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Reading Non-verbal cues- Essential Skill of Courtroom Proceedings

Abstract

This research explores the implications of incorrect assumptions and inaccurate assumptions about nonverbal behaviour in courtrooms. We explore how to differentiate factual assumptions from scientific knowledge regarding nonverbal communication, include a summary of core principles in nonverbal communication research (i.e., expressions, facial movements, and eye gaze), describe the impact of culture when understanding nonverbal communication, clarify how nonverbal behaviours may be used to detect deceit, and propose an engaging method. The consequences of a more complex view of nonverbal behaviour are also explored. This paper distinguishes and characterises body language and attempts to demonstrate its position and purpose in criminal trials in the courtroom. The purpose of this research is to demonstrate an overview of the normal and deliberate behaviours of individuals in court proceedings in light of studies in connection with several other factors.

Key Words: Nonverbal communication Courtroom, Deception, Body Language, Trials

INTRODUCTION

Even if a person wishes to stay silent, it is difficult for him not to interact. Experts in the profession typically accept that nonverbal action following the oral message accounts for more than 60% of the effect of the conveyed message’s context. The learning to comprehend and decipher this leakage is very useful to the trial counsel. It can be used to spot lying during an interview or interrogation; it can be used to orchestrate your and the witnesses’ behaviour during the trial; and it can be used to improve your ability to negotiate with the jury or the judge.

As members of the legal profession, we must be mindful that we start interacting before opening our mouths to talk. “We actively construct impressions that we may or may not wish to create and are unaware of. Physical presence, dress, clothing colour, facial expressions, movements, sound of speech, and personal distance are only a few examples of nonverbal actions that can reinforce or refute a verbal message. When nonverbal and verbal signals contradict each other, our reaction still favours the nonverbal; we rely more on our actions than we trust our words.”

Nonverbal contact has gained increasing media coverage in recent years. So-called behavioural analysts’ analyses abound in the printed press and on tv. Pseudoscientific concepts, or notions that “have the nature of science but ignore its reality,” are transmitted to mass crowds without regard for the consequences of their use. Using pseudoscientific notions, as well as mistaken assumptions and misleading stereotypes of nonverbal contact, in personal or professional environments, may have serious implications. One of the most widespread misconceptions about deception is the assumption that gaze aversion is a credible predictor of deception when, in practise, it has been shown that it is not a credible predictor of deception. “Communicative partners either falsely infer that their counterpart is deceptive when, in reality, he or she is truthful, or that their counterpart is telling the truth when, in fact, he or she is dishonest, as a result of the myth.”

Since the consequences of such a fallacious conclusion can be severe in any context, the and similar conclusion drawn by a trial judge may be tragic, especially considering the analysis of the witnesses’ credibility, given that “credibility is an issue that pervades most trials, which at its broadest can amount to a decision on guilt or innocence,” and may also amount to one’s unlawful imprisonment. Unfortunately, several legal experts, particularly trial judges, make erroneous conclusions regarding nonverbal communication and deception identification. Worse, some have even attended nonverbal communication conferences and lectures where the concepts discussed have little more theoretical validity than the concepts used during the Middle Ages’ trials by ordeal.
This paper seeks to provide judiciary practitioners with a review of the research literature on nonverbal communication, which we believe is essential for gaining insight into the effects of non-verbal communication in courtrooms and promoting the advancement and application of practises that are based on evidences.

More precisely, after discussing existing legal demeanour questions, we will explore how to distinguish illegitimate assertions from empirical evidence of nonverbal contact. Following that, we will set the foundations for this paper by incorporating core principles in the analysis of nonverbal communication (i.e., expressions, facial features, and gazing actions) as well as the influence of culture. Finally, we’ll look at the importance of non-verbal contact in fraud identification and face-to-face communications. This paper will be completed with a review of the effects of verbal contact.

