. Second,

these findings identify specific aspects of testimony delivery that can be targeted for

modification through witness preparation training.

There are, however, several reasons why caution should be used when applying

the credibility and persuasion research findings reviewed here to the practice of

witness preparation. First, few studies have examined relations between witnesses’

communication skills and mock jurors’ perceptions of their credibility and persua-

siveness. For this reason, research findings from studies examining communication

skills in nonlegal contexts are used to supplement the existing courtroom commu-

nication skills literature. Second, when researchers have examined the credibility of

courtroom participants (e.g., witnesses, defendants), they have typically used

vignette methodology and ratings from mock jurors’. Findings from these studies

may not be generalizable to real-life courtroom settings (see Bornstein, 1999;

Weiten & Diamond, 1979). Nonetheless, findings from this literature are generally

consistent with attorneys’ assumptions about the impact of testimony delivery skills

on perceptions of credibility and persuasiveness, suggesting that they are useful for

understanding how testimony delivery skills impact perceptions of credibility and

persuasion in the courtroom.

VERBAL COMMUNICATION

Witness preparation experts believe that witnesses who communicate clearly will be

perceived as being credible and persuasive. In 1974, William O’Barr and his

colleagues founded the Law and Language Project at Duke University to study

this assumption (see O’Barr, 1982). The goal of the project was to study the form of

courtroom speech and its impact on jurors. Project researchers studied recordings of

actual courtroom testimony and designed experiments to assess the impact of

different testimony styles on perceptions of witnesses’ credibility and persuasive-

ness. The project produced several publications (Conley, O’Barr, & Lind, 1978;

Erickson, Lind, Johnson, & O’Barr, 1978; Lind, Erickson, Conley, & O’Barr, 1978;

O’Barr, 1982; O’Barr & Conley, 1976) and prompted a series of follow-up studies

by other researchers (Barry, 1991; Bell, Zahn, & Hopper, 1984; Bradac, Hemphill,

& Tardy, 1981; Hosman, 1989; Hosman & Wright, 1987; Hurwitz, Miron, &

Johnson, 1992; Johnson & Vinson, 1987; Lisko, 1992; Parkinson, 1981; Parkinson,

Geisler, & Pelias, 1983; Pryor & Buchanan, 1984; Wright & Hosman, 1983).

Findings from this body of research provide the only direct empirical knowledge

about the relation between witnesses’ verbal communication styles and jurors’

perceptions of their credibility and persuasiveness.

The Law and Language Project’s studies focused on four specific styles of

courtroom speech: (i) powerful versus powerless speech, (ii) narrative versus

fragmented testimony, (iii) hypercorrect speech, and (iv) simultaneous speech.

Courtroom speech has also been studied through systematic content analysis of

courtroom transcripts (although not by the Law and Language Project). Findings

from these five areas of research are reviewed in this section.



Powerful Versus Powerless Speech

Linguistic power refers to the manner in which a speaker uses language and

paralinguistic cues to convey competence. A speaker who is linguistically powerfulspeaks with confidence and assertiveness, whereas a speaker who is linguisticallypowerless speaks with hesitance and uncertainty. Powerless speech is characterized

by intensifiers (‘very,’ ‘surely’), hedges (‘sort of,’ ‘kind of,’ ‘I think’), hesitationforms (‘uh,’ ‘um,’ ‘well’), and excessive use of polite forms (‘would you please,’ ‘sir’)(O’Barr, 1982). Conversely, powerful speech is characterized by the absence of

powerless speech markers.

To assess the impact of powerless speech in the courtroom, the project research-

ers identified a prototypical segment of powerless testimony from their original tapes

and audiotaped actors (one male and one female) reenacting the testimony

(Erickson et al., 1978). They also created a powerful version of the testimony by

removing the hedges, hesitation forms, and intensifiers from the original version,

and audiotaped the same actors enacting this version of the testimony. Using

undergraduate students as mock jurors, the researchers found that male and female

witnesses who used a powerful speech style were seen as more convincing, truthful,

competent, intelligent, and trustworthy than witnesses who used a powerless speech

style (Erickson et al., 1978).

The findings of Erickson et al. (1978) have been replicated with audiotaped

testimony (Johnson & Vinson, 1987), videotaped testimony (Lisko, 1992), and

written trial transcripts (Bradac et al., 1981). Others have extended the study’s

findings by examining specific components of powerless speech. For example,

Wright and Hosman (1983) found that male and female witnesses who used hedges

were seen as less socially attractive (likeable) than those who did not, and that

credibility ratings were especially low for female witnesses who used hedges. This

same group of researchers found similar findings using testimony from litigants.

Specifically, they found that a defendant in a civil case was more likely to be perceived

as being guilty when her testimony contained either hedges or hesitations, and that a

defendant whose testimony contained both hedges and hesitations was perceived as

being less authoritative and less likeable than a defendant whose testimony did not

contain these powerless speech components (Hosman & Wright, 1987). Finally,

these researchers have also found that intensifiers alone do not have a large impact on

mock jurors’ perceptions of witnesses testimony (Wright & Hosman, 1983).

Several of the powerful/powerless testimony follow-up studies have examined the

relation between mock juror sex and evaluations of witnesses’ testimony. Most of

these studies have concluded that male and female mock jurors respond to powerful

and powerless testimony in similar ways (Bradac et al., 1981; Hosman & Wright,

1987; Wright & Hosman, 1983; however, Erickson et al., 1978, found that

credibility ratings were highest when jurors and witnesses were of the same sex).

Some communication experts believe that powerless speech has to be unrealis-

tically powerless before it impacts a speaker’s credibility. To test this assumption,

Bell et al. (1984) created four transcripts of conversations between two people (in a

non-legal setting). The speaker whose credibility was to be rated made six state-

ments in each condition and used either zero, two, four, or six disclaimers. They

found that ratings of the speaker’s competence were only impacted when four or six

of the statements included a disclaimer. Thus, competence ratings were only



impacted when at least 66% (4/6) of the speaker’s statements contained a dis-

claimer. No published research has attempted to determine whether a similar

relation exists between the number of powerless speech markers used by witnesses

and ratings of their credibility.

