Witness Credibility: How Important Is It?
“A WITNESS WHO IS NOT PARTICULARLY LIKEABLE WILL STILL BE MORE PERSUASIVE THAN A WELL-LIKED WITNESS IF HE IS MORE CREDIBLE.”
Before judges send juries off to deliberate, they often instruct them to consider the credibility of witnesses while they make their decisions. When lawyers choose who their experts will be, their judgment of the witnesses’ credibility is paramount. Books and articles on witness preparation stress the importance of witness credibility. Communication specialists earn big fees by helping witnesses come across as more credible.
The idea that persuasiveness can be enhanced by credibility has become an unquestioned assumption underlying trial preparation. It has achieved the status of common sense. Yet, there is little or no understanding of why a witness may be perceived as more or less credible, when credibility is most important, and if there are times when a high credibility witness may actually backfire.
What Is Credibility?
What is it about a person that makes him or her seem more credible? Psychological research has consistently shown that there are two main factors that underlie credibility: How expert, and how trustworthy, the witness is perceived to be.
When jurors perceive a witness as expert, they believe the witness knows what he is talking about. Jurors believe the witness has bona fide credentials and command of his subject matter.
There are a number of witness behaviors that can enhance the perception of expertise. These include a smooth, assured delivery with the proper amount of eye contact, good diction, and rounded or well-formed sentence structure. A witness will be seen as more expert if he teaches the jurors something new.
Perceptions of expertise are very much weakened by what is called powerless speech. This includes verbal hedges (“I sort of felt uncomfortable.”), the use of polite forms (“Would you please ask the question again?”), and the use of tag questions (“He wasn’t home when I got there, was he?”). Powerless speech is less convincing and can also make the speaker appear less trustworthy. Groping of any kind, slow speech, signs of disorganization, possessing incomplete information, and missing information which has to be looked up at another time, are all signs that jurors will interpret as incompetence.
Trustworthiness is closely related to a jury’s conviction that an attorney or witness will only speak the truth and make assertions based on valid information. When jurors suspect that the source of the communication is being insincere, the attorney or witness is compromised as a trustworthy source. Because of this, it is virtually impossible for an expert witness to possess complete credibility. As long as an expert witness is being paid for his or her time and presents arguments in favor of the position of the party doing the paying, the jury will have a jaundiced view of the trustworthiness of the person.
Although it can never be fully offset, there are ways to minimize the perception of the witness as insincere. The first way is somewhat counterintuitive: The witness can testify, in part, in a way that runs counter to the position of the side he is testifying for. In a product liability case, the defense presented an expert who testified that, in his opinion, the product in question did not cause injury to the plaintiff. In cross-examination, the plaintiff got the witness to testify that he believed the product in question was capable of causing injuries of the nature sustained by the plaintiff. The defense won the case and post-trial juror interview indicated that it was this expert’s testimony that was instrumental. The jurors saw this witness as highly credible as a defense witness because he was willing to admit to a position that was counter to the defense. He was perceived as impartial and disinterested in the outcome. The down side is that you may well lose on the issue about which your expert is testifying in a way that is counter to your position. In this example, it is true that the jurors concluded the product was defective, but they did not believe it caused the plaintiff’s injury.
A witness will also be seen as more credible if he presents positions that are counter to his best interests. That is why whistle-blowers who have either lost their positions subsequent to blowing the whistle or who continue to maintain their positions in the organizations they are attacking are so effective. The most credible expert may belong to an organization that has interests that seem counter to the side for which he is testifying: an expert for an oil company that works for an environmental organization. Other ways of increasing the perceived trustworthiness of an expert are more obvious, but bear mentioning. The expert should be unabashed about being paid for his or her time; the expert should evince some passion about the subject matter (without appearing to be a proselyte); and the expert should possess impressive credentials. Finally, if the jurors believe the expert’s position is shared by a number of other respected organizations and individuals they will find that position more credible, because “if everyone believes it, it must be true.”
When discussing credibility, lawyers and trial consultants frequently emphasize how important it is for the expert to establish rapport with and to be liked by the jury. However, credibility needs to be distinguished from how well the jurors like the witness. It is true that likeability has been linked to persuasiveness but credibility is much more important. A witness who is not particularly likeable will still be more persuasive than a well-liked witness if he is more credible. A curmudgeon can be a very good witness. Post-trial interviews indicated that jurors have liked a witness enormously but discounted that witness’s testimony because he was perceived to lack qualifications or be biased.
Another factor that is often seen to be a component of credibility is physical attractiveness. Research has shown that the more physically attractive a witness, the more persuasive that witness is. However, along with likeability, it is a separate dimension from credibility; the latter is far more important to a juror.
When Is Credibility Important?
After reading the description of what constitutes credibility, the reader may have noticed that none of the traits described had anything to do with the content of what the witness is saying. A basic rule is that the less attention jurors pay to the content of an argument, the more important credibility is. Why is that so?
