Trials have resumed in courts around the country, ushering in an unprecedented era of changes in trial practice and in the physical setting of the courtroom to account for COVID-19. These changes are designed to help maintain a safe environment, but as we know, they have required litigants and court staff to adapt and adjust to a new normal.
But witnesses, too, are stepping into the courtroom facing new unknowns. Safety measures such as the use of distance among all of the parties and the jurors in the courtroom, physical barriers such as plastic or glass dividers, and masks and face shields by lawyers and witnesses certainly present new challenges that should be factored in when preparing a witness.
Indeed, courts are already implementing various modifications to allow for live witness testimony. A Lorain County, Ohio courtroom had its first jury trial in early August with many added precautions. Among these are transparent plexiglass dividers between each chair in the jury box and between the jury and the well. When considering how to handle witnesses, criminal defense attorneys suggested they wear a face shield instead of a mask while testifying so that the jury can see the witnesses’ faces.1 And in Knox County, Tennessee, the court’s solution for witness testimony at its first criminal trial since the lockdown was to have the witness testify without a mask, behind a plexiglass divider.2 Other courts have taken the approach of holding trial in community or conference centers so that parties can be spread even further apart.
This article explores the impact such changes will have on witnesses’ courtroom testimony and offers suggestions for how to prepare your witness to give their best testimony in the COVID courtroom.
The Importance of Nonverbal Witness Communication
In thinking about a place to start with witness preparation, it is helpful to consider what expectations juries have for witnesses. When a consultant is called in to work with witnesses, we often begin with a conversation about the kinds of feedback we hear from jurors at our mock trials, or in post-verdict interviews about witnesses. The expectations jurors have in the current COVID courtroom are unlikely to change much from pre-pandemic trials. Effective witness preparation unpacks these expectations, considering the strengths and weaknesses of the witness with the goal of helping the witness give their best testimony on the stand.
Some of the physical changes to the courtroom will invariably impact the nonverbal aspect of witness communication. While attorneys often focus on what witnesses will say when they prepare them, it is also very important to address nonverbals. Nonverbal messages play a significant role in how a jury reacts to a witness. For example, the perceived credibility of a witness is made up of a juror’s evaluation of the witness’ credentials and experience, a perception of the honesty of the witness, and whether the testimony is viewed as biased or unbiased. Much of what makes up perceived credibility comes through in the witness’ qualifications, how they respond to questioning, and their nonverbal demeanor. When preparing witnesses, there is usually a lot of attention placed on those qualities that have to do with the witness’ experience, and how they will handle questions on the stand. While that is certainly crucial, effective preparation considers their nonverbal habits as well.
To illustrate how important nonverbal communication is to a jury, consider the responses jurors gave us at a recent mock trial: When asked what they would do if a witness’ testimony on the stand conflicted with his or her previous statement, a strong majority of all respondents indicated they would focus on how the witness behaved to determine whether to believe them.3 Of course, it is not just a witness’ credibility that is important; other image dimensions such as likability, attractiveness, and assertiveness influence jurors’ impression of witnesses. These traits are largely comprised of nonverbal messages.
New Physical Courtroom Challenges for Witnesses
When we consider the kinds of barriers that are being put in place in courtrooms to allow for live witness testimony, we must also consider how those barriers may impact jurors’ perception of witnesses. More importantly, will the changes implemented by the court make your witness appear less credible, less likable, or less effective?
Clues to this answer can be found in a recent poll we conducted. In August, we asked a sample of jury eligible people nationwide to give their feedback about some of the changes being considered for witness trial testimony during the pandemic. Not surprisingly, when asked whether the use of a mask by a witness would impact their assessment of the witness, nearly two thirds believed that it would make it harder to figure out if the witness was telling the truth.
We also asked respondents what their preference would be: a witness testifying with a mask on, testifying via video, or a combination of the two. Witnesses wearing masks were the least preferred option, while a combination of the witness testifying live and through a recording was the most preferred option. In other words, prospective jurors desired the immediacy of live testimony, combined with an ability to see all of the witness’ face.
Feedback from our nationwide poll aligns with what many courts around the country are trying to accommodate: physical protections needed to keep everyone safe, but also a way for witnesses to testify that minimally impacts their ability to relate nonverbal messages. The most advantageous setup would be one where the witnesses can express themselves without being hindered in their ability to gesture, which would include keeping their faces uncovered. Therefore, glass or plastic dividers around the witness stand, as some courts have been utilizing, offer the best opportunity for testimony to be as near pre-pandemic quality as possible. The next best alternative would be a face shield, as it allows much of the same effect. It is also important that courtrooms have a plan to ensure witnesses can be heard by everyone in the courtroom through a microphone and speaker system.