The powerful and powerless speech characteristics that were investigated in the

Law and Language Project studies can be present in any witness’s testimony. One

characteristic of powerful speech that was not examined in this series of studies is

expressed confidence. Two types of witness are routinely asked to state their

confidence level on the witness stand: eyewitnesses and expert witnesses. The

relation between expressed confidence and witness’s credibility has been studied

almost exclusively in the context of eyewitness identification testimony. A repeated

finding from this literature is that eyewitnesses who express high levels of confidence

in their identifications are seen by mock jurors as being more accurate, believable,

and credible than less confident witnesses (Cutler, Penrod, & Dexter, 1990; Penrod

& Cutler, 1995).6

Narrative Versus Fragmented Testimony

An assertion that is often made in trial practice manuals is that narrative testimony is

more persuasive than fragmented testimony (see, e.g., Aron, Duffy, & Rosner,

1989). Narrative testimony is characterized by infrequent questions from attorneys

and lengthy descriptive answers by witnesses. Fragmented testimony is character-

ized by frequent questions from attorneys and brief answers from witnesses. Because

attorneys want their witnesses to be persuasive and opposing witnesses to be

unpersuasive, they structure direct-examination questioning to produce narrative

testimony and cross-examination questioning to produce fragmented testimony

(Aron et al., 1989).

To study the effects of narrative and fragmented testimony styles on jurors’

perceptions of credibility, the Law and Language Project researchers identified a

prototypical segment of narrative testimony from their original tapes and audiotaped

actors (one male and one female) reenacting the testimony (see Lind et al., 1978).

They also created a fragmented version of the testimony and audiotaped the same

actors enacting this version of the testimony. In the narrative conditions, witnesses

averaged over 40 words per answer. In the fragmented conditions, witnesses averaged

less than 10 words per answer. Using undergraduate students as mock jurors, the

researchers found that male and female witnesses who used a narrative style were seen

as more competent and dynamic than witnesses who used a fragmented style.

The study by Lind et al. (1978) of narrative and fragmented testimony styles is

the only published empirical investigation of this topic. However, the study has been

criticized for its assumption that the only feature of narrative testimony is answer

length. Barry (1991) argues that lengthy answers can be effective or ineffective and

that there are more important components of narrative testimony than answer

length. Specifically, she believes that the type of speaking ‘code’ used by witnesses

6The relation between eyewitness accuracy and stated confidence is, however, small. For instance,Bothwell, Deffenbacher, and Brigham (1987) conducted a meta-analytic review of this literature andfound an average correlation of r¼ .25 (95% confidence interval of .08 to .42).



determines the effectiveness of their testimony. Witnesses who use an elaborated

code assume that there is no shared information between themselves and their

listeners, and their responses to questions include all necessary details. Witnesses

who use a restricted code speak as if their listeners already know what they are

talking about and do not provide detailed descriptions when they speak. For

example, assume that a witness was asked to explain what they were doing when

they saw a car accident. A witness using restricted code may say ‘We were going

down the road and heard a loud noise.’ A witness using elaborated code may say

‘John and I were walking down Washington Street when I heard a loud crashing

noise behind us’ (adapted from Barry, 1991). Barry believes that witnesses using

elaborated code will be perceived as being more credible than witnesses who use

restricted code. Although Barry provides a compelling argument in support of this

belief, it has not been examined empirically.

Hypercorrect Speech

Hypercorrect speech occurs when witnesses attempt to speak in a style that is more

formal than is their custom (O’Barr, 1982). Witnesses using hypercorrect speech

may say ‘cognizant’ instead of ‘aware,’ ‘utilize’ instead of ‘use,’ and ‘I know not

where,’ instead of ‘I don’t know where’ (O’Barr, 1982). To study the effects of this

testimony style, the Law and Language Project researchers identified a prototypical

example of a witness using a hypercorrect style and audiotaped a male actor giving

the testimony in a hypercorrect style and in a non-hypercorrect style. Using college

students as mock jurors, they found that the witness who used a hypercorrect speech

style was seen as less competent, convincing, qualified, and intelligent than the

witness who used a normal style.

Simultaneous Speech

Simultaneous speech occurs when two people are speaking at the same time. In the

courtroom, simultaneous speech occurs at ‘turn relevance places’ (points where a

listener assumes that the speaker has finished) and during cross-examination testi-

mony when attorneys interrupt witnesses’ answers with additional questions (O’Barr,

1982). To study the impact of this speech variable on jurors’ perceptions of court-

room participants, the Law and Language Project researchers created four segments

of audiotaped testimony that contained variations in the frequency of simultaneous

speech (none or frequent) and the identity of the speaker (attorney or witness) that

stopped speaking to let the other person finish. Using undergraduate students as

mock jurors, the researchers found that witnesses were perceived as having more

control than attorneys in all conditions with simultaneous speech (O’Barr, 1982).

Content Analysis of Courtroom Transcripts

Parkinson and his colleagues (Parkinson, 1981; Parkinson et al., 1983) have used

content analysis to examine the relation between speech variables and case



outcomes in actual trials. In the first study, Parkinson (1981) analyzed transcripts

from 38 criminal cases to explore the relation between characteristics of defendants’

speaking styles and trial outcomes. Statements from criminal defendants’ testimony

were coded for the four areas of testimony style investigated in the Law and

Language Project studies (power, narrative, hypercorrectness, simultaneous speech)

and 14 ‘lexical variables’ (e.g., space relationship language, abstract language, polite

language). Acquittal was found to be associated with frequent use of polite forms

(sir, please) and grammatically complete sentences, and infrequent use of self-

references (first person pronouns). None of the Law and Language Project variables

were significantly related to case outcome. In the second study, Parkinson and his

colleagues (Parkinson et al., 1983) analyzed transcripts from civil cases. For

plaintiffs, successful case outcome was associated with verbosity (number of words

spoken) and frequent use of adjectives and adverbs. For defendants, successful

outcome was associated with frequent use of third person pronouns and infrequent

use of verbs and first person pronouns.

