Assessment in Forensic Psych
Believability of Expert and Lay Witnesses:
Implications for Trial Consultation Marcus T. Boccaccini and Stanley L. Brodsky The University of Alabama Attorneys are often skeptical, with good reason, about the extent to which research findings and psychological principles may apply to the members of their jury pool. It is important for attorneys as well as psychologists who provide consultation services to have access to base-rate opinions about the consultation issues. This article reports the results of a statewide telephone survey of 488 adult residents who answered questions about the believability of expert witnesses and criminal defendants who testify.
The survey questions were designed to provide “local” base-rate data about issues that arise in 3 areas of consultation work with attorneys: public perceptions of witness preparation with criminal defendants, expectations of criminal defendant demeanor, and judgments with respect to expert-witness character- istics that might be associated with being a “hired gun.” Implications for psychologists who work as trial consultants and expert witnesses are discussed. Psychologists are sometimes asked by attorneys to provide assistance in making trial strategy decisions for cases that are coming to trial. Trial strategy issues of interest to attorneys can be case specific (e.g., “What type of mental health expert should I retain for this type of case?”) or applicable to many cases (e.g., “What should I do to help my witnesses prepare to testify?”).
Psychologists who work as trial consultants can draw upon various sources of information when assisting attorneys, including clinical experience, general psychological principles, and existing court- room research (Myers & Arena, 2001). Although these sources often supply relevant information for providing consultation ser- vices, additional information may be valuable. There are reasons to be skeptical about the extent to which research findings from psychological studies generalize to specific geographical locations.
Many attorneys and psychologists alike believe that the people in their jury pool are different than people who participate in research studies. In these instances, psychologists can use survey method- ology to obtain “local” opinions about the consultation issues.
This article reports the results of a statewide phone survey of individuals who answered questions about the believability of expert witnesses and criminal defendants who testify. The survey questions were designed to address issues that arise in psycholog-ical consultation with attorneys. The survey results are reported here to provide an example of how survey data can be used to inform trial consultation work and to inform psychologists who testify about expert-witness characteristics that may be associated with lay perceptions of being a “hired gun.” The first issue addressed in the survey was public perceptions of witness preparation with criminal defendants. Criminal defendants who are going to testify often meet with an attorney or trial consultant before trial to review and discuss the substance and delivery of the defendant’s anticipated testimony (Boccaccini, 2002). The extent of witness preparation can range from a cursory review of basic “do’s and don’ts” on the witness stand (e.g., do not argue with opposing attorneys, do speak clearly) to more in-depth training that includes simulated trial questioning by attorneys and feedback regarding the use of effective communication skills (Boccaccini, 2002). Irrespective of the specific training techniques that are used, the purpose of witness preparation is to help wit- nesses communicate honestly and effectively so that they will be persuasive in the courtroom. Although witness preparation is a routine practice, criminal defense attorneys are often concerned about how jurors will react if they find that a defendant has been prepared to testify in court. Two survey questions addressed public perceptions about the appropriateness of witness preparation with criminal defendants.
One goal of witness preparation is to reduce anxiety and stress (Boccaccini, 2002; Brodsky, 1991, 1999; Brodsky, Caputo, & Domino, in press; Myers & Arena, 2001). Because people often interpret nonverbal behaviors associated with nervousness (e.g., little eye contact, fidgeting) as signs of deception (Ekman, 1989; Zuckerman, Koestner, & Driver, 1981), one of the aims of witness preparation with criminal defendants is to offer specific techniques to help reduce their anxiety about testifying (Boccaccini, 2002).
Indeed, several mock jury studies have found that witnesses who show few signs of nervousness are perceived as being more believable than witnesses who show noticeable signs of nervous- ness (see, e.g., Bothwell & Jalil, 1992; Pryor & Buchanan, 1984).
Nevertheless, many attorneys believe that criminal defendants should show some “natural” signs of nervousness when testifying.
MARCUS T. B OCCACCINI received his MA in clinical psychology from the University of Alabama in 1998. He is currently a doctoral candidate in clinical psychology/psychology-law at the University of Alabama.
