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Testifying in the theater of the courtroom.

When the judge read the jury's verdict, the courtroom was stunned. How could this be? It seemed like a simple, open-and-shut case. Later, reporters questioned the jurors who spoke of factors that never occurred to the investigating officers, such as a witness who acted nervous, a police officer who seemed arrogant, and the possibility that evidence had been mishandled. Similar cases now abound, incongruous at first until normally insignificant behaviors prove otherwise.

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The theater of the courtroom has changed in the last 20 years. As many trial consultants have found, the performance of the actors (law enforcement officers, lawyers, and witnesses) in the courtroom impacts the outcome of cases. How people testify and how others perceive them are as important as their testimony. If these actors fail to communicate properly or the jury does not believe them, then all of the effort put into investigating the case will prove pointless. Instead, pretrial work must be presented properly in court; jurors must understand witnesses; testimonies must be competent and reliable; and everyone must present the truth. Often, however, law enforcement officers do not see themselves as actors in this drama.

Today's jury (the audience) has evolved from 30 years ago. Jurors are older, more representative of both sexes, and increasingly racially and ethnically diverse. Further, they have a greater variety of backgrounds and a higher level of education. Jurors arrive loaded with their own notions of the courtroom, what they expect to see and hear, and how others should present the information. Today's jury has seen thousands of hours of television images, which accounts for much of what they anticipate in the courtroom. Unlike their predecessors, they are both more demanding and distrustful. Unsurprisingly, surveys show how often jurors feel disappointed by the performance of the actors during the trial. These disappointments have serious consequences--they translate into mixed-up jurors, dead-locked juries, or acquittals. (1)

Jury surveys and research in communication provide guidance to law enforcement officers on how to be more effective in court, whether sitting at the prosecutor's side as the lead investigator or testifying as a witness. The jury scrutinizes how officers dress, speak, behave, and present before, during, and after testifying. And, where communication, both nonverbal and verbal, must be effective and persuasive, jurors must perceive such presentations as truthful and competent.

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Dress and Attire

Officers must dress specifically for the job in the courtroom. (2) An individual's dress and attire establishes hierarchy and status, essential for projecting a professional presence. Ample evidence suggests that, for males, the traditional dark blue suit, white shirt, and conservative tie projects success, competency, and even veracity. (3) Popular television newscasters seldom vary their attire from this combination of colors. Conversely, officers should avoid brown colors because they do not convey authority, honesty, or erudition as well as blue and grey colors. (4) Officers should refrain from testifying in their uniforms when possible because juror perceptions have shifted over the years--a suit and tie proves the most influential attire, especially in a jury trial.

Female officers should choose comfortable business suits with a conservative length and style. They should avoid loud colors or sexually suggestive attire. Shoes should be comfortable and stylish. Women should avoid wearing high heels or open-toe shoes. Inappropriate or unprofessional clothing that defies convention can distract or even antagonize a jury. (5) Further, women's earrings should conform with conservative wear, and both sexes should avoid displaying tattoos or body piercing. Many people perceive tattoos and excessive body piercing as "blue-collar" artifacts, remnants of rebellion and immature injudiciousness that carry negative implications. (6)

Nonverbal and Verbal Components

Countenance often betrays concern, worry, happiness, even anxiety; it can betray what a person knows or hopes to achieve. (7) Facial expressions can prove revealing and problematic. Displays of indifference, disgust, antipathy, displeasure, or arrogance interfere with a jury's perception either on the stand or at the prosecutor's table. Officers should avoid rolling their eyes (perceived as disrespect) and knitting their eyebrows or forehead (reflecting trouble, strain, or concern), actions jurors readily and universally scrutinize. (8) Officers should present confidence of their case to the public, rather than arrogance, which the jury often perceives and translates negatively. (9)

Openness is integral to effective communication. Honest individuals tend to display more openly than dishonest ones. People who become tense and hide behind objects appear less open, causing others to question veracity. (10) Law enforcement officers should not use hand and arm gestures that detract from openness. (11) They should display their hands with palms up--leaving nothing between them and the jury. Also, officers should emphasize by leaning forward because jurors usually receive this as a sign of commitment, openness, and veracity. (12) Most talented speakers use their hands and arms to illustrate and animate. (13) Emphasis is the nonverbal component of speech that gives gravitas to a statement--a verbal underline. When testifying for hours on the stand, emphasis tells the jury what is important.