Hurwitz et al. (1992) used content analysis to examine ‘how expert witnesses’

persuasiveness was related to the language they used in their testimony’ (p. 1909).

These researchers analyzed 43 segments of courtroom testimony from several

different types of expert witness (e.g., builder/contractor, biochemist, chemist,

physician, and others). Each testimony segment was approximately 20 minutes

long. The researchers used a computer program to identify ‘semantic categories’

(e.g., words or phrases) in the testimony segments that were ‘relevant to an analysis

of expert testimony,’ and compared the occurrence of the ‘semantic categories’ with

undergraduate research subjects’ ratings of the experts’ credibility (p. 1919). Based

on the subjects’ ratings, the experts were divided into a low credibility and high

credibility group. Results from a discriminant function analysis indicated that high

credibility experts were more likely to use the passive voice and words associated

with either academic institutions (e.g., university, doctor, laboratory) or institutions

that symbolize power (e.g., state, police, head).

Although findings from content analysis studies have provided some interesting

information about the structure of effective courtroom testimony, their results

should be interpreted cautiously. Because jury verdicts are based on a myriad of

factors (Cutler, 1990), only one of which is testimony style, the findings from

Parkinson’s studies are best interpreted as identifying speech characteristics that

need to be studied in more controlled settings, where the effects of these character-

istics can be isolated and examined. A good example of the need to follow up

findings from content analysis studies is provided by the study of Hurwitz et al. For

instance, they found that credible experts were more likely to use words associated

with academic affiliations. However, recent findings from two mock-jury research

studies suggest that experts who are associated with prestigious institutions are

sometimes seen as less credible than other experts, especially when the prestigious

expert is highly paid (Cooper, Bennett, & Sukel, 1996; Cooper & Neuhaus, 2000).

Summary: Verbal Communication

Findings from studies of courtroom testimony suggest that effective witnesses use a

powerful speaking style, express confidence in themselves when asked to do so,



provide descriptive answers to attorneys’ questions, and avoid hypercorrect speech.

However, because most of these studies used all or nothing manipulations of speech

variables, relatively little is known about how moderate levels of these variables

affect perceptions of credibility and persuasiveness.

NONVERBAL COMMUNICATION

Some scholars have argued that nonverbal cues are more important than verbal cues

for communicating messages. Albert Mehrabian (1981), a noted nonverbal com-

munication researcher, has gone as far as to claim that 93% of the emotional

information transmitted by a message can be attributed to nonverbal cues. In the

courtroom, witnesses’ gestures, facial expressions, and body movements provide the

background upon which their speech is superimposed (Conley et al., 1978), and

courtroom strategists maintain that ineffective nonverbal communication di-

minishes witnesses’ persuasiveness (see, e.g., Smith & Malandro, 1985).

There have been few studies of nonverbal communication in courtroom settings.

Therefore, this section reviews existing studies of nonverbal communication in both

legal and nonlegal settings, and makes the assumption that studies from nonlegal

settings are generalizable to courtroom settings. The section is divided into four

subsections: (i) facial communication, (ii) body communication, (iii) vocal com-

munication, and (iv) patterns of nonverbal behavior. The patterns of nonverbal

behavior subsection describes how different combinations of facial, body, and vocal

cues are thought to communicate nervousness, deception, and power. Although

some of the studies that are discussed in this section provide information about the

relation between a person’s nonverbal behavior(s) and their actual internal or

emotional state, this review focuses on studies that have examined how nonverbal

behaviors are perceived by others. This section focuses on these studies because the

accuracy of jurors’ interpretations of a nonverbal behavior is not as important as

their beliefs about what the nonverbal behavior means. It is the meaning that jurors

assign to a nonverbal behavior that impacts their evaluations of witnesses.

Facial Communication

The face provides a wealth of communicative information and is considered to be

the primary site for the communication of emotional states (see Leathers, 1997;

Mehrabian, 1981). During witness preparation, witnesses are taught to avoid facial

expressions that convey anger, arrogance, insensitivity, or indifference (Aron &

Rosner, 1998; Smith & Malandro, 1985). Witnesses are, however, encouraged to

show genuine emotions, such as sadness and happiness, but are instructed to avoid

hysterical emotional displays and facial expressions that can be interpreted as

nervousness.

Existing research indicates that humans are sensitive to changes in facial expres-

sions and that their interpretations of these changes are typically generalizable across

people and cultures. Paul Ekman and his colleagues (Ekman, Friesen, & Ellsworth,

1982) have identified more than 40 distinguishable ‘units’ of facial expression and

have found that observers usually interpret facial expressions as reflecting one of



seven general emotions: happiness, surprise, fear, anger, sadness, disgust, or

interest. Attorneys and trial consultants believe that jurors use information from

facial expressions when making inferences about witnesses’ emotions and that these

inferences can impact their perceptions of witnesses’ credibility (Smith & Malandro,

1985).

Much of the research examining the relation between specific facial expressions

by speakers and perceptions of their credibility has focused on eye contact and gaze

(research examining facial expressions specifically associated with deception and/or

nervousness are discussed later in this article). In the courtroom, the eyes are

believed to be the most influential facial features for communicating nonverbally

(Leathers, 1997; Smith & Malandro, 1985). Studies in nonlegal settings have shown

that eye contact (eye to eye looking) and eye gaze (eye to face looking) provide

information a about a person’s internal state and are used by observers to make

inferences about the person. Although these studies have typically examined the role

of eye contact in nonlegal settings, findings from this body of research are assumed

to be generalizable to courtroom settings (see Leathers, 1997).