Literature Review:

i) “The importance of the body language and the non-verbal signals in the courtroom in the criminal proceedings. The outline of the problem”: Written by “Agnieszka Gurbiel”, this research paper distinguishes and characterises body language and attempts to demonstrate its position and purpose in criminal trials in the courtroom.
ii) “Nonverbal communication in courtrooms: Scientific assessments or modern trials by ordeal?”: Written by “Vincent Denault & Norah Dunbar”, this paper examines the stereotypes about the nonverbal communication in the courtroom.
iii) “Justice and Nonverbal Communication in a Post-pandemic World: An Evidence-Based Commentary and Cautionary Statement for Lawyers and Judges”: Written by “Vincent Denault and Miles L. Patterson”, This paper provides an evidence-based analysis and advisory to lawyers and judges who might be tempted to discontinue in-person proceedings due to factors such as expense and time savings.
iv) “The Importance of Nonverbal Communication in the Courtroom”: Written by “Martin S. Remland”, this paper offers a review on the empirical research that has yet been done in the field of nonverbal communication.
v)“Subconscious Advocacy — PART 1: NONVERBAL COMMUNICATION IN THE COURTROOM”: Written by “Willem Gravett”, this research paper focuses on an aspect of persuasive communication that most trial lawyers ignore or neglect — nonverbal communication.
vi) “Courtroom Communication Strategies”: This book is written by “Lorren J. Smith and Loretta A. Malandro”. It focuses on explaining specific persuasive techniques to improve courtroom communication.
vii) “Communication in the legal process”: This book is written by “R.J. Malton”. It reflects on communication issues and skills that prosecutors, judges, litigants, and jurors encounter in criminal and civil court.
viii) “The effects of cross-examination tactics on simulated jury impressions”: This research paper was authored by “Gibbs, Margaret” and other legal researchers. The negative effects of leading questions by attorneys on eyewitness testimony have been demonstrated in research, and it has been discovered that adversary lawyers received less credible testimony from eyewitnesses.
ix) “The effect of physical appearance on the judgment of guilt”: This research was conducted by “M.G. Efran” on the differences in the courtroom proceedings between attractive and unattractive defendants.
x) “The Psychology of Courtroom Persuasion”: Written by “J.A. Call” , it focuses on some of the most recent advances in the psychology of persuasion and proposes a range of methods for use by lawyers in the courtroom.
xi) “Jury Selection, Body Language and the Visual Trial”: This research paper is written by “J Rasicot”. The Rasicot model of visual juror evaluation is presented in order to assist lawyers in adapting their courtroom style and technique to the mentalities of the jury or in choosing appropriate jurors.

Research Methodology

The substantive model of qualitative research is presented to address the defined study objectives, comprehensive theoretical framework on the topic will be implemented, and the topics under analysis will be carefully studied. This doctrinal work followed for the writing of analytical work is both methodological and descriptive. The investigator sought to evaluate all channels critically, such as books, journals, and e-resources. E-resources have made an important contribution to accessing the most important and existing information of the site in the study, which has helped the researcher to analyze the subject across various dimensions.

“The Importance of Nonverbal Communication in the Courtroom”
It can be now well established that nonverbal signals perform a variety of roles that are needed for successful human communication. Any of the most significant are: “(a) transmitting our identity (e.g., history, appearance, gender, beliefs, and so on); (b) communicating our attitudes and feelings (e.g., positive-negative feelings and feelings of superiority-inferiority, as well as simple emotions such as indignation, pleasure, fear, and so on); and (c) making initial perceptions of oneself and stereotyping others (d) constructing and enabling the flow of an interaction (e.g., nonverbal actions serve as ‘traffic signals’ that direct turn-taking among speakers and listeners); (e) affecting others; (f) facilitating in the comprehension and production of speech; and (g) allowing us to deceive and send ‘mixed’ messages.”

According to LeVan (1984), nonverbal contact in the courtroom has a subtle impact on the whole prosecution proceedings. It is there and being asserted, but the lawyer is often oblivious of its presence. Any person in the courtroom can see and hear gestures and facial expressions and that is a catalyst to the significance of such communications.

Opening and Closing Statements

“The attorney in their opening statement uses gestures and eye contact to persuade the jury. Via their stance and facial features, the judge silently communicates their feelings about the prosecution to the jurors. In his general demeanour and the clothes he wears, the client unwittingly delivers messages to the jurors.”

The attorney’s rhetorical abilities must provide the opportunities to transfer a message in a reliable way. More than two decades of studies on speaker reliability and non-verbal communication have yielded a wealth of knowledge regarding the particular non-verbal habits that appear to raise or decrease judgments of audience that how dynamic, genuine, and knowledgeable a speaker is Moreover, several experiments in the courtroom setting suggest that nonverbal speech by lawyers can affect attitudes of attorneys and assessments of guilt or innocence. “In general, factors such as a moderately fast speech rate, fluent speech, strong eye contact, channel consistency (avoiding contradictions between one’s words and facial expressions as well as between two different nonverbal channels such as one’s voice and body movements), confident and varied tones, a direct and conversational style. Burgoon, Birk, and Pfau examined the nonverbal actions of undergraduate students assigned to give in-class persuasive speeches in a recent study.”