One other key consideration is how witness testimony will be impacted by the layout of the pandemic courtroom, given the increased physical separation between the witness, judge, attorneys, and jury. The proper use of space – what communication scholars call “proxemics” – in creating a sense of immediacy in the courtroom helps enhance certain traits that promote persuasive communication. When witness boxes are moved farther away, it creates a greater sense of emotional distance and detachment from the testifying witness. Depending on the kind of case, this can create a tough challenge. For example, if you are defending a medical malpractice case, your client may be relying on the strong teaching and empathic abilities of the treating physician to put a human face on the treatment provided. Some of those qualities would invariably be impacted if that same witness was put inside a plexiglass booth 20 feet away from where jurors are seated (likely behind barriers of their own). We therefore recommend closing that distance gap by projecting the live witness on a large screen so jurors who are far away can still see the nonverbal communication of a witness 20 feet away.
New Witness Preparation Challenges
We have discussed some of the physical changes to courtroom layouts due to the pandemic. And we have also considered different dimensions of impression formation that are important to juries when considering the credibility and overall effectiveness of the witness. This all raises an overarching question: What should you change as you prepare your witnesses to testify in the COVID-19 courtroom?
The most restrictive and least desirable scenario would be if a witness must wear a mask. It will be important to instruct the witness to over-articulate their words when they testify. Many of us have been to the grocery store with a mask on and noticed how hard it can be to understand what others are saying, and vice versa. Instructing the witness to over-articulate will make it easier for jury to understand their answers. This will require that the witness practices their direct and cross examination while wearing a mask, exaggerating (within reason) the pronunciation of words. For a jury deprived of seeing the witness’ face, they will instead rely on the eyes, gestures, posture, and tone of voice to try to “read” the emotions of the witness. This should factor into their preparation as well.
Face shields impose fewer restrictions on witnesses’ facial expressions. However, in the case of a face shield, the witness should practice testifying with it before stepping into the courtroom. They may notice at first that it can be disorienting to hear themselves echo back, and can interfere with their ability to hear incoming questions clearly. Since listening is already such an important part of preparing for courtroom testimony, it will be essential that the witness practices listening until they can overcome any face-shield distractions. It is also worth thinking about how they will be heard by the jury, since the shield may block or interfere with the ability of the courtroom microphone to pick up sound.
The least restrictive barrier would be a plexiglass shield or divider placed in front of the witness, and between the witness and the rest of the courtroom participants. Yet, it is still important to consider how the witness will attempt to connect with the jury meaningfully. As mentioned above, plexiglass barriers and greater social distance can get in the way of fostering a sense of rapport with the jury. One solution is to have the witness incorporate demonstratives that they can present to jurors on a larger screen, or can hold and physically interact with. Depending on the witness, it also may be necessary to use larger gestures or emphasize points with greater vocality.
With any of these barriers, make sure the witness will be heard clearly by the jury. For the witness, this can require practicing their rate of speech, how to speak into a microphone if one is available, or how to consistently project their voice if no amplification is provided. Assuming the COVID courtroom includes greater distance between the witness and the jury, rehearse in a space that replicates the experience and the layout. Think of the ability of actors to project their voice and make themselves understood as well at the back of the theatre as in the front row. Two simple adjustments any witness can try is to practice speaking to the back of the room, and practice lifting their faces while speaking while maintaining good posture. This will help them project their voice and exhibit a more positive and open demeanor at the same time.
While obstacles in the COVID courtroom are many, we have already seen the willingness of all parties to step into the unknown in the pursuit of justice. By being aware of the new challenges witnesses face, counsel can help prepare them to excel on the stand through a trial preparation practice that accounts for the changing courtroom.
By: Keith Pounds, Ph.D. – Senior Consultant
1 “Common Pleas Court gearing up to restart jury trials in August.” Chronical Telegram, July 23, 2020.
2 “COVID-19 threat doesn’t scare away Knox citizens summoned for first masked jury trial.” Knoxville News Sentinel, July 21, 2020.
3 “If a witness’ testimony on the stand conflicts with his or her previous statement, I would most likely:” Focus on how the witness behaves (64%); Disregard everything the witness says (20%); Believe what the witness said in a previous statement (10%); or Believe what the witness is saying on the stand (6%), N=62.