NON-VERBAL COMMUNICATION IN THE COURTROOM
It is impossible for an individual not to communicate, even if he chooses to remain silent.
It is generally agreed by experts in the field that over 60% of the impact of meaning of the communicated message resides in the non-verbal behavior accompanying the oral message. The ability to read and decode this leakage is of invaluable aid to the trial lawyer. It can be used in detecting deception during the interview or interrogation; it can be used in orchestrating your conduct and your witness’s conduct during the course of the trial; it can be used to enhance your ability to communicate to the jury or to the court.
As attorneys, we must be aware of the fact that we are communicating before we open our mouths to speak. We constantly create impressions which we may or may not want to create and which we may or may not be aware of. Physical appearance, dress, clothing color, facial expressions, gestures, tone or voice and personal distance are but some of the areas of non-verbal behavior which may modify the verbal message by reinforcing or contradicting it. When non-verbal and verbal messages conflict, our instinct invariably relies on the non-verbal; we trust our actions more than we trust our words. While the verbal language is conscious, rational and describes emotion, the non-verbal language is unconscious, subjective and expresses emotion.
Proxemics is the personal and cultural spatial needs of man, and his interaction with his environing space. Simply put, proxemics deals with body space and personal distancing. Behaviorists have shown the lower animals establish territories within which they hunt, raise their young and fight. Man learns appropriate social distances as a result of interaction with his culture. Therefore, “territoriality” will vary greatly depending upon cultural differences as well as gender. While closeness with consent may express enjoyable intimacy, closeness without consent will raise anxiety to an uncomfortable level.
Proxemics can best be utilized by understanding the three variables in body space . Body space varies with three primary factors: culture, anxiety and gender.
Culture. The social distances one assumes are culturally dictated. A child learns how close is “too close” as part of the social amenities. If he speaks too loudly in public, stares, or stands too close to an adult, he will be readily excused because of his youth; however, a high degree of anxiety attaches when an adult engages in the same form of behavior. Understanding that culturally dictated body space may vary in foreign countries from what is acceptable in America. The United States State Department prepares its diplomats for this phenomenon. A newly arrived American diplomat can experience “culture shock” when he first arrives in a South American country because of the more intimate distance maintained in these cultures. Unconsciously the American moves back to make himself feel more comfortable towards the hospitable “foreigner”, while the “foreigner” continues to move forward to establish his friendliness. Imagine the resulting “dance around the room” when the diplomat has not been adequately indoctrinated into the culture’s proxemics. A good example of non-consensual closeness can be seen by entering an elevator occupied by a single person and standing next to that person. You could count on the fingers of one hand the amount of time it would take for the original occupant to move away from you with a “look” that would kill.
Anxiety. The second factor affecting proxemics is anxiety. People who are distraught, mentally ill, or guilty have a need to maintain an extended space between themselves and others. This can best be dramatized by the picture of patients in a mental hospital tending to prefer to be by themselves, rather than a typical college campus setting of people clustered in groups.
Gender. The third factor is gender. Since heterosexual closeness is generally accepted in Western culture, most women will not react with anxiety to a male standing close to her in a normal social setting. Closeness between males, however, may be considered a threatening situation because of perceived taboos in certain parts of the country surrounding homosexuality.
Dr. Augustus F. Kinzel describes personal body space in terms of the alert zone, the buffer zone, or the attack zone. The amount of body space required in the zone varies with the setting.. Dr. Edward T. Hall describes four settings and gives distances required for each: public setting (12 feet to infinity); formal social setting (four to seven feet); informal setting (one and one-half to three feet); and intimate setting (zero to one and one-half feet).
Skilled police interrogators have utilized their knowledge of proxemics to develop sophisticated methods of interviewing witnesses or victims, and interrogating suspects. Attorneys can use the same techniques during their interviews and interrogations (cross examinations). When interviewing clients or witnesses we must be aware that, if the interview is to be successful, the interviewer must assume and be responsible for directing the interaction. The interview should not be a conversation which implies mutual and spontaneous exchanges. The interrogation on the other hand is interviewing by question and answer. The knowledge of body space during the interrogation can be of value in creating an atmosphere conducive to getting at the truth. The skilled advocate can raise the anxiety over the presence of counsel rather than as a result of the questions being put to him. However, the perception of the jury is that the witness is nervous and stumbling in his testimony because he is being deceptive. Additionally, this anxiety causes the witness’s conscious mind to dwell on the “threat” of the counsel’s closeness, and thereby calls upon the subconscious (non-programmed) mind to respond to the continuing questions being put by counsel.