The topic of successful nonverbal interactions in opening and closing statements has also gotten a lot of coverage. Several experiments have been conducted to examine the effect of an attorney’s speech style on reputation scores and guilt decisions. “According to one study published in Rieke and Stutman (1990), ‘aggressive’ prosecuting attorneys (fast pace of speech, a lot of eye contact, facial expressions, offensive verbal inflections, and high volume) were considered more successful by jurors than either passive or assertive attorneys. And ‘passive’ prosecutors have the most difficulty obtaining guilty verdicts”.

Nonverbal correspondence by attorneys was also reviewed by “Barge, Schlueter, and Pritchard (1989). In an opening statement given to undergraduates, they discovered that fluent speech improved scores of integrity, conversational speech increased expectations of trustworthiness, and non-fluent speech delivered in public rather than conversational style was the least effective in obtaining a not guilty verdict. In a similar report, the impact of male or female voice signals on interpretations of a prosecuting attorney’s closing remarks was investigated. The findings revealed a potential gender difference in that women rated the female attorney negatively (e.g., less intellectual, less polite, less expert, less experienced) than the male attorney.”

Expectancy violations are one potential extension of nonverbal philosophy to the success of lawyers in court. In a nutshell, the principle holds that a speaker can become more convincing by getting involved in non-verbal actions that contradicts the message recipients’ perceptions. This favourable result is most likely where the communicator is strongly valued from the start (also known as “reward value”). A reputable solicitor, for example, can gain reputation with admiring jurors by standing nearer or speaking clearer than they anticipated. LaVan demonstrates how this idea could apply in the courtroom by considering an attorney’s wardrobe: ” “An attorney may choose to ditch her conservative and traditional attire in favour of a more vibrant and informal look.  If they changes their appearance and then makes a logical and compelling case, they will defy the jurors’ standards and therefore be more convincing.”

Client Demeanour and Witness Examination

Since jurors have easy accessibility to the defendant during the courtroom, the stereotyped perceptions they form based on facial presence and attitude may have a profound impact on the trial’s result. In this case, research on attractiveness, dress, facial features, and body language may be very useful. Attractive criminals, in fact, are perceived as less guilty of crimes than their unappealing equivalents (unless their looks somehow aid in the commission of the crime) and can receive shorter sentences. Several reports have looked at the “halo effect” on presence in the courts. In one of the first experiments, Efran discovered that, “despite the fact that more than 90% of those polled agreed that it would be unreasonable to allow a defendant’s appearance to impact guilt or innocence judgments, male participants were more likely to find an unattractive student guilty of wrongdoing than an attractive student, and were more likely to suggest harsher penalty for the unattractive student.”

Particularly in the case of rape and sexual harassment cases, the appearances of both the accused and the suspect may be specially relevant to judges who might dismiss the evidence of a homely accuser, challenge the refusals of an ugly convict, or believe the accusations of a glamorous victim. “After reading a synopsis of a case in which a woman is attacked and raped while walking to her vehicle, participants in one research (Jacobson, 1981) were more inclined to believe the woman’s characterization of the rapist if he was unattractive than if he was handsome. Furthermore, if found guilty, the unattractive man served a much longer prison term than the beautiful man. Many reviews on sexual crimes have shown similar findings.”

“A noteworthy feature of nonverbal communication science is work in the field of emotional contagion” In summary, this thesis fundamentally holds that people can ‘catch’ the feelings of others around them, and that some people are more vulnerable to this effect than others. “In recent years, it has been common for defence lawyers to represent their clients as ‘victims’ of some sort of violence in court (i.e., the ‘abuse as an excuse’ scenario). If jurors are forced to experience the defendant’s despair, they will be less likely to make a guilty conviction and more lax with their decisions.”