Persuasion can occur in two ways. It can be either due to central or peripheral routes. With central processing of information, the jurors are likely to expend effort to pay attention to the content of arguments, analyze them, and integrate their conclusions into what they already know. Jurors will give thoughtful consideration to issue-relevant information. Whether or not the juror is persuaded will depend to great degree on the quality of the arguments made.
When persuasion takes peripheral route, not only will jurors be less likely to pay attention to the quality of arguments made, but they will be much more focused on how the argument is being made. A very important peripheral cue is how credible the jurors think the witness is. Other peripheral cues jurors consider are the length of the argument (the longer, the better), how the other people in the courtroom are reacting, the number of details in the argument, and how attractive and likable the witness is.
Jurors are likely to be persuaded by central routes and pay attention to issue-relevant information when they are motivated to do so. Two key motivations are an interest by the juror in the issue and an ability to comprehend what the issue is about.
The more interested the juror and the more able the juror is to understand what is being said, the less likely he is to rely on the peripheral cues described above and the less important the credibility of the witness is. In a complex patent case that involves arcane technology produced by companies the jurors have never heard of, there is likely to be great reliance on peripheral cues. That is because jurors will not be very interested in what the case is about and will have great difficulty comprehending the issues. There will be little motivation to pay attention to what the lawyers and witnesses are saying.
Jurors may find an opening statement by one side more persuasive for no reason other than that it was longer. In complex cases, jurors may justify their decisions by saying that one side had “more facts” or “better witnesses” while they are incapable of saying what those facts were or what the witnesses testified about.
In those cases jurors pay close attention to what is going on about them in the courtroom and use what they see as aids for their decision-making – who does the judge seem to favor; how are other jurors reacting; does the attorney for one side or the other appear upset or bothered? Given that they are not motivated to listen to expert’s testimony they will focus a great deal of attention on the witness’s credibility. If they do indeed find the witness to be expert they will tend to believe him because, after all, “statements by experts can be trusted.” Ironically, the more simple the case and the more interested the jurors, the less important credibility is.
There are certain variables that enhance the probability that a juror will be persuaded by central routes (and that witness credibility will become less important). These variables include: If the argument is repeated, if there are not distractions, if the juror is familiar with the topic of the witness’s testimony, and if the issue being discussed is very relevant or familiar to the juror. Certain types of jurors are also more likely to pay attention to the content of the testimony and less to the credibility of the witness. More educated jurors, jurors who like to think, and jurors with high self-esteem will be less persuaded by peripheral cues.
How Effective Is Credibility In Persuading Jurors?
The effect of persuasion through central routes is much more persistent than persuasion that occurs through peripheral cues like the credibility of a witness. It is also more immune to counter attack.
This is evident in what is called the “sleeper effect,” which is the subject of much controversy. However, there is evidence that arguments made by low- credibility witnesses, while not immediately persuasive, may result in persuasion after the passage of time. That is because our attitudes about who tells us things exist independently from the information we are told and our attitudes sometimes decay more rapidly than our memory for the information. This is particularly true when what the witness has to say is persuasive and the jurors did not find out what made him have low credibility until near the end of his testimony or through the testimony of someone else. Consequently, witness credibility cannot be relied upon for long term and intractable changes in jurors’ beliefs.
There are even times when a high-credibility witness may backfire. This may happen when the witness is testifying about something that the jurors already agree with. With a high credibility witness the jurors will simply sit back and let him do the work. With a low-credibility witness the jurors will make efforts to bolster his testimony by creating in their minds additional and stronger arguments. In post-trial juror interviews, we have sometimes found that a person who was perceived before trial as a very weak witness turned out to be very effective. This is because the jurors worked hard to help the witness who was testifying about something in which the jurors believed.
It may pose too much of a risk to intentionally substitute a low-credibility witness for a high- credibility witness. However, if a high credibility witness will be testifying to jurors who already agree with much of what he will be testifying about, it is essential that the witness involve the jurors in the testimony. In a product liability case, pre-trial research revealed that most jurors agreed with the defense that the benefits of the product outweighed the risks. The defense had an extraordinarily well qualified and capable expert to testify on this point. The research showed that jurors paid little attention to his testimony but listened closely to testimony from someone playing the plaintiff witness attempting to show the benefit outweighed the risk. The defense witness was told to involve the jurors by making the risk/benefit issue into a problem that had to be solved and taking the jurors through the problem-solving process. This was found to engage the jurors much more.
Conclusion
With few exceptions, witness credibility increases persuasiveness. However, the positive effect of credibility has been greatly exaggerated. Under special circumstances it may even backfire.
Contrary to common perception, witness credibility is most important when jurors do not care much about the case and have a hard time understanding it. Indeed, it may well be more critical than the content of testimony.
© 1997 DecisionQuest
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