Gurumurthy / The Influence of Non-Verbal Communication in A Court Room
THE INFLUENCE OF NON-VERBAL COMMUNICATION IN A COURTROOM Jyothsna Gurumurthy1 ABSTRACT This paper explores the field of communication as an important variable in the making of a decision by the participants in a courtroom situation. The search for an essential link between the use of non-verbal communication and its role in influencing or affecting the judicial decision making capability of courtroom players, has been the main focus of this paper. The central argument revolves around the existence of the above-mentioned link, and establishes the need to create awareness about the influence that such communication wields in the courtroom. How certain players have an advantage over the others, is further discussed, in a section that extends Marc Galanter’s analysis on “repeat players” and “oneshotters”.
KEYWORDS: Non-verbal communication, Courtroom communication, repeat players, one-shotters.
players,
influence
of
INTRODUCTION “I can do everything with my language but not with my body. What I hide by my language, my body utters. I can deliberately mold my message, not my voice. By my voice, whatever it says, the other will recognize "that something is wrong with me". I am a liar (by preterition), not an actor. My body is a stubborn child, my language is a very civilized adult...” ― Roland Barthes, A Lover's Discourse: Fragments Lawyers have been known to be the ‘skilled manipulators of language’2 and are considered to have the ability to lead the court to “accept or doubt their evidence” 3 . They effectively use language as a tool to further their arguments and establish why the case should be decided in the favour of their client. Hence proficiency in language is something that is considered to 1
Student, Batch of 2019 at NALSAR University of Law, email-id:
[email protected] Meriel Bloor & Thomas Bloor, The Practice of Critical Discourse Analysis: An Introduction, 160, Routledge (2013) 3 Id. 2
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be paramount, if one ever wants to pursue law as a career4. There is thus a popular notion (often, misconstrued), that a lawyer well-versed in the language of the court, and possessing the ability to argumentatively put forth her/his arguments, will succeed in influencing the judge and jury of her/his point of view.5 This leads us to the important question of what the ‘language of the court’ means in its entirety. Does the use of this phrase merely refer to the technicalities in terms of correct usage of words to be used in the courts, or are we, in a sense, highlighting the new development of attributing meanings of social actions to the simple variations observed in spoken/unspoken language, i.e. understanding language as a means of communication, rather than a body of words? There exist several factors that play an important role in influencing the judge’s decision in a particular case. These include not only judicial precedents but also the judges’ personal biases, her/his background (race, sex, etc.), credibility of a witness, credentials of an expert, or even the attractiveness of a witness. 6 These peripheral factors play a major role in influencing the judicial temperament, i.e. the judge’s mood. This in turn creates the problem of lack of impartiality in the making of a decision and leads to the passing of a biased judgement, that may be unjust i.e. not be in accordance with the principles of natural justice. One of the most influential of such extraneous variables, on the verdict passed, is that of non-verbal communication7 among the various participants in the courtroom. What are the different ways in which non-verbal communication can be seen in a courtroom? How is non-verbal communication used in a courtroom by different participants (lawyers, judges and witnesses), to further their cause? What is the influence of such communication on a judicial decision? These are the questions that I will be exploring in this paper. This paper aims to bring out the importance and subtleties associated with non-verbal communication in the courtroom. This communication can be between the judge and the jurors, between the counsels, between the judge and the counsels, amongst the jury, between the witnesses and the judges, 4
Top 10 Qualities Of A Great Lawyer, available at: http://environmentallawschools.org/resources/top-10-qualities-of-a-great-lawyer (last visited at 18:58, 06/01/15) 5 Gerald Lebovits, Advocacy: How to Persuade Judge and Jury, available at – http://dhsmocktrial.weebly.com/lebovits-how-to-persuade-judge--jury.html (last visited at 11:47, 19/07/15). 6 B.H. Bornstein & Edie Green, Jury Decision Making: Implications For and From Psychology, Current Directions in Psychology Science, 2011, available at: http://cdp.sagepub.com/content/20/1/63.full (last visited at 09:00, July 21st, 2015) 7 Brian L. Cutler, Encyclopedia of Law, SAGE Publications 2008.
