Yesterday we learned that in deciding whether a witness is lying or not, the considered judgment of an ordinary juror is roughly as accurate as a coin flip. Today's post is more cheerful: jurors will do a lot better with your help.
In academic deception studies, subjects must decide by themselves whether they're listening to a lie. Jurors, by contrast, have you. Your task in assisting them will be difficult and often tedious, but it's simple and easy to remember: fight lies with facts. That means:
1. Facts, not decibels. Don't shout. Don't roll your eyes, scowl, or make any of the other faces that feel so satisfyingly theatrical. Anger is not contagious. If you doubt it, think of the last time you watched someone shouting in anger, and ask whether any of that rubbed off on you. Take the energy you want to put into yelling, and devote it instead to gathering and lining up the facts that will expose the lie.
2. Treat your own facts with care. If you're planning to call someone a liar, guard your own credibility like a fragile treasure. Don't stretch it, scratch it, bruise it, or chip it, and don't let it out of your sight. The same goes for your client's credibility, of course.
3. Find the facts that show motive. The jury needs to understand exactly what will change in the witness's life if her lie is believed, and what will change if it is not. Remember that jurors have no context; it may be obvious to you why the witness is lying, but you'll assist the jurors if you lay the motive out in detail, fact by fact.
4. Find the facts that show character. This one is obvious, but again it takes time: if you have prior lies, admissible "bad acts," or other facts that show this is the kind of witness who would lie to a jury, you bring them out in detail.
5. Find the facts that expose the mistake. Most important, dig out your logic training. By definition, a lying witness always has some facts wrong, and you need to find them. To do that, you need to pretend you're Columbo, and identify the witness's factual mistake.
It's remarkably difficult to put in words what exactly is wrong with a witness's story. We'd be better at it if we'd taken, or remembered, more logic classes in school. One of the best refresher courses right now is Robert Musante's seminar, "The 25 Credibility Arguments for Deposition & Trial," part of his "Take A KILLER! Deposition" series. His "25 credibility arguments" are listed in the course schedule on his web site, and they're a great checklist of the most common fallacies we find when we deconstruct a typical courtroom lie. Ask the factual questions that expose and dramatize the fallacy, and you've given the jurors the words they'll need to reject the lie.
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Resource note: Robert Musante bills his seminars as "the four BEST cross-examination seminars . . . EVER!" and I'm not sure he's far off. They're very similar, but I've still found repeated trips worthwhile. On the first day you absorb his message: great cross-examination is grounded in strong depositions and investigation, not courtroom theatrics. On later trips you can take some notes on the very good presentation style you're watching, and you might save a whole seminar just to watch his over-the-top PowerPoint presentation, a masterpiece of the medium.
(Photo by Timothy Vogel at http://www.flickr.com/photos/vogelium/333456488/; license details there.)