A high level of anxiety makes lying increasingly difficult for the psychologically “normal” individual. The psychic energy required to maintain a lie is diverted and consumed as the attorney closes the distance between himself and the witness. An experienced police interrogator frequently finds that by the final phase of the interrogation of a prime suspect his knee is between the knees of the subject and his hand is on the subject’s shoulder. Obviously, this extreme will not be tolerated in the court. However, the skilled attorney can, by varying the distance between himself and the witness at appropriate times, imprint upon the mind of the witness an almost Pavlovian response. Since placing himself within the “buffer zone” of the witness will cause the witness to show increased anxiety, the attorney can train the witness to give favorable responses to his questions. The approach and withdrawal method subtly suggests to the witness that the best way to avoid the anxiety provoking situation from reoccurring is to give the appropriate answer to his question, for each time a favorable response is elicited, the attorney withdraws from the “buffer zone of the witness.
The application of proxemics similarly has a place in the attorney’s relationship to the jury. Employing the non-verbal concept of proxemics can enhance the attorney’s ability to generate jury participation in his client’s cause. Often the role of the trial lawyer is one of a salesman. The lawyer must be able to “sell” his client to the jury. If he can develop a “non-verbal” rapport with the jury, this rapport can often be transferred to client’s cause. This is true even where the client is an otherwise unsympathetic person.
By slightly varying the distance between yourself and the jury box you will be able to quickly “read” the jury’s reaction to what you are saying. Make a conscious effort to limit and control your movement in front of the jury box. Don’t be a pacer! Make every movement count. Coordinate each movement with the verbal message that you are giving the jury. Create the desire in the jury to alter their usual spacial concepts. Have them invite you into their “intimate setting” Have the jury lean forward to better hear what you are saying, or better observe a piece of evidence that you are displaying. Have the jury enter your most personal zone. You are now on the road to creating a “oneness” with the jury. Once this is accomplished, can Nirvana be far away?
The science of kinesics, is the study of the movement of the body. Kinesics has of late come out of the closet and become a popular cocktail party game, “body language.”
We have long been aware of the non-verbal leakage which flows from out bodies. The ancient Chinese reminded us to “watch out for the man whose stomach doesn’t move when he laughs;” and the Bible tells us, ” He winketh with his eyes, he speaketh with his feet, he teaches with his fingers” (Proverbs 6:13).
There is no end to the manner in which the trial advocate can utilize the ability to decode non-verbal leakage. However, body language is a two edged sword. While we are receiving input, we are also radiating a message to others. Since the art of advocacy is so inexorably entwined with acting, it is important for us to look to some of the rules that the actor must follow.
Acting in its purest sense is a constant exchange of radiation and reception. There are no moments on the stage when an actor can allow himself to remain passive without running the risk of weakening the audience’s attention. Further, the actor knows that his body is the natural extension of his innermost thoughts and feelings, and as such he utilizes his body to supplement and reinforce his words.
Congruence of gestures
To fully understand the non-verbal message we are receiving we must understand the congruence of gestures. Just as we have been taught to read phrases rather then words, we must examine the body language not in the context of an isolated gestures but in the context of a cluster of gestures. Understanding the congruency of gestures is a monitoring device for discovering a person’s attitude and then assigning meaning to his actions. The gesture-endorsed spoken word is the total package.
Often in our own practice we offer the observer an incongruent mixture of words and actions. For example, if in closing argument we are attempting to express sincere understanding and empathy for our opponent’s position, we often couple it with an incongruent finger point or closed hand. A perfect opportunity exists for examining these incongruence’s during the current election campaign. How often do we see the candidate talking of warmth, humanity and sincerity while often using short, violent karate chops at the lectern?