In his comprehensive review of the eye gaze and eye contact literature, Kleinke

(1986) found that the gazing behaviors of individuals are generally consistent across

times and settings. He also found that variations in gaze are associated with factors

such as mood and self-assuredness. High amounts of gaze are associated with

feelings of pleasantness and confidence, and low amounts of gaze are associated with

feelings of anxiety, depression, nervousness, submissiveness, passivity, and embar-

rassment. In addition, high amounts of gaze are associated with observer ratings of

likeableness, competence, and attractiveness. The relation between these variables

and amount of eye contact does, however, appear to be curvilinear, with constant or

prolonged gazing (i.e., staring) being interpreted as an attempt to threaten or

dominate.

To examine the relation between witnesses’ looking behaviors and jurors’

perceptions of their credibility, Hemsley and Doob (1978) created two videotaped

versions of a defense witness’s testimony in a hypothetical robbery case. In the gaze

maintenance version, the witness (a confederate) looked steadily toward an off-

screen attorney (another confederate) who was asking him questions. In the gaze

aversion condition, the witness ‘looked slightly downward’ while testifying (p. 138).

The content of the witness’s testimony was identical in the two conditions. The

witness’s testimony was intended to substantiate the defendant’s alibi that he was at

a hockey game when the robbery occurred. Using undergraduate students as mock

jurors, the researchers found that the witness in the gaze maintenance condition was

perceived as being more believable than the witness in the gaze aversion condition

and that the defendant was more likely to be found guilty when the defense witness

averted his gaze.

Because Hemsley and Doob (1978) used an all or nothing manipulation of

looking behavior, their findings are of limited significance to witness preparation

experts and courtroom communication specialists. These practitioners (e.g.,

Leathers, 1997; Smith & Malandro, 1985) place more importance on a series of

studies in nonlegal settings showing that people’s looking behavior while they are

speaking has a greater impact on observers’ ratings of their credibility than their

looking behavior while listening. Specifically, a robust finding from the visual

dominance literature is that confident people make frequent eye contact while



they are speaking and sometimes avoid making eye contact when they become

listeners (Dovidio, Ellyson, Keating, Heltman, & Brown, 1988). These findings

suggest that it is especially important for witnesses to look at jurors while they are

speaking. A more controversial interpretation is that witnesses should look away

from a questioning attorney when they are being cross-examined.

Body Communication

Body movements can have many different meanings (see Ekman & Friesen, 1969).

Some body movements are used intentionally in the place of words (e.g., wave good-

bye), while others are used unintentionally and provide information about internal

states such as nervousness (e.g., finger tapping, leg rocking). Two types of body

movement that are often discussed in the courtroom communication literature are

illustrators and adaptors. Illustrators are gestures that are used to augment or

communicate the intensity of what is being said (Leathers, 1997). Examples include

using an out-stretched arm with a pointing index finger to augment the expression of

anger, and nodding or shaking of the head to indicate level of agreement or

disagreement. The term adaptor is used to describe hand movements that involve

touching part of the body (self-adaptor) or an object in one’s immediate environ-

ment (object-adaptor). Common self-adaptors include touching of the hair or face,

and common object-adaptors include pencil twirling and finger tapping (Leathers,

1997). ‘Fidgeting’ is a familiar term that is used to describes the frequent use of

adaptors (Mehrabian & Friedman, 1986).

According to courtroom communication experts, effective courtroom communica-

tors should use illustrators and avoid using adaptors (LeVan, 1984; Ryan & Svaldi,

1993; Smith & Malandro, 1985). These recommendations are based on the assump-

tions that illustrators make messages more powerful and that adaptors are signs of

nervousness and deceit (research findings pertaining to nervousness, deceit, and power

are discussed individually at the end of the Nonverbal Communication section).

Body communication researchers also differentiate between gestures and pos-

tures (see Leathers, 1997). Gestures are conceptualized as body acts, and are

defined as observable movements with a definite beginning and end. Postures are

conceptualized as body positions, and are defined by a lack of movement for a

discernable amount of time. Postures and gestures that have been shown to be

associated with negative evaluations by others include a rigid or hunched-over body

posture, postural shifts, and adaptor gestures (Leathers, 1997). Positive evaluations

by others are associated with a slight forward lean, a moderately relaxed posture with

head and body facing the audience, infrequent posture shifts, and the use of

illustrator gestures (Leathers, 1997). Gestures and postures that are interpreted

positively are associated with likeableness and assertiveness, and are believed to be

important for effective courtroom communication (Aron & Rosner, 1998; LeVan,

1984; Smith & Malandro, 1985).

Vocal Cues

Vocal cues convey meaning that is not communicated through the content of the

words that are being spoken. For example, the statement ‘You’ve got to believe me’



can be read to convey anger, fear, grief, desperation, or indifference. It is the way

that the sentence is read and not the words that it contains that determines its

meaning. Vocal cues such as loudness, pitch, speech rate, pronunciation, and

response latency can impact how a verbal statement is interpreted by a listener

(Leathers, 1997; Frick, 1985). These same vocal cues are believed to impact jurors’

perceptions of witnesses’ credibility, likeability, and competence. For example,

Smith and Malandro (1985) maintain that persuasive courtroom communicators

speak loudly and at a moderately fast rate with a low pitch. In addition, they argue

that effective courtroom speakers use frequent variations in pitch to keep their voices

from sounding monotone, but do not end statements with a rise in pitch because this

cue is perceived as a sign of uncertainty.

Smith and Malandro’s (1985) recommendations are generally consistent with

findings from the vocal communication literature (see Frick, 1985; Leathers, 1997).

There is abundant evidence suggesting that speakers’ vocal cues are related to their

emotional state; however, because loudness, pitch, and speech rate are often

correlated, researchers have not been able to agree on defining patterns of vocal

characteristics for specific emotions (Frick, 1985). Nevertheless, a consistent

finding from the this literature is that emotions involving arousal (e.g., anger,

happiness, fear) are signaled by increased pitch height, pitch range, loudness, and

speech rate (Frick, 1985). Indifference is usually characterized by a low pitch and a

fast rate, and contempt, boredom, and grief are associated with a low pitch and a

slow rate (Frick, 1985).

