Whatever Your Trial Solution, Don’t Forget About Communication

Holland & Hart - Persuasion Strategies

Holland & Hart - Persuasion Strategies

As our court system looks at the possibilities for trials under the current pandemic conditions, it seems like we face a choice: Restart trials in person, with distance, disinfectants, masks, and barriers; or move the process online with unequal technology, glitches, and lower fidelity. While there are certainly practical challenges with either option, so far I think I’ve seen more critical attention focused on the second option, the online trial. For example, last week the Washington Post covered what seems to have been the first online criminal jury trial with the headline, “Criminal Jury Trial by Zoom: Frozen Video, a Cat — and Finally a Verdict.”  Conceding that the video problem — a juror freezing on the screen after losing internet access, and then being replaced by the court — was the only technical issue experienced (the cat just provided momentary entertainment), the article nonetheless focuses on the problems rather than the possibilities.

To some extent, I think that tendency has been adopted in academic writing as well. In a recent research comment in the Journal of Nonverbal Behavior (Denault & Patterson, 2020), communication and psychology experts from the University of Montreal and University of Missouri-St. Louis caution against lawyers and courts moving to technological solutions like Skype or Zoom, arguing that these media “could harm the integrity of the justice system.” The point of the piece is that, even as nonverbal communication isn’t a reliable guide to truth-telling, its importance cannot be simply written off as unimportant in the adversarial process. That is an important point, and one that is relevant to any court practice that would downplay the importance of communication. It is hard to argue, for example, that nonverbal communication would necessarily fare better in a courtroom full of masked counsel, witnesses, and jurors than it would in a proceeding conducted over Zoom. I have written recently that there is very little evidence that masks hinder a determination of truthfulness. But it is doubtless that in the broader communication spectrum, something is lost when much of the face is covered. In this post, I will address the researchers’ comments on Zoom or Skype trials, and aim to broaden their application to any practice that would diminish the necessity or effectiveness of interpersonal communication in a courtroom context.

Courts Are About Communication

We have an adversarial system, and that means the intent is that if both sides do their best, the truth will win out. That’s an idealization, of course, but it is one in which communication is not an afterthought. Good communication is part of what both sides are supposed to bring to the search for truth. That means that limitations that might be tolerable from a strictly logical or technical perspective should not be tolerable in a courtroom communication context.

For example, earlier this summer, I was working with an online research company to create a test case for an online trial. The company was using both telephone and webcam connections and, as a result, there was a significant lag between hearing speech and seeing someone’s mouth move. The attitude of the company was, “It is not ideal, but at least we can see them and hear them.” But that is not good enough for a trial. A speaker being out of sync or otherwise interrupted by technical glitches interferes with our ability to process the message. Few of us would willingly watch a movie that way for more than a few minutes, so we shouldn’t accept that distraction for the higher-stakes setting of a trial.

In the research article, Denault and Patterson quote the Canadian Supreme Court arguing for a broad-spectrum view of courtroom communication: “Credibility must always be the product of the judge or jury’s view of the diverse ingredients it has perceived at trial, combined with experience, logic and an intuitive sense of the matter.” The authors add, “The belief that ignoring faces and bodies will result in more rational judicial reasoning, without further adverse consequences, is not supported by empirical evidence.”

Nonverbal Communication is Not Just About Lie Detection

The authors note that there is an academic tradition of criticizing demeanor evidence, noting its unreliability. Much of that research, they note, is based on failures in lie-detecting tasks. That is a common assumption, and one that I may have fallen victim to in my past comments on masked testimony, but clearly the evaluation of testimony is not limited to lie detection.

One can imagine a simple case that really would come down to deciding if a piece of testimony is true or not: Was the light red or yellow at the time you crossed the intersection? But in more realistic and complex cases, those evaluating the testimony are looking at more than just strict truthfulness. Attitudes, affect, interests, prejudice, competence, courage, leadership, and dominance could all factor into a broader assessment. At a bottom line, jurors and judges are considering character and not just truthfulness — they’re looking at the whole person. And that is not just inevitable, it is proper in an adversarial system.

The Solution: Don’t Just Settle for Logos

Communication is multifactorial, and this has been recognized as far back as Aristotle’s three forms of artistic proof. Communication consists of ethos (character), pathos (emotion), and logos (language and reasoning). The legal process properly prioritizes logos, since cases should be decided by evidence and not by passions. But in a courtroom, you need all three legs to that stool.

So as courts continue to seek out ways to adapt to the current pandemic or other challenges, it is essential to bear in mind that the communication contexts we are creating need to be as complete as possible. In the present circumstances, a masked and distanced courtroom can be just as limiting for good communication than an online courtroom, or more so. For example, in the online trial that I participated in as part of the Online Courtroom Project’s demonstration in June, some jurors who had previously served in person noted that they appreciated seeing the camera’s view of a witness, and felt that it gave them a better vantage point than the view from the jury box in a physical courtroom. The authors of the research article focus on the limits of an online trial rather than the limits of an in-person trial (particularly in a pandemic), but I believe the most important takeaway is that in either option, we should aim to make the experience as communicatively complete as possible.


Image credit: 123rf.com, used under license

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Holland & Hart - Persuasion Strategies | Attorney Advertising

Written by:

Holland & Hart - Persuasion Strategies

Holland & Hart - Persuasion Strategies on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.