Decoding the message
Dr. Albert Mehrabian, a research psychologist, divides the total impact of the communicated message into 7% verbal and 93% non-verbal. On further analysis he breaks down the non-verbal message into the following categories: 38% vocal and 55% facial. Facial expressions and their non-verbal implications might best be understood in context of our use of our built-in polygraph instincts. Even in our non-professional lives, we constantly examine another person’s gestures or ” looks” in an effort to find out if the person is being truthful with us. While “poker face” has come to mean a blank, expressionless face, professional gamblers, look not to the face but to their opponents’ eyes. Studies at the University of Chicago several years ago found that the change in the size of the pupil of the eye is an unequivocal measure of interest and attitude. The pupil is controlled by the autonomic nervous systems. Pupil dilation reflects a positive response, and pupil constriction a negative response.
Dr. Paul Ekman made an exhaustive study of facial expressions and deception. He pointed out that as a tip-off to lying, the person being interviewed engaged in less of the casual gesticulation that normally accompanies and illustrates speech. The motions that the lying subject utilized tended to be nervous, picky ones: lip licking, eye rubbing and scratching.
Dr. Ekman, working under laboratory conditions, had available to him television and other video equipment which allowed him to slow down and isolate the facial expression of the subject during the interviews. Dr. Ekman, along with Drs. Freisen and Tompkins, developed a catalog of facial expressions designated the Facial Effect Scoring Techniques (FAST ). FAST uses photos of facial expressions rather than verbal descriptions, much like a police artist uses a composite kit to develop a sketch of a suspect. Dr. Ekman’s work has proved that “we all have the perceptual apparatus to decode faces in one-hundredth of a second.” Few of us, however, have permitted ourselves to develop this perceptual apparatus, perhaps restrained by the old axiom, “You cannot tell a book by its cover.”
While it is impossible in this space to catalog every movement of the body and its significance to the trial advocate, we should examine some basic congruent clusters. Once you have the clusters fixed in your mind an easy exercise to practice is to turn the sound off on television and simply read the body language. You can check your progress by occasionally restoring the sound and monitoring the verbal action.
In determining whether we are properly understanding the non-verbal answers of potential jurors, or to read their non-verbal reaction to our agreement, the trial advocate should analyze certain congruent clusters suggesting feelings of openness, defensiveness, pensiveness, and suspicion. Tests have been conducted which show that during negotiations there is a greater degree of agreement among men who keep their jackets unbuttoned, or off, than there is among men who jackets remain buttoned. Similarly, an indication that agreement is near occurs when your adversary uncrosses his arms and couples this with the unbuttoning of his jacket. One gesture which is readily associated with openness is the open hands. Open hands with the palms upward in response to a question is a positive indication of sincerity.
The ideal juror, projecting openness, will be seated forward in his chair, legs uncrossed, jacket open, and hands resting on the rail of the jury box.
The converse of openness is defensiveness, and the most dominant gesture of defensiveness is the position of the arms crossed at the chest or waist. Nierenberg and Calero superbly illustrate this position by reminding us of the stance taken by the team manager in a baseball game during an argument with an umpire. The umpire who wears a chest protector does not usually fold his arms as does the manager. Once we detect this position from the juror we must immediately stop and change our tack. The juror is signaling us that he has become defensive. We should now try to draw out his feelings by relating to him, rather than continue on the course which made him defensive in the first place. We must work to “turn him on” rather than continue to “turn him off.”
Another high water mark suggestive of confrontation and defensiveness is crossing the legs. Jurors who cross their legs during the examination, or argument, give you the most competition and therefore need the greatest attention. Crossed legs and leaning away is extremely suggestive of a “no-sale” position. Coupled with crossed arms you may as well forget about this person as a favorable juror.
Thoughtfulness and pensiveness are dramatically re-created for us in Rodin’s “The Thinker.” The common hand-to-cheek attitude of pensiveness can be amplified by a slight tilting of the head. Other clusters of pensiveness include stroking the chin or beard (a philosophical signal) and squinting the eyes as if the listener is trying to see the solution to the problem off in the distance.