Although researchers have not been able to identify exact combinations of vocal cues

that speakers use to convey specific emotions, it appears that listeners can accurately

identify some emotions using only vocal cues (Leathers, 1997). For example, Davitz

and Davitz (1959) gave eight students a list of ten emotions and asked them to read the

alphabet ten times, each time communicating a different emotion. The ten emotions

were anger, nervousness, sadness, happiness, sympathy, satisfaction, love, fear, jea-

lousy, and pride. Other students listened to audiotapes of the speakers and were asked

to judge which of the ten emotions the speakers were attempting to convey. The

researchers found that the judges were able to detect all ten of the emotions at an above-

chance rate and that judges were especially good at identifying anger, nervousness,

sadness, happiness, and sympathy. Reviews of similar studies have concluded that vocal

cues alone are an effective medium for the communication of these and other emotions

(see Harper, Wiens, & Matarazzo, 1978; Leathers, 1997).

Research has shown that listeners use vocal cues to make inferences about

speakers’ competence and credibility in nonlegal settings. Fluent speakers who

speak at a moderately fast rate and use variations in pitch and loudness are perceived

as being credible (see Erickson et al., 1978; Leathers, 1997; Miller, Maruyana,

Beaber, & Valore, 1976; Scherer, London, & Wolf, 1973). Credible speakers also

avoid using a rise in pitch at the end of a sentence because this vocal cue is usually

interpreted as a sign of uncertainty (Frick, 1985).

Patterns of Nonverbal Behavior

Although the eyes, body, and voice each make unique contributions to the expres-

sion of a nonverbal message, they typically work in conjunction to express a single



emotion (Burgoon, Birk, & Pfau, 1990). In the courtroom, jurors are able to

evaluate all nonverbal behaviors at once. This article now turns to a discussion of

the patterns of nonverbal behaviors that are thought to characterize nervousness,

deception, and power, and their impact on observers’ perceptions of speakers’

credibility and persuasiveness.

Nervousness

A repeated finding from the impression formation research literature is that

observers place more emphasis on negative information about others than on

positive information (Leathers, 1997). In accordance with this finding, courtroom

communication experts believe that jurors are especially likely to be influenced by

nonverbal behaviors that can be interpreted as signs of nervousness or deception.

Researchers have found that lay observers can reliably detect nervousness in other

people (Harrigan, Harrigan, Sale, & Rosenthal, 1996; Harrigan, Lucic, Bailyn,

Zarnowiecki, & Rosenthal, 1992). Despite individual differences in the ways that

people express nervousness (Frick, 1985), several behaviors are almost always

attributed to it (Harrigan & Taing, 1997). For example, people who frequently use

self- and object-adaptors are seen as fidgety and nervous (Leathers, 1997; Mehrabian

& Friedman, 1986). Most other extraneous movements that serve no identifiable

purpose are also frequently interpreted as signs of nervousness (e.g., foot tapping, hand

wringing). Other behavioral manifestations of nervousness include an increase in vocal

pitch, frequent blinking and lip licking, and an increase or decrease in smiling (see

Frick, 1985; Harrigan & Taing, 1997; Leathers, 1997). A well known demonstration

of the relation between smiling and nervousness was provided by Milgram’s (1963)

classic obedience study. Over one-third of Milgram’s subjects displayed smiling or

laughter when they thought that they were delivering shocks to other people.

To study jurors’ perceptions of nervous witnesses, Pryor and Buchanan (1984)

videotaped a male actor testifying as a criminal defendant using either high,

moderate, or low amounts of nervous behavior. In the high nervousness condition,

the defendant used self-adaptors, made infrequent eye contact, and used vocal

pauses. In the moderate nervousness condition, the defendant used moderate

amounts of the high nervousness behaviors. In the low nervousness condition, the

defendant made frequent eye contact and did not use adaptors or vocal pauses.

Mock jurors’ ratings of the videotapes indicated that the low nervousness defendant

was seen as being more competent, trustworthy, and intelligent than the high and

moderate nervousness defendants. Similar results were obtained by Bothwell and

Jalil (1992). In this study, research participants witnessed a staged crime and then

testified in front of mock jurors about what they had seen. Jurors’ ratings of the

witnesses’ confidence and nervousness were negatively correlated.

Deception

One reason why witnesses may be nervous is because they are lying. There have been

many attempts to identify behaviors that accompany lying in legal and nonlegal

settings. Although researchers have found that some behaviors are often associated



with deception (e.g., speech hesitations, voice pitch, pupil dilation, see Zuckerman,

DePaulo, & Rosenthal, 1981), Paul Ekman (1989), arguably the most recognized

expert in this field, maintains that there are no behavioral signs that are always

attributable to lying. Ekman and his colleagues have been able to train observers to use

facial expressions and voice characteristics to reliably discriminate subjects who are

and are not lying (see Ekman & O’Sullivan, 1991); however, they have also found that

lay observers and incorrectly trained observers (e.g., many police officers) are not able

to detect liars at an above-chance rate (Ekman, 1989; Ekman & O’Sullivan, 1991).

Most lay observers are unsuccessful at detecting liars because they infer lying from

behavioral cues that are not reliable indicants of lying, such as signs of nervousness

(Ekman, 1989; Hocking, Miller, & Fontes, 1978; Zuckerman, Koestner, &

Driver, 1981). For example, Feldman and Chesley (1984) examined the relation

between signs of nervousness and perceptions of deceitfulness by videotaping a male

actor testifying as a criminal defendant using either high or low amounts of nervous

behaviors. In the high nervousness condition, the defendant used self-adaptors and

vocal pauses, made postural shifts, and frequently paused before responding (high

response latency). In the low nervousness condition, the defendant did not exhibit

these behaviors. Mock jurors’ ratings of the videotapes indicated that the low

nervousness defendant was seen as being more believable than the high nervousness

defendant. Similar findings have been obtained in studies of deceptive behavior in

nonlegal settings (e.g., Stiff & Miller, 1986).