S TANLEY L. B RODSKY received his PhD in clinical psychology in 1964 from the University of Florida. He is a professor of psychology and the coor- dinator of the psychology-law concentration at the University of Alabama.
T HE DATA REPORTED IN THIS ARTICLE were collected by the Capstone Poll of the Institute for Social Science Research at the University of Alabama. We are indebted to the Institute for its assistance. All opinions in this article are our own and are not intended to represent the conclusions or opinions of the Institute. We also thank Michelle Barnett, David Cannon, Heath Patter- son, and Nancy Ryba for their assistance in drafting items for this study.
C ORRESPONDENCE CONCERNING THIS ARTICLE should be addressed to Stanley L. Brodsky, Department of Psychology, Box 870348, University of Ala- bama, Tuscaloosa, Alabama 35487. E-mail: [email protected] Professional Psychology: Research and PracticeCopyright 2002 by the American Psychological Association, Inc.
2002, Vol. 33, No. 4, 384 –3880735-7028/02/$5.00 DOI: 10.1037//0735-7028.33.4.384 384 Three survey questions asked respondents to report their expecta- tions about defendant demeanor on the witness stand.
The survey also posed four questions about the believability of expert witnesses. When expert witnesses prepare to testify in court, they typically operate from a series of largely untested and implicit assumptions about their believability as witnesses (Brodsky, 1989). These assumptions include ares ipsa loquitorheuristic that the content and delivery of testimony are the only essential ingre- dients (Brodsky, 1999). The nature of the receiving audience is less attended to, and theres ipsa loquitorheuristic tends to override consideration of preexisting belief structures about expert witnesses in typical jurors. The expert-witness believability items included in the survey were intended to clarify potential jurors’ preexisting beliefs about several expert-witness characteristics. For instance, attorneys often believe that jurors prefer testimony from local experts as opposed to out-of-state experts. These attorneys believe that out-of-state experts may be viewed unfavorably by jurors because they are seen as“bought”experts. Although mock jury research does indeed suggest that highly paid experts with strong credentials are sometimes seen as hired guns (Cooper &Neuhaus, 2000), studies examining these issues have not compared jurors’perceptions of local and out-of-state experts. Four survey items were created to examine respondents’beliefs about this and other expert-witness characteristics that may be associated with being a hired gun (work experience, testifying experience, fee for testifying). Survey on Witness Believability As part of a statewide random-sample telephone survey, 488 adult residents in Alabama (mean age 46.08,SD 16.79) answered nine questions about courtroom issues. More than half of the participants were women (n 316, 65%), and most identified themselves as being either Caucasian (n 386, 79%) or African American (n 85, 17%).
The complete survey contained 206 questions, 9 of which as- sessed witness believability issues. These 9 questions are listed in Tables 1 and 2. The rationale for constructing the items was to draw on courtroom and trial issues relevant to citizens’judgments about witnesses. These items were included in the Spring 2001 Table 1 Responses to Witness Preparation and Defendant Demeanor Questions Questionn a % If you learned that a defense lawyer had met with and helped a defendant give more understandable testimony, would your opinion of the defendant be:
Much better41 8 A little better 110 22 Unchanged221 45 A little worse 66 13 Much worse26 5 Don’t know24 5 If you learned that a paid psychologist had met with and helped a defendant give more understandable testimony, would your opinion of the defendant be:
Much better27 5 A little better 115 24 Unchanged185 38 A little worse 105 21 Much worse36 7 Don’t know20 4 When an innocent defendant testifies, is he or she likely to be:
Extremely nervous 117 24 Somewhat nervous 162 33 A little nervous 140 29 Not at all nervous 23 5 Don’t know46 9 If you were on a jury, would you be most likely to believe a defendant on the witness stand who was:
Extremely nervous 40 9 Somewhat nervous 154 31 A little nervous 153 31 Not at all nervous 68 14 Don’t know73 15 If you were on a jury, would you be most likely to believe a defendant on the witness stand who was looking:
Mostly at you and not looking at the attorney 32 7 At you some of the time and at attorney some of the time 200 41 At you occasionally and mostly at the attorney 117 24 Not at all at you and always at the attorney 99 20 Don’t know40 8 aBased on 488 responses. 385 WITNESS BELIEVABILITY AlabamaStatewideOmnibusSurvey,a random-sample telephone survey conducted by the Capstone Poll of the Institute for Social Science Research at the University of Alabama. The Alabama Statewide Omnibus Survey is conducted annually and assesses a wide range of political and social issues in Alabama. The survey includes items submitted by state agencies, private organizations, and University of Alabama faculty members. The content of the survey varies from year to year depending on the interests of the parties who submit items for the survey. Because the 9 witness believability survey items were designed to assess general attitudes about witness believability issues, we were not concerned about including the items in such a broad survey. However, when con- ducting a telephone survey for a specific case, we recommend restricting the survey items to issues that are relevant to the case (see, e.g., Brodsky, 2000).