Of special interest is the congruent use of eyeglasses with the above gestures. Slowly taking off the eyeglasses is a signal that the listener is asking for time the think. When the listener removes his eyeglasses and places the ear piece in his mouth, he is stating that he cannot and does not want to respond: ” I can’t talk while something is in my mouth.”
Of interest to the trial advocate is the ability to perceive that the juror (or witness) is being secretive or suspicious. If a person tends not to look at your at all he is likely to be concealing something. All of the gestures which convey a meaning of uncertainty, concealment, suspicion and rejection have a common negative element. In a normal conversational setting these signals can be dramatically pronounced; a shifting of the feet or the entire body in the direction of the exit, a sideways glance.
Among Americans , Professor Ray Birdwhiteshell points out, the “nose-rub” is as much a sign of rejection as the word “No!” Variations of this movement would be placing the index finger beside the ear or rubbing the eye. Similarly, if the person responding to our questions puts his hand or a finger in front of his mouth when answering, he is holding back, concealing, telling you only half the story. It appears that the person is trying to stop the flow of words.
Sending the message
If we try to communicate exclusively by our speech content or our verbal delivery, we will not be able to secure and maintain jury interest and attention. Gestures must be used to supplement our verbal communication. But gestures should not be artificial or unnatural; and they should not be used excessively or randomly lest the jury should be distracted from the verbal content of the message.
Two of the most commonly used gestures to emphasize a point are the outstretched arm with clenched fist, and the epee-like thrusting of the index finger. Those of us who wear glasses also tend to use eyeglasses as an extension of our hand. Although we use these gestures to impress upon the jury our sincerity and drive for the position taken by our client, it may have exactly the opposite result. Rather than having the meaning of “look here,” it tends to say, “look there!”
Most people dislike being the object of a pointed finger. The gesture carries with it arrogance and arouses antagonism in others, clearly not the effect we are looking for. The gesture has to be softened so that it does not appear that you are singling out any one member of the jury. A sweeping lateral motion of the arm with palms upward has the effect we are looking for.
The accomplished speaker has his gestures refined and calculated for a specific purpose. This will only come from practice and self-discipline. It is critical, however, that the gesture become automatic and natural. Obviously, of basic importance in delivering your message is your conviction in the righteousness of your client’s cause; for despite your vocal eloquence, your body language can betray you. In the words of Louis Armstrong, “You blows what you is!”
The trained voice moves through an unbelievable range of change- change is pitch, loudness, timbre, and rate. The study of vocal chronemics focuses on the changes that occur in the rate of speech. Studies have been conducted which have compared the rate of speech with the listener’s acceptance of the speaker, with the speaker’s ability to persuade, with the speaker’s apparent intelligence and objectivity. The results of these experiments are by no means conclusive, and a caveat is in order. I have been thus far unable to discover any experiments which have taken into account regional customs with regard to the rate of speech. Before you begin to alter your rate of speech in jury presentations, give special consideration to the question of regionalization of speech patterns.
With regard to one-way communication, as in the address to the jury, the faster talker is generally more persuasive and more favorably regarded by his listener. In addition, the listener tends to learn more from the fast talker. It is apparent, therefore, the vocal rate is of significance to the advocate in his preparation of an opening or closing statement to the jury.
Further experimentation produced revealing statistics. After listening to a specially prepared tape, listeners were asked to indicate the degree of their agreement with the speaker on a scale of 1-10. Average scores of 4.62 were recorded for the slow speaker; 5.95 for the normal speaker; 6.10 for the fast speaker. Listeners further rated the speakers on intelligence (5.70,6.45,6.83) and objectively (3.83,3.93,5.76). Consistently, the faster speaker excelled. Concerned that the statistics would vary significantly if it appeared that the speaker had a vested interest in what he was talking about, researchers altered the experiment to include a speaker with such an interest. There too, the faster speaker still appeared to outdistance the others in the areas of trust, knowledge of subject, and persuasiveness.