Although liars can be nervous, nervous people are not necessarily liars. In addition,

many liars do not appear nervous. Ekman (1989) argues that many people who are

motivated to succeed in lying are able to mask signs of nervousness, such as self-

adaptors, leg movements, and latency in speech onset. Research studies examining

this issue have, however, provided mixed results. For instance, several researches have

found that research subjects who are told as part of a study that being able to deceive

is an adaptive skill are less successful at deceiving others than subjects who do not

receive this type of motivation manipulation (DePaulo & Kirkendol, 1988; Forrest &

Feldman, 2000). In contrast, other researchers have found that liars can control their

use of facial expressions (e.g., eye contact, smiling) and hand gestures that are

associated with lay observers’ beliefs about deception (Bond, Kahler, & Paolicelli,

1985; Zuckerman, Larrance, Spiegel, and Klorman, 1981), and that people who are

high in self-monitoring are especially good at deceiving when they are given an

opportunity to rehearse their lies (Miller, deTurck, & Kalbfleisch, 1983). None-

theless, lay observers use behaviors associated with nervousness to make inferences

about a speaker’s honesty (see Zuckerman et al., 1981b), and many are unrealistically

confident about their ability to identify liars from these cues alone (Hocking et al.,1978). Indeed, findings from a recent meta-analysis show that the average correlation

between the accuracy of observers’ deception judgements and their confidence in

those judgements is not significantly different from zero (r¼ .04, DePaulo, Charlton,

Cooper, Lindsay, & Muhlenbruck, 1997).

Nonverbal Power

If nervous witnesses are perceived as being incompetent and/or deceitful, confident

witnesses should be perceived as being competent and honest. Courtroom



communication experts believe this to be true and encourage witnesses to convey

confidence and power when testifying (see Ryan & Svaldi, 1993; Smith & Malandro,

1985). Karen Lisko (1992) hypothesized that nonverbal behavior in the courtroom

could be classified as being powerful or powerless, just as courtroom language has

been found to be amenable to this type of classification (see O’Barr, 1982). To

examine this hypothesis, she videotaped actors reading (acting out) the powerful

and powerless trial transcripts of witness testimony that were used in the Law and

Language Project study of linguistic power (see Erickson et al., 1978). Each actor

read each transcript twice, once using a powerful nonverbal style and once using a

powerless nonverbal style. In the powerful nonverbal style conditions, the actors

made consistent and direct eye contact with an off-camera attorney, leaned slightly

forward with an erect posture, and had ‘a general appearance of relaxed confidence’

(Lisko, 1992, p. 30). In the powerless nonverbal style conditions, the actors made

infrequent eye contact, lowered their chins, occasionally turned their heads, folded

their hands in their laps, and leaned to the side. Mock jurors’ ratings of the witnesses

and their testimony indicated that witnesses who used a powerful linguistic style and

a powerful nonverbal style received the highest credibility ratings. Witnesses using a

powerful nonverbal style and powerless linguistic style were seen as being more

credible than witnesses using a powerless nonverbal style and powerful linguistic

style. These findings suggest that nonverbal power may have a greater impact on

jurors attitudes than linguistic power.

There are, however, times when attorneys believe that it is beneficial for a witness

to appear powerless. These attorneys believe that a powerful presentational style

may negatively influence jurors when the witness is a criminal defendant who is

charged with a violent crime. This rationale has been applied by defense strategists

in high profile cases such as the William Kennedy Smith rape trial and the murder

trials of Eric and Lyle Menendez. The defendants in these cases were made to

appear boyish and harmless to make it difficult for jurors’ to believe that they were

violent criminals. Studies that have examined the relation between powerful

behavior in the courtroom and perceptions of aggressiveness have provided incon-

clusive results (e.g., Bradac et al., 1981) and further research in this area is needed.

One way that witnesses can show a lack of nonverbal power is through excessive

displays of emotion. Witness preparation experts encourage witnesses to show

genuine emotions and to avoid melodramatic emotional displays (Aron & Rosner,

1998; Smith & Malandro, 1985). To study the relation between a defendant’s

emotionality and jurors’ perceptions of guilt, Salekin, Ogloff, McFarland, and

Rogers (1995) created videotapes of male and female defendants using either a

high, medium, or low level of affect when testifying. In the high affect conditions, the

defendants cried and responded emotionally to questions that would not normally

elicit an emotional response. In the low affect conditions, the defendants responded

using a ‘flat tone’ and ‘stoic manner’ (p. 297). In the moderate affect conditions, the

defendants responded emotionally to questions that would elicit an emotional

response from most people. The researchers found no differences in mock jurors’

perceptions of guilt when the defendant was male, but found that the female

defendant was most likely to be perceived as being culpable when she displayed

extreme affect (high or flat). Courtroom communication experts (e.g., Smith &

Malandro, 1985) have argued that excessive displays of emotion by both male and

female witnesses are evaluated negatively by jurors. Thus, with the exception of the



null finding for males, the findings of Salekin et al. (1995) are consistent with their

recommendations.

Summary: Nonverbal Communication

Studies of nonverbal communication in legal and nonlegal settings have shown that

a communicator’s nonverbal behavior can have a significant impact on how he or

she is perceived by others. Findings from these studies suggest that effective

communicators make frequent eye contact with attorneys and jurors (especially

while speaking), use illustrator gestures, lean forward slightly, have a relaxed

posture, face their head and body toward their audience (jury and attorney), express

genuine emotions, and speak at a moderately fast rate using a loud voice with

variations in pitch. Ineffective communicators avert their gaze (especially when

speaking), use self- and object-adaptors, make frequent posture shifts, have rigid

postures, pause before answering questions, display extreme affect (flat or melodra-

matic), and speak slowly using a soft and flat voice.