Lowering voice pitch for emphasis often proves more productive than raising it. Further, weak or high-pitched voices annoy others. If jurors have to strain to hear a person's voice, or if someone has annoying vocal qualities, jurors often tune them out. A soothing, resonating voice gets jurors' attention. Although this technique may take some effort, officers should practice these skills as actors and newscasters do. (14)

In the Courtroom

Posttrial and mock-trial surveys show that law enforcement officers often fail to connect with juries because they neglect to show jurors respect. (15) Officers should stand when jurors enter the courtroom and turn their attention toward them--actions that earn respect. Further, officers can subtly preen themselves (e.g., pressing down their coat, jacket, dress, or tie)--jurors perceive efforts to groom symbolic of caring, attentiveness, and respect.

Where possible, even before court procedures begin, officers should display warmth and friendliness and smile at others. In most courtrooms, jurors wait in hallways prior to their selection. Officers should greet potential jurors and make eye contact as they walk by; jurors personally may not know the officers, but they will remember glad graces. (16) Further, officers should make eye contact often, but respectfully, with the jury while testifying. (17) Officers should strive for jurors to see them as a friend, rather than as the enemy.

Jurors usually remember information through visualization. A well-prepared visual supports an officer's testimony, which will resonate with jurors during deliberations. Juries want to hear a logical and meaningful story about what happened, and they also want to see it in their minds. (18) If law enforcement officers cannot present the case in a logical order, then they should explain the reason at the beginning of their testimony. Jurors are accustomed to watching a medium that presents stories cogently and in order.

Jurors perceive individuals who come prepared, speak authoritatively with the facts (not generalities), and present their testimony without hesitation as more credible. (19) Officers should speak clearly. Most people normally say approximately 120 words per minute, yet individuals can understand at twice that speed. The slower a person speaks, the greater their chances of lulling the audience. (20) Officers should not use law enforcement terms or acronyms unfamiliar to the jury. If jurors do not understand a word, they will ignore it or, worse, think it means something else. For example, the word paramour becomes power mower.

Jurors tend to remember emotional matters better than factual ones. Where possible, witnesses and victims especially should humanize an event, showing the emotional component. Also, repetition serves well, but not when overdone. In fact, studies suggest that when matters are repeated more than five times, jurors begin to balk at the information. (21) Details are best remembered when presented at the beginning (rule of primacy). (22) Further, prior to the trial, officers should prepare for conceivable questions and try to diffuse vexatious ones.

Witnesses who appear comfortable, open, and genuine will give more effective testimony. (23) They should discuss any issues or concerns before the trial, review their testimony with the prosecutor to ensure it makes sense, and determine if anything about their appearance might detract from their testimony. Witnesses, even experienced ones, should attempt to overcome fears and anxieties about testifying. Such anxieties are reflected in their body language, which, unfortunately, jurors often misconstrue as signs of deception. (24) Biting the lip, touching the nose or the back of the neck, jiggling a foot or leg, tugging at ears, or wringing hands often are misunderstood as evincing mendacity when, in fact, these merely reflect the assuagement of tension or nervousness. No research supports that these behaviors alone indicate deception. (25) If necessary, officers should keep their hands on their lap until they calm down.

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On the stand, officers can be human--cry and admit mistakes--but they never must lie or give the appearance of lying. They should not get tricky or clever; it almost always back-fires. Further, officers should not try to settle a score with opposing counsel, indulge in histrionics or facial gestures, or act blase. They should think carefully about every question and deliberate on each one for the same amount of time, remaining pensive, not reactive. Additionally, officers should not try to fill any silence voids; working this out with the prosecutor ahead of time and remaining mindful of various tactics opposing counsel may use will result in a more effective testimony. As their testimony unfolds, officers should remain attentive and lean into the questioner and the jury.

Communicating effectively is an art form. Skilled actors and newscasters master the art of communication. Acquiring effective communication skills should receive just as much attention as developing interviewing or defensive driving abilities. If jurors doubt an officer's veracity, feel antagonized, or do not understand the officer, they will be reflexive and reciprocate, even though the investigation was faultless. (26)

After testifying, an officer's job still is not complete. Officers should collect their notes and acknowledge the court and jury as they step down. Walking away, whether they leave the court or return to the prosecutor's table, they must remain professional. At the end of the trial, officers should conduct a postmortem, learning from their mistakes and successes on the stand. Attorneys or bailiffs often may agree to evaluate the officer's testimony after the trial, which can provide valuable constructive criticism.

