The Advocate's Use of Social Science Research into Verbal and Konverbai Communication: Zealous Advocacy or Unethical Conduct?

• Author: Captain Jeffrey D. Smith
• Pages: 06

The ability to communicate in a persuasive manner IS an important skill for all lawyers to possess, but it is especially crirical to trial and defense counsel. Social scientists have conducted numerous experiments studying the impact on message recipients of nonverbal and verbal communications. This article examines that research and discusses whether it is ethical for counsel to apply at courts-martial the results of those studies in an effort to increase their persuasiveness in the courtroom

Part One examines nonverbal aspects of courtroom messages and discusses how counsel potentially could use nonverbal communication at courts-martial to increase the persuasiveness of their courtroom presentations Part Two of this article analyzes the use of language in the courtroom by considering two issues. First, does a witness's speech style affect the jury's perception of the witness? Second, can the attorney's choice of words influence rhe substance of a witness's testimony and the jury's recoilection of the evidence? Finally, Part Three addresses whether the Army's Rules of Professional Conduct for Lawyers' prohibit counsel from using the various techniques suggested by research into nonverbal and verbal communications

1. Nonverbal Communication in the Courtroom

When an individual speaks, he or she communicates both verbally and nonverbally. Experts m the field generally agree

that over sixty percent of the meaning of a communicated message is contained in the nonrerbal behavior that accompa-nies the oral message' Research has demonstrated that message recipients use the nonverbal component of a communication to make decisions concerning the speaker's credibility, persuasiveness and competence For purposes of chis article. three elements of nonverbal communication will be examined. kinesics, paralinguistics and proxemics

A Kinesics

Kinesics. the study of so-called "body language," invoives examining and interpreting the movement of the bod) * One of the most important and widely recognized aspects of kinesics is eye contact .A speaker either ma> look directly at the target of his or her communication ("gaze maintenance' ) or may look slightly downn ard u hile speaking ("gaze arersmn").' Several experiments hare examined the effect of this looking behavior an the message recipient's perceptions of the speaker In one study, researchers used a courtroom simulation to determine whether message recipients would use an alibi vitness's looking beha\ior [a make an inference concerning the speaker's credibility The experiment also investigated whether the message recipients had enough confidence in their judgments concerning the speaker's credibility to amlr that information to a subsequent decision E

Participants in the study rated ~iitnesses who exhibited gaze aversion as being less credible than witnesses who exhibited gaze maintenance ' Subjects aim judged the defendants for whom the gaze aversion h-itnesses testified as more likely to be guilt) than the defendants for u-hom gaze maintenance

witnesses testified a Thus, the message recipients used a wit. ness's visual behavior to make an inference concerning the witness's credibility and to make a subsequent evaluation of the defendant's guilt. This study provides empirical support for the practice of instructing one's witnesses to look at the fact-finder, rather that at counsel, when answering questions.

In addition to gaze maintenance, researchers have identified other body movements that message recipients perceive as indicative of credibility and persuasiveness A series of studies that required observers to rate the persuasiveness of a speaker revealed that more gestures, more facial activity, less self-touching, and moderate relaxation led to higher ratings of persuasiveness.s Listeners interpret the use of gestures as indicating credibility and persuasiveness, however, only If they

appear natural and are not used excessively so as to distract from the verbal content of the message.1°

5. Paralinguistics.

   Paralinguistics studies the sound of an oral communication by examining variables such as pitch, speech rate, intensity. tone, and volume of the voice Researchers have discovered that pitch and speech rate affect a listener's perception of the speaker's credibility and persuasiveness li In one study. subjects listened to recordings of male speakers answering interview questions and then rated the speakers on a variety of characteristics. The recordings had been altered so that the pitch of the speakers' voices was raised or lowered by twenty percent or left at its normal level.13 The subjects In the experiment rated the high-pitched voices as being less truthful, less persuasive, and significantly more nervous than the lower pitched Consequently, although changes in pitch can be used to avoid a monotonous presentation and to highlight a

   phrase or argument, variations in pitch must be used with discretion

   Research has also demonstrated that the rate at which one speaks affects a listener's perception of the speaker. Several experiments have studied the relationship between rate of speech and persuasion by varying the rate of speech le In one

   experiment, researchers discovered that a message delivered at a rate of 191 words.per-minute produced a greater amount of listener agreement with the speaker's position than did the same message delivered at the normal rate of 140 words.per-minute or at the slow rate of II 1 words-per-minute LE

   Moreover listeners rated the faster speaker as being more knonledgeable. more trustworthy, and more competent A second series of experiments confirmed the results of that earlier study, finding that listeners judged slow-talking speakers as being less truthful, less fluent, and less persuasive These results may reflect a belief on the part of the listeners that only a skilled speaker can rapidly present complex material in a clear manner

   Kot only are rapid speakers Judged to be more credible, corn. petent, and persuasive, but also researchers have discovered that a dramatic increase in the rate of speech does not significantly affect a listener's comprehension. In one study, re. searchers electronically increased the speed of a message to 282 words-per-minute-twice the average speech rate of 140 words-per-minute-u'ithout significant losses in comprehension Is

3. Prozemics.

   Individuals maintain different zones of space between each other depending upon their relationships, the subject matter of their conversations, and the social settings Proxemics studies the spatial relationships between a speaker and other people or objectszc Research suggests that in the courtroom, counsel can increase the credibility of their own witnesses and decrease the believability of their opponent's witnesses by applying proxemics

   According to proxemics, counsel can enhance the credibility of their own witnesses during direct examinations by standing across the courtroom from witnesses in the profile position to the jury This position increases the perceived status and importance of a witness by expanding his or her personal territory in the courtroom. Additionally, by standing in the profile positLon, the lawyer shares the fact-finder's attention with the witness.*'

   Researchers also claim there are two ways in which the tnal lawyer can use proxemics during cross-examination to decrease the credibility and persuasiveness of an opponent's wltnesses. First. counsel can stand near the witness in an open position in front of the jury. By standing near the witness, the lawyer decreases the witness's personal territory, thereby delimiting his or her importance and status. By facing the jury, the attorney commands the jury's attention, diverting attention away from the witness.22

   Second, an adverse witness's credibility can be damaged by slowly moving towards the witness during cross-examination Frequently, the witness will become preoccupied with the Ian'. yer's movement and begin to show signs of anxiety Although that anxiety is due to the presence of counsel, rather than the questions being asked, the fact-finder may perceive that the witness is nervous and stumbling in his or her testimony because he or she is being dece~tive.~~

   In summary, courtroom communications have both a verbal and a nonverbal component. Research into nonverbal communication has demonstrated that listeners use the nonverbal component of a message to draw conclusions concerning the speaker's credibility, intelligence, and persuasiveness. Consequently, nonverbal communications provide a potential means that trial and defense counsel may be able to use to increase the persuasiveness of their courtroom advo~acy.~'

   11. Verbal Cammumcation in the CourtroomIn discussing social science research into the verbal component of courtroom communications, two issues will be ex-

   amined First, what effect does a witness's style of speech have on a fact-finder's perception of the witness? Second will the lawyer's choice of words during the...