CREDIBILITY AND PERSUASION: CONCEPTUAL

RELATIONS IN WITNESS PREPARATION

To this point, it has been argued that witness preparation procedures are designed to

improve witnesses’ testimony delivery skills and that testimony delivery skills can

have an impact on jurors’ attitudes about the credibility and persuasiveness of

witnesses. Current theories of persuasion suggest that testimony delivery skills and

credibility are likely to influence jurors’ attitudes in specific identifiable circum-

stances. This section provides an overview of the elaboration likelihood model of

persuasion (ELM: Petty & Cacioppo, 1986) and uses it to identify situations in

which testimony delivery skills should have an impact on jurors’ attitudes.

Until the late 1970s, most researchers assumed that credibility had a straight-

forward effect on persuasion (Petty & Wegener, 1999). It was believed that highly

credible sources were always more persuasive than less credible sources. More

recent research has shown that the relation between source credibility and persua-

sion is moderated by both message and receiver characteristics. Today, the most

widely accepted model of persuasion is the ELM. The ELM was developed, in part,

to account for research findings showing that highly credible sources are not always

more persuasive than less credible sources (Petty & Wegener, 1999).

The ELM maintains that there are two routes to persuasion, the central route and

the peripheral route. Persuasion via the central route occurs when attitudes change

as a result of extensive and effortful information processing. The more motivated,

able, and interested people are, the more likely they will be to process information

via the central route (Petty & Cacioppo, 1986; Petty & Wegener, 1999). The second

route to persuasion is the peripheral route. Persuasion via the peripheral route

occurs when people are either unmotivated or not able to process a message. Under

these circumstances, they often rely on peripheral characteristics, such as source

credibility and physical attractiveness, when forming or changing attitudes (Petty &

Cacioppo, 1986; Petty & Wegener, 1999).



According to the ELM, testimony delivery skills and credibility should influence

persuasion when jurors lack the motivation or ability to process the content of

witnesses’ testimony (i.e., engage in peripheral-route processing). Research findings

from the persuasion literature generally support this assertion. For instance, Forrest

and Feldman (2000) found that uninvolved observers were more accurate at

detecting deception than involved observers. These researchers argue that the

involved observers focused on the verbal content of the speakers’ messages

(central-route processing), which contains few deception cues, whereas uninvolved

observers focused on the speakers’ nonverbal behaviors (peripheral-route proces-

sing), which contain more deception cues.

Recent research has also shown that credibility can influence attitudes when

people process a message via the central route. Chaiken and Maheswaran (1994)

found that people who were highly motivated to process a message were persuaded

by source credibility when they received a message that contained both strong and

weak arguments. Under these circumstances, highly motivated people were more

likely to have favorable thoughts about the content of the message when it came

from a high-credibility source compared with a low-credibility source. In a similar

study, Moore, Hausknecht, and Thamodaran (1986) found that people who were

highly motivated to process a message were persuaded by source credibility when

they were presented with a message that was difficult to comprehend. In this study,

the message was difficult to comprehend because it was spoken at a moderately fast

pace (but not so fast as to prevent central-route processing). When highly motivated

people heard the difficult to comprehend message, they were more likely to think

about the message (i.e., process it via the central route) when it came from a credible

source. Both of these studies show that source credibility can impact the likelihood

that someone will process a message centrally.

In sum, source credibility has been found to impact persuasion when people are

either unmotivated or unable to process a message (i.e., process the message via the

peripheral route), the message is ambiguous, or the message is difficult to compre-

hend. If the ELM is applicable to courtroom settings, testimony delivery skills

should impact jurors’ attitudes under these same circumstances.

For the most part, the ELM has not been tested in studies examining persuasion

in the courtroom. Indirect support for the ELM comes from mock jury research

showing that jurors’ legal decisions are most likely to be influenced by source

characteristics (e.g., race, physical attractiveness) when jurors are given relatively

little case-related information (Baumeister & Darley, 1982; Jones, 1997; Reskin

& Visher, 1986). These findings are consistent with the ELM because mock jurors

must rely on peripheral cues to make decisions when they have no other

information. Two recent studies by Joel Cooper and his colleagues have, however,

examined specifically the usefulness of the ELM as a model for explaining verdicts in

jury trials (Cooper et al., 1996; Cooper & Neuhaus, 2000). Their work has focused

on how mock jurors evaluate testimony from expert witnesses. In both studies,

Cooper and his colleagues found that most mock jurors do not process expert

testimony via the central route when the expert’s testimony is ‘scientifically

complex’ (e.g., expert uses high vocabulary level, scientific jargon). When testimony

is complex, mock jurors use peripheral cues such as the expert’s credentials

when making decisions about culpability. These findings are consistent with

the ELM.



Although Cooper’s work has focused on expert testimony, it is likely that the

ELM is a useful model for understanding how jurors use and evaluate testimony

from other types of witness. There are many aspects of real-life trials that can

discourage central-route processing. Testimony from trials may be difficult for

jurors to process because it is ambiguous, complex, or simply too voluminous to

remember (see Cecil, Hans, & Wiggins, 1991; Faigman & Baglioni, 1988;

Goodman, Greene, & Loftus, 1985; Thompson & Schumann, 1987). In these

circumstances, testimony delivery skills are likely to become more salient to jurors.

Juror characteristics can also influence the extent to which jurors meaningly process

witnesses’ testimony. Jurors who are bored, tired, hungry, stressed, or simply not

interested in being a juror will be less likely to think about the content of witnesses’

testimony than jurors who are alert, motivated, and interested.