Realistically, the general rate of speech is dependent on the temperament, personality, communicative habits of the speaker and regional custom, as well as the contents of his message. Conversation, since it is casual in nature, tends to be more rapid than formal public speaking. It would seem natural, therefore, that if we intend our opening/summation to take the form of a friendly, informal chart, we would make a conscious effort to increase the rate of our speech thereby reinforcing in the minds of the jurors of the informality of the conversation. Conversely, if we have to adopt a pedantic, professional approach, we have to slow down the rate of our speech. These two styles are not mutually exclusive and can be easily molded into a successful presentation. A uniform rate of speed would only result in a monotonous, unnatural and otherwise unbearable presentation. We must therefore vary the rate of speech to convey feeling and thought, as well as to evoke emotion from the jury.
Expert in the dynamics of speech have rated the speeds of speech as follows: “fast’ talkers, approximately 180 words per minute; “average” talkers, approximately 150 words per minute; “slow” talkers approximately 120 words per minute.
Of utmost importance is the jury’s comprehension rate. Most of us are familiar with the old axiom, “the mind will absorb only what the posterior can endure.” In 1957, researchers attempted to determine what effect, if any, there would be on a listener’s comprehension with a significant increase in the rate of speech. Using the technique of electronic time compression, the researchers recorded a technical message on meteorology. For the purpose of this experiment a “normal” rate of speech was set at 141 words per minute. Comprehension was set at 100% for that rate of speech. Increasing the rate to 282 words per minute (twice the normal rate), comprehension among listeners with no prior experience in meteorology was 90%. Above 282 words per minute, comprehension was seriously affected.
Producers of television commercials were quick to pick up on the significance of minimal loss in comprehension with a doubling of the speed (TV time runs in excess of $3,000.00 per second), and the concept should not be lost to the trial advocate. There seems to be a basis for the conclusion that the listener’s perception of the speaker, his veracity, objectivity, and intelligence shows a measurable increase as the rate of speed increases, without a significant loss in listener comprehension.
As professional public speakers, trial lawyers must be aware of the concept of apparent rate of speech. Since jurors do not sit with stop watches to check the rate of our speech, their judgement in this regard is purely subjective. The subjectivity is influenced by such factors as clarity of speech, pauses, prolongation of vowel sounds, and hesitations.
The study of paralinguistics in this series is somewhat an anomaly, for it deals with verbal communication. However, it focuses on the sound, rather than the content, of the message. Classically, paralinguistics combines the studies of pitch, intensity, tone, timbre , tempo, stress, and volume of the voice. The artful use of these elements of linguistical expertise can turn an otherwise uninspired summation or appellate argument into a masterpiece. An analysis of the great speakers throughout history illustrates that each of them were masters in heightening listener interest by skillful modulation and variation of the paralinguistical elements of their presentation.
Everyday experiences point to a connection between paralinguistics and occupational roles. As soon as people step into their professional capacities they assume stereotyped “tones of voice.” Such role playing is obvious to anyone who carefully listens to a minister, lawyer, disk jockey, sportscaster, undertaker, or the news anchor person.
It is this stereotyping that the articulate and interesting advocate must learn to overcome. Assuming that the objective of the summation is to fix in the jury’s mind the advocate’s theory of the case as well as the logic, credibility, and righteousness of the theory, it then becomes essential for the advocate to concentrate on preventing the jury from mentally blocking out what he or she has to say. If the advocate assumes a “lawyer’s tone of voice,” he is then apt to encourage the jury to block what he is saying
The approach, therefore, is to prevent the formation in the minds of the jurors of stereotypes with regard to their attitudes of lawyers, or particular types of clients. If we are to succeed in the difficult art of persuasion, we must accentuate the individualism of our presentation as much as we accentuate the individuality of our client or our cause.
Variety and animation through the effective use of paralinguistics gives the human voice its needed flexibility. Flexibility of voice increases listener interest, reveals the speaker’s personality, helps to clarify the speaker’s thought, and most importantly it conveys emotional values.
An effective speaker must have flexibility of pitch. Vocal pitch refers to the location of the sound on a musical scale. Variation is accomplished by movement up or down this scale. This can be accomplished by a slide from one pitch to another, or a step between one pitch and another.