Conclusion

Law enforcement officers play a vital role in the courtroom--that juridical theater where judges and juries make life-altering decisions based, for the most part, on the performance of witnesses and the weight of their testimonies. Jurors expect witnesses to be open and genuine, not clever or tricky.

Those who present before a jury have a duty to communicate effectively, honestly, and with respectful deference. What officers wear and how they speak, behave, and present in the courtroom often determine the effectiveness of their testimonies. This, after all, is the theater where performance truly matters most, where what is said and how it is said will influence jurors. Officers must provide the audience with the information it needs to make effective decisions in the theater of the courtroom.

Endnotes

(1) Daren Fonda, "A Real Head Case," Time, November 24, 2003, 35.

(2) John T. Molloy, Dress for Success (New York, NY: Warner Books, 1975), 12.

(3) Judee K. Burgoon, David B. Buller, and W. Gill Woodall, Nonverbal Communication: The Unspoken Dialogue (Columbus, Ohio: Greyden Press, 1994), 383-385; and Nancy Etcoff, Survival of the Prettiest: The Science of Beauty (New York, NY: Anchor Books, 1999), 79-80.

(4) Supra note 2, 164-165; and Jo-Ellan Dimitrius and Mark Mazzarella, Put Your Best Foot Forward: Make a Great Impression by Taking Control of How Others See You (New York, NY: Fireside, 2002), 171-175.

(5) Supra note 2, 187-196.

(6) Desmond Morris, Body Watching (New York, NY: Crown Publishers, 1985), 80-83.

(7) Ronald B. Adler and George Rodman, Understanding Human Communication (New York, NY: Holt, Rinehart, and Winston, 1988), 337-339.

(8) John Schafer and Joe Navarro, Advanced Interviewing Techniques: Proven Strategies for Law Enforcement, Military, and Security Personnel (Spring-field, IL: Charles C. Thomas, 2003), 73-80.

(9) John A. Call, "Making the Research Work for You," Trial 32, no. 4 (1996): 25.

(10) Joe Navarro and John R. Schafer, "Detecting Deception," FBI Law Enforcement Bulletin, July 2001, 9-13.

(11) Supra note 3 (Burgoon, et al), 384.

(12) Supra note 3 (Burgoon, et al), 378-379.

(13) Mark L. Knapp and Judith A. Hall, Nonverbal Communication in Human Interaction, 3d ed. (New York, NY: Harcourt Brace Jovanovich, 1997), 262-269.

(14) Supra note 4 (Dimitrius and Mazzarela), 203.

(15) Amy Singer, "How to Connect with Jurors," Trial 35, no. 4 (1999): 22.

(16) Jo-Ellan Dimitrius and Mark Mazzarela, Reading People (New York, NY: Ballentine Books, 1998), 45-75.

(17) Supra note 3 (Burgoon, et al), 401.

(18) David A. Wenner, "Preparing for Trial: An Uncommon Approach," Trial 34, no. 1 (1998): 34-35; and supra note 15, 23.

(19) Supra note 9, 23; and supra note 3 (Burgoon, et al), 380.

(20) Supra note 7, 340.

(21) Supra note 18, 34.

(22) Thomas Sannito and Peter J. McGovern, Courtroom Psychology for Trial Lawyers (New York, NY: John Wiley and Sons, 1985), 163-64.

(23) Amy Singer, "Practice Makes Perfect: The Psychology of Witness Preparation," Trial 32, vol. 9, (1996): 70.

(24) Supra note 23, 71.

(25) Charles V. Ford, Lies! Lies! Lies!: The Psychology of Deceit (Washington, DC: American Psychiatric Press, 1996), 198-227; and Joe Navarro, "A Four-Domain Model of Detecting Deception," FBI Law Enforcement Bulletin, June 2003, 20-21.

(26) Robert B. Cialdini, Influence: The Psychology of Persuasion (New York, NY: William Morrow and Company, Inc., 1993), 17-56.

By JOE NAVARRO, M.A.

Mr. Navarro, a retired FBI special agent with the National Security Division's Behavioral Analysis Program, currently provides private consultation to the intelligence community.
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Date:Sep 1, 2004
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