The current survey was conducted by trained interviewers at the Capstone Poll, a well-known and experienced regional survey organization. A random-digit-dialing (RDD) method was used in which computer-generated random numbers were selected and dialed by a computer. Although this method generates a significant number of nonworking numbers, it ensures that every telephone number in the state has an equal chance of being dialed. A drawback of RDD surveys is that telephone interviewers know nothing about the numbers being dialed, which can make survey calls sound like unwanted telemarketing calls (Brick, Collins, & Chandler, 1997). Of the 1,343 working residential numbers that were dialed and answered, 855 (63.7%) refused to participate. Theresponse rate of 36.3% for the current study calls for a comment; RDD survey response rates vary widely according to survey site, topic, and length. Although some RDD surveys achieve response rates as high as 70%, response rates below 50% occur with some frequency (Brick et al., 1997).
Table 1 presents participants’responses to the witness prepara- tion and defendant demeanor questions. Most participants did not view witness preparation with criminal defendants negatively.
Indeed, 75% reported that their opinion of a criminal defendant would be better or unchanged if they found out that an attorney had met with and helped the defendant to give more understandable testimony; 67% reported that their opinion of the defendant would be better or unchanged if the defendant had met with a psychol- ogist. Most participants also reported that they expected defen- dants to be at least“a little”nervous when testifying (86%), and many reported that they would be most likely to believe defendants who were either“somewhat”or“a little”nervous (62%). Partici- pants also indicated that they would be most likely to believe defendants who made eye contact with both jurors and attorneys while testifying (65%).
Table 2 describes participants’responses to the expert-witness questions. Although attorneys often believe that jurors prefer ex- perts from their home community, our findings provide only moderate support for this belief. Only 37% of the survey respon- dents reported that they would be most likely to believe an expert witness from their home community (37%), whereas a substantial Table 2 Responses to Expert-Witness Questions Questionn a % In criminal and civil trials, experts are often called to testify. Would you be most likely to believe experts from:
Your home community 181 37 A neighboring community 33 7 Elsewhere in the state 60 12 Out of state 112 23 Don’t know 102 21 Experts sometimes give differing opinions. Would you be most likely to believe a doctor who:
Mostly sees patients 401 82 Mostly teaches 33 7 Mostly testifies in trials 23 5 Mostly writes books 5 1 Don’t know 26 5 In criminal trials, would you be most likely to believe experts who had testified previously:
For both the prosecution and the defense 277 57 Only for the prosecution 12 2 Only for the defense 9 2 Never149 30 Don’t know 41 8 Experts sometimes get paid for testifying. Would you be most likely to believe the expert who was paid:
$16,00017 3 $6,00016 3 $60040 8 Nothing373 76 Don’t know 42 9 aBased on 488 responses. 386 BOCCACCINI AND BRODSKY minorityexpresseda preference for out-of-state expert witnesses (23%).