Cross Examination

In comparison to overt questioning, lawyers in this case employ nonverbal techniques to undermine the witness; to harm rather than help reputation. Furthermore, nonverbal cues of deceit become particularly relevant. First, in terms of reputation, the attorney often employs nonverbal actions to threaten or demean the witness, if necessary (probably not appropriate for people prone to elicit support from a jury, such as infants, the poor, the aged, and so on). More is learned about the force and superiority communicated by looking, harsh voice tones, frowns, pointing motions, near distances, indirect alignment, intentional silence, smiles, and so on.

“Indeed, these ‘nonverbal demonstrations of rank’ are implicit signs of contempt, and although they may be used to threaten, some evidence indicates that excessively ‘hostile’ cross-examination techniques can decrease an attorney’s perceived efficacy. If an attorney may use nonverbal techniques to ‘ruffle’ the victim, it is equally critical that the attorney’s nonverbal action in reaction to the witness remains ‘unruffled’ (e.g., absence of hesitations, uncomfortable gestures, etc.) in order to preserve the poise necessary for enhanced reputation.”

“People’s nonverbal communications can be more honest than their spoken words because they have less conscious knowledge of and power over the nonverbal medium of communication than the verbal channel. To diagnose deceit, pay close attention to improvements in the ten most accurate nonverbal markers, which seem to be voice tone, hesitations, speech errors, reaction length, blinking, pupil dilation, adaptors, channel differences, fake smiles, and illustrators.” However, efforts to apply the analysis to real courtroom circumstances might be unwise in this case.

Judge Demeanor and Communication

The judge’s nonverbal conduct during a courtroom has been studied to assess what it might show and the impact it may have on the jury. According to one report, “the judge’s gaze style can be insightful.  Specifically, because the judge’s colour determined who was stared at (i.e., black judges gazed more at white defendants; white judges gazed most at black defendants), and that the more a judge glared at a defendant, the higher the defendants were fine if convicted.” As Blanck, Rosenthal, and Cordell note: “It is possible that when judges expect or predict a certain trial outcome, they intentionally or unintentionally ‘appear’ to behave toward jurors in a way that indicates what they think the outcome should be, thereby setting into motion behaviors and trial processes that increase the likelihood of the occurrence of a certain trial outcome.”

Reported prejudice in the course of a judge’s nonverbal contact may be ample grounds for an appeal in some instances.” Blanck, Rosenthal, and Cordell” (1985) conducted the most extensive research to date, examining videotapes of five “California Municipal Court” judges giving final jury recommendations to jurors in real criminal trials. Their findings suggested that the criminal histories of the accused influenced the judges’ nonverbal conduct.

I personally tried to communicate with several Indian lawyers and Trial court Judges and the told me that such factors are prevalent in legal discourse in India also, immensely on the basis of Castes, Religion and sex of the accused and witnesses

SUGGESTIONS

About the fact that nonverbal action is important in almost all communicative environments, nothing has really been done to synthesise our knowledge on the effect of nonverbal contact in the courtroom setting which can be unfortunate given that few contexts rely on the use of both spoken and unspoken medium. There are also some incidents when lawyers and judges try to perceive the culpability of an accused on unethical grounds as seen in the case of cross examination and the reasonings applied by judges while coming to a decision.

Since the immense impact of the nonverbal discourse in courtroom proceedings cannot be neglected, it become essential that the individuals involved in the legal profession are well versed with the skills required to read the non-verbal cues. In my understanding, the individuals involved in legal framework shall be made fundamentally aware with the aspects related to non-verbal communications. This can only be made possible if a person has required knowledge of human psychology and intellectual capacity to apply that knowledge in the courtroom proceedings.

Hence, ethics and human psychology are two aspects that shall be well taught and tested in the law schools and competitive exams for judges before they get their doors open to enter into the legal structure.

CONCLUSION

While the apparent importance of nonverbal interaction in the courts, observational evidence in this field remains far from conclusive. A lot of guidelines, mostly on how to behave and what to wear, are based upon personal data, an inadequate number of tests, or studies done outside of the courtroom setting. As a result, the results presented here should be viewed with extreme caution. Indeed, virtually without any exception, flaws in the research’s ecological validity (e.g., use of college students as jurors, unrealistic stimulus materials, making judgments with no specific repercussions, etc.) make generalisation to the courtroom setting impossible. This is comparatively a new field of scientific study, but it is expected to pique the attention of academics from a variety of disciplines.

AUTHOR

Nitish Kumar Shukla