Generally, pitch should be appropriate to the age and sex of the speaker, and any variation from the norm will generally startle the listener and may distract the listener and otherwise hamper effective communication. However, a skilled speaker can utilize a dramatic change in pitch to highlight a phrase or a thought. For example, if you recalling the testimony of a witness of the opposite sex, it may be effective to alter your pitch to fit the sex of the person whose testimony you are seeking to have the jury recall. This can be especially dramatic if your are utilizing this technique to point out the inconsistency of a portion of the testimony, or to highlight the implausibility or incredibility of the testimony.
Pitch is also means of expressing the emotional state of the speaker. Anger, excitement, gaiety usually cause the speaker’s voice to rise in pitch. Grief reverence and solemnity generally have the opposite effect. The “normal” pitch level for any speaker is determined by the size and structure of the speech mechanism. The natural soprano voice cannot become a bass voice, although both can extend the limits of their upper and lower registers. It is best for the speaker to find the pitch level at which his voice is produced most easily and resonated most effectively. By keying your general level to this placement, you will be able to achieve your maximum carrying power with a minimum of effort, and be in a position to raise or lower pitch with maximum ease.
The effective advocate has flexibility of vocal force … loudness. He must be able to adjust the force of his voice to fit the acoustical condition as well as the subject matter. The continued use of any level of force will grow monotonous and will eventually work to eliminate variation of force as an effective method for achieving emphasis.
By dramatically lowering his voice, the trial lawyer can work to create a warm, friendly, almost private-club-like atmosphere. An effective example is seen by combining the knowledge of proxemics and kinesics with this paralinguistic technique. At the appropriate point in your summation, while pointedly turning your back to your adversary, slowly close the distance between yourself and the jury and with arms outstretched, palms facing the jury, “enveloping” the jury. Lower your voice so that only the jurors and the court reporter can clearly hear you. The effect will be one of a group of close personal friends discussing the fate of a member of their group. The technique will usually result in the quiet, solemnity of the occasion being broken by your adversary’s entreaties to “Speak up, I can’t hear.” The jury’s reaction will be one of annoyance at this interloper’s intrusion into their discussion.
In determining when to increase the force of the voice, the advocate must remember that variation of force is essential for proper emphasis. Timing the moments of loudness should therefore coincide with making important ideas stand out.
Flexibility in the rate of the speaker’s voice affects the speaker’s intelligibility. In general, the vocal rate should fir the situation, the material being presented, the acoustics, the mood of the occasion, the reaction of the listeners, and the personality of the speaker.
In addition to force, an equally effective technique for emphasis is the pause. An important fact or issue can be featured by a marked delay before or after it is uttered. The pause should be a purposeful interval of silence giving the jury time to digest the concept it has just heard. The pause serves to punctuate what the speaker has said, as periods and commas set off words into thought groups in written communication. Pauses cannot be too long or too frequent or else they may suggest to the jury that there has been a blank space, or a lapse in your thinking. Such a distraction is as annoying as the vocalized “uh” or “er” , and must be avoided.
The effective speaker must be inventive with his use of language. Most advertising or political slogans achieve their effect because they employ linguistic virtuosity. Caesar’s victory message -“veni, vidi, vici”; Churchill’s inspirational, “blood, toil, tears, and sweat”; the 1952 campaign slogan, “I like Ike”. These are near-perfect expressions of the symmetrical use of sound in language.
Robert Frost, like most poets, maintains that certain sequences of sound have a built-in emotional impact. “To me a sentence is not interesting merely in conveying a meaning of words; it must do something more; it must convey a meaning by sound.” In dealing with oral communication, the advocate must take guidance from the poets and realize that how we verbalize the message is as important as what we say in the message.
“Although an individual can stop talking, he cannot stop communicating…. he must say either the right thing or the wrong thing… he cannot say nothing.” Non-verbal communication has developed and matured side by side with the evolution of speech. Non-verbal communication enriches our delivery by adding another dimension to speech. Without it, speech is simply talk. With it, speech becomes drama. Shakespeare best described it: “There was speech in their dumbness, language in their very gesture.”