Respondents showed great consistency in their responses to the other expert-witness believability questions. In general, the re- sponses suggested that respondents were sensitive to expert- witness characteristics that might be associated with being a hired gun. For instance, most respondents reported that they would most likely believe an expert opinion from a doctor who sees patients (82%), whereas few reported that they would most likely believe an expert who spent the majority of his or her time engaging in academic activities (e.g., teaching [7%], writing books [1%], or testifying in court [5%]). Likewise, most respondents reported that they would most likely believe experts who received no payment for their testimony (76%), a finding that favors state-employed or agency experts who receive no private payment beyond salaries already in place. Finally, respondents expressed a preference for testimony from experts who never testified (30%) or from those who had previously testified for both the prosecution and the defense (57%). Implications for Practice Participants’responses to the survey questions provide baseline information about the beliefs and expectations of potential jurors.
Although case-related decisions should not be made on the basis of these data alone, the findings have several implications for trial preparation practices in Alabama and in other states as well.
1. Witness preparation with criminal defendants should not be avoided because of fears that it will be viewed negatively by all jurors. In contrast to attorneys’fears, most participants reported that their opinions would be unchanged if they found out that a defense lawyer or a psychologist helped a criminal defendant give more understandable testimony. Participants did, however, look somewhat more favorably upon witness preparation by a defense lawyer than by a psychologist.
2. Witness preparation may be harmful if it is used to remove all manifestations of a criminal defendant’s genuine nervousness.
Most participants reported that they expected criminal defendants to be at least“a little”nervous when testifying, and many reported that they would most likely believe a criminal defendant who was either“somewhat”or“extremely”nervous. The likely explanation for these findings is that the absence of visible anxiety might be interpreted as being callous, glib, or slick. Nevertheless, future research is needed to clarify the relation between defendant ner- vousness and believability. Indeed, our findings contradict existing mock jury research suggesting that jurors are more likely to believe criminal defendants who show few or no signs of nervous- ness (Pryor & Buchanan, 1984). It may be that jurors say that they expect criminal defendants to be nervous but then react negatively to behavioral manifestations of nervousness. It is also possible that the relation between criminal defendant nervousness and believ- ability is curvilinear, with a low but perceivable level of nervous- ness being optimal.
3. One goal of witness preparation training should be to ensure that criminal defendants make eye contact with both jurors and attorneys when testifying. It has been our experience that unpre- pared witnesses tend to look only at attorneys when testifying and that many feel uncomfortable looking at the jury. The present findings suggest that criminal defendants should make at leastoccasional eye contact with the jury but that continuous eye contact may not be necessary.
4. Attorneys should try to find local experts with practical experience before they retain out-of-state or purely“academic” experts. Responses to expert-witness questions indicated that re- spondents generally preferred experts from their own community who are not paid for their testimony. This category includes employees of public institutions who are paid in general for their work rather than for specific cases. Many participants also reported that they would most likely believe experts who see patients as opposed to experts who engage in more academic activities.
Although the current survey was conducted to provide data for consultation work, the finding that nearly all survey participants reported that they would most likely believe a doctor who sees patients (as opposed to doctors who mostly testify, teach, or write books) has implications for all psychologists who testify. The present finding that treating doctors are seen as more believable than those who engage in academic activities is consistent with a growing line of research showing that mock jurors (Krauss & Sales, 2001), as well as judges and attorneys (Redding, Floyd, & Hawk, 2001), prefer clinical-opinion expert testimony to research- based or actuarial testimony. Moreover, recent research has also shown that mock jurors are sometimes leery of highly paid aca- demic experts (see Cooper & Neuhaus, 2000). Although more research in this area is needed, current knowledge is converging to suggest that jurors prefer mental health testimony from more clinically oriented experts. It is likely that this preference for treating clinicians is especially true when the case involves a clinical issue (e.g., diagnosis, amenability to treatment).
In sum, four essential findings emerged from the current study:
witness preparation with criminal defendants does not have to be concealed, mild nervousness by criminal defendants on the witness stand may enhance believability, criminal defendants should make eye contact with attorneys and jurors when testifying, and practical experience of expert witnesses is highly valued. These findings have been useful in our work with attorneys, and we encourage practitioners to conduct similar local surveys to inform their trial consultation work. References Boccaccini, M. T. (2002). What do we really know about witness prepa- ration?Behavioral Sciences and the Law, 20,161–189.
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