The Eyes Have It: Does Your Witness Know How to Look at Jurors?

Telling your witness to look at the jurors during their testimony without teaching them how to do so can be fatal to your case. 

A scared, anxious witness may only dare a quick terrified glance mid-sentence at the jurors, which confirms in the jurors’ minds that yup, this witness is surely hiding something. So much for the witness’s credibility.

Or a witness may attempt to “duke it out” during cross by glaring at the jurors during his or her response, rather than focusing on opposing counsel. This does not benefit your case.

Help your witness look at the jury in a way that enhances their credibility even as it satisfies jurors’ need to see the witness’s eyes to determine veracity.  Which as many of us will remember, is why our mothers would say; “Look me in the eyes when you’re talking to me!”

During direct, suggest that your witness, when they have a response of a couple of sentences or more, to begin their answer by looking at you, to then turn out to the jurors and look at different jurors during the bulk of their response, to conclude their response by turning back to you during the last few words. If the witness can angle their body very slightly towards the jury box, then turning out towards the jurors is smoother. All this sounds easy, and certainly becomes easy, but only with practice.

I have found videorecorded role-play to be the most effective way to help witnesses get comfortable with turning out to the jurors. It’s best to do during direct, because during cross, the witness will rarely be given an opportunity to respond with more than a few words, and focusing on opposing counsel is their primary responsibility at that point.

“Look at the jurors,” yes, is a critical and essential instruction, but how it is done can make all the difference to your case.

"You Need a Timeline!"

Timelines are essential to just about any case. I’ve been teased by various attorneys I’ve worked with that I always recommend a timeline, and indeed it’s true.

But there is method to my repeated "You need a timeline!" Movement of events across time is how jurors anchor testimony in their minds. It’s how they create “story” for themselves.

And story is the single most compelling way to get facts and information across to the jurors in a coherent, persuasive manner.

The reason a timeline works so well, is it answers the fundamental question of story-telling: “And then what happened?” It ties together apparently disparate testimony or pieces of evidence. It grounds any narrative in logic, by assigning order to the events.

Timelines need to be designed around a horizontal axis representing time, with “flags” or “boxes” pegged at the appropriate moments in time. Timelines don’t need to be fancy, but different entities should have different colored “flags,” for example, to differentiate them easily. Beyond that, a graphics designer can help give a timeline more visual impact.

The temptation is often to put too much information on a timeline: it’s a tool meant to emphasize and support, not reiterate all the testimony. Several uncluttered, easy-to-read timelines are better than a single one crowded with too much for the eye to readily grasp.

It Takes A Village: Yet Another Focus Group Advantage

I consulted on a case recently where one of the possible witnesses was an individual in a highly respected line of work. This person had some 30-odd years ago been involved in criminal activity, but in the years since had made a wonderful turn-around, and was a veritable pillar of the community, loved and respected.

The attorneys who had interacted with the witness said she was credible, quite charming, and would no doubt make an excellent witness.

With such a brilliant present, would the past matter? The attorneys and I weren’t sure, and figured the best way to find out would be to present the witness to a focus group. Not live, that’s rarely possible, but in a video clip.

Imagine our surprise when what struck the focus group members wasn’t the long-ago criminal activity, but the witness’s “smarmy-ness.” They didn’t find the witness charming, they thought she was smirking. The focus group members stated the witness wasn’t taking the present matter seriously, that her attitude was entirely too cavalier. They did not find her credible at all.

With that, since the witness’s appearance at trial was not obligatory, it was quickly decided NOT to have the witness take the stand. We would never have realized the impact of this particular individual had it not been for the valuable input of the focus group members.

Once again, a focus group saved the day.