Summary: ELM and Witness Testimony

If jurors are motivated to listen to witnesses, find their testimony interesting, and are

able to understand the messages that are being conveyed, they will process

testimony through the central route and will not be influenced by peripheral

cues such as credibility and testimony delivery skill. However, it appears that there

are many circumstances in which jurors will be either unmotivated or not able to

process the content of witnesses’ testimony. In these situations, witnesses’ testimony

delivery skills will likely influence the extent to which jurors are persuaded by their

testimony. Thus, attorneys who do not prepare their witnesses are taking a

substantial risk by assuming that every juror will be motivated and able to process

all of the evidence that is presented by their witnesses.

NEEDED WITNESS PREPARATION RESEARCH

Although multiple lines of research suggest that testimony delivery skills can impact

jurors’ evaluations of witnesses’ testimony, little is known about whether or not

testimony delivery skills can be modified through witness preparation training. This

section describes four stages of needed witness preparation research. The four stages

are (i) studies of overall effectiveness, (ii) effectiveness studies of specific witness

preparation training procedures, (iii) studies examining why witness preparation

training is effective, and (iv) the development and testing of new witness preparation

training techniques.

The first stage of witness preparation research should examine the effectiveness of

commonly used witness preparation procedures. Studies in this stage should seek to

answer the following question: do testimony delivery skills improve from pre-

preparation to post-preparation? Improvement can be assessed by using trained

observers’ ratings of witnesses’ use of specific verbal and nonverbal communication

skills, or by having mock jurors evaluate witnesses’ credibility. Researches should

also attempt to determine whether trained and untrained witnesses differ in their

ability to persuade mock jurors (i.e., influence their attitudes about the topic of

their testimony). Because this first stage of research would examine already

existing witness preparation procedures, real witnesses could be studied using



quasi-experimental methodology. For example, researchers could have mock jurors

evaluate the videotaped testimony of witnesses from real cases. Studies in stage one

could also investigate the dose–response relation between time spent in witness

preparation and effectiveness. It is possible that increased preparation time leads to

more effective testimony (a linear relation); however, it is also conceivable that too

much preparation may be harmful, making overly prepared witnesses appear

coached (a curvilinear relation). Finally, stage one research studies should examine

the relations between witness characteristics (e.g., type of witness, sex, ethnicity,

age, education) and responsivity to preparation procedures.

Stage two research should examine the effectiveness of specific witness prepara-

tion training techniques. The goal of stage two research would be to identify

effective, inert, and potentially harmful components of the witness preparation

procedures studied in stage one. Research in stage two could examine separately, or

in combination, each of the witness preparation techniques outlined in Table 1. For

example, researchers could determine whether testimony rehearsal alone is enough

to improve testimony quality, or whether witnesses need to receive feedback from

mock jurors before their testimony improves noticeably. Stage two research could

also examine which, if any, witness preparation techniques may encourage perjured

testimony. Because of the experimental nature of stage two research, using real

witnesses would not feasible. However, witnesses from recently concluded cases,

expert witnesses looking to improve their testifying skills, and volunteers in

psychological studies could all be prepared in experimental studies.

The third stage of witness preparation research should seek to determine why and

when witness preparation procedures are effective. Do they help witnesses learn new

skills? Do witness preparation procedures improve confidence, credibility, and/or

persuasiveness? Do they reduce nervousness? Do they make witnesses more con-

fident or do they only make witnesses appear more confident? Research in stage

three would also attempt to examine the usefulness of the ELM in explaining how

jurors are influenced by testimony delivery skills.

Stage four research should focus on the modification of existing witness prepara-

tion techniques and the creation of new preparation techniques. The goal of stage

four research would be to produce the most effective witness preparation techni-

ques. The new techniques would then be validated using stage two and three

studies.

Witness preparation research should use audiotaped or videotaped testimony.

Vignette methodology is generally not appropriate for this type of research because

raters and mock jurors must be able to see and hear witnesses to make realistic

ratings of their testimony delivery skills. However, verbatim transcripts of witnesses’

testimony can be used when researchers want to study the effects of testimony

content while controlling for nonverbal and vocal cues. In addition, testimony

transcripts can be submitted to computer based content analysis procedures to

study the influence of witness preparation training on speech variables (e.g., answer

length, use of nouns, etc). Nevertheless, audiotaped and videotaped testimony are

preferable for witness preparation training research because they allow researchers

to study the effects of witness preparation training via more realistic media (i.e., as

real jurors would experience them). Audiotaped testimony is beneficial because it

can be used to isolate the effects of training on vocal cues. Researchers can use

videotaped testimony without sound to isolate the effects of training on nonverbal



communication skills, or use videotaped testimony with sound to examine how

overall presentation is affected by preparation training. To maximize external

validity, some researchers may want to use live testimony (in simulated trials) and

have witnesses testify in the presence of mock jurors. There are, however, some

substantial problems with using live testimony. Testimony quality could vary greatly

from one session to the next. In addition, each session could be considered a

testimony rehearsal (a component of most witness preparation procedures) and it is

possible that the witness’s testimony delivery skills would improve from one session

to the next. Nevertheless, having witnesses testify in front of real people (as opposed

to a camera) has the benefit of allowing researchers to examine witnesses’ testimony,

and jurors’ reactions to witnesses’ testimony, in an environment that is similar to

that of a courtroom.

CONCLUSION

Witness preparation is designed to teach witnesses to use effective testimony

delivery skills so that they will be perceived as being credible and persuasive in

the courtroom. Studies in legal and nonlegal settings have shown that effective

testimony delivery skills (i.e., verbal and nonverbal communication skills) are

associated with perceptions of credibility and persuasiveness. However, the extent

to which testimony delivery skills can be modified through witness preparation

training is still not known. The effectiveness of these procedures has traditionally

been supported through anecdotal reports by practicing attorneys (e.g., Herndon &

Karl, 1978; Wagstaff, 1989). This article has proposed an organizational framework

that can be used for conducting witness preparation research. This research is

needed to substantiate the procedures used by attorneys in anecdotal cases so that

empirically driven witness preparation training programs can be developed. The

development of such training programs should encourage attorneys and trial

consultants to use ethical and effective witness preparation training procedures.

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What do we really know about witness preparation?