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etc. There are several emotions and thoughts that are expressed non-verbally by every courtroom participant. While words are in control of the person speaking them, body language (non-verbal communication) is often involuntary and considered to be a true reflection of what one believes in. Hence, an attorney’s or a witness’s facial expressions may not be in line with what they are saying. A close observance of this discrepancy can throw light on deception in a courtroom, and on the other hand, can even be used to validate a particular point being made. 8 Further, analysing non-verbal communication ‘plays a critical role in credibility assessment in a courtroom’9.
BROAD THEMES: I.
TYPES OF NONVERBAL COMMUNICATION
Non-verbal communication is a form of communication that involves conveying meaning (feelings, thoughts, and ideas) through body language, facial expressions, gestures, eye-movements, etc. It is basically communication through means other than words, and is thus opposed to verbal language. Hence, non-verbal communication can also include voice modulation and the tone in which a particular sentence is said (paralanguage). 10 In a courtroom, non-verbal communication essentially conveys to others, the true representation of a person’s opinion and her/his knowledge of the truth of a situation. This non-verbal communication can be engaged in by all participants in a courtroom – The judge and jury, lawyers/counsels, witnesses and even persons who are recording the proceedings/happenings in the courtroom. Non-verbal communication and facial expressions are present at all points during a judicial proceeding. For example, a trial starts with the attorney’s oral presentation of facts and arguments advanced in favour of her client. She begins her presentation with eye-contact with the judge and accompanies this with a confident posture and gestures, which are used to persuade the jury. The judge conveys her opinion on the case to the jury through her posture and facial expressions. The witness or the client creates an impression as soon as she/he enters the courtroom. Opinions will be made, and messages will be conveyed about the witness, based on the clothes he/she is wearing, his/her appearance in general, restlessness(body language) and how the client tries to present her/himself in front of the 8
Remalnd& Martin S., The Importance of Nonverbal Communication in the Courtroom, April 1993, available at http://files.eric.ed.gov/fulltext/ED378612.pdf (last visited at 09:21, July 21st 2015) 9 Pointed out by Supreme Court of Canada in R v B ( KG 1993) 10 Elizabeth A. LeVan, Nonverbal Communication in the Courtroom: Attorney Beware, 8 LAW PSYCHOL. REV. 83 (1984).
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judge or jury (confident or diffident). 11 There are certain situations (e.g. inconclusive evidence) in which credibility of the defendant and plaintiff depends solely on how he/she appears to the judge or other non-verbal communication that they indulge in, which solves the problem of “determination of guilt”.12 This was seen in the case of R v. Malik & Bagri, 2005 13 , where the judge concluded that “…the determination of guilt devolves to the weighing of the credibility of a number of witnesses who testified in these proceedings.”14 a. The Judge: The judge is one of the most important players in the courtroom. 15 His/her decision is paramount and his/her opinion is considered very important in reaching an unbiased and just decision in a particular case. A judge herself may have certain pre-conceived notions about a particular issue that can often hinder unbiased decision making. A judge’s beliefs and expectations in a trial can be manifested nonverbally through facial expressions and posture. The different nonverbal behaviours that can be recognised as influences are – i. “Amount of eye contact with the jury, ii. Number of smiles, iii. Number of head nods, iv. Number of significant hand movements, v. Number of forwards leans to and away from the jury vi. Number of significant changes in body position (fewer shifts designated as “postural attention”), and vii. The number of self-touching behaviours such as chinrubbing.”16 The judge may believe in a defendant’s guilt, and this belief may be conveyed by way of non-verbal communication to the jury, which keeps a close eye on the judge and her reactions (Rosenthal Effect).17 A clever and observant attorney can use this communication to set the state for judicial disqualification. For example, in the William Kennedy Smith rape trial, the prosecution alleged that the trial judge’s bias for the 11
Id. Stephen Porter & Leanne ten Brinke, Dangerous Decisions: A theoretical framework for understanding how judges assess credibility in the courtroom,Legal and Criminological Psychology, 4 19–134 (2009) 13 2005 BCSC 350 14 Id. 15 The Players in a Trial Courtroom,available at : http://www.azcourts.gov/ guidetoa zcourts /ThePlayersinaTrialCourtroom.aspx (last visited at 08:30, July 20th 2014) 16 David Blanck and Robert Rosenthal, Non-verbal Behaviour in the Courtroom in Applications of Nonverbal Behavioural Theories and Research, 101, Psychology Press (2014). 17 Id. ( footnote 95) 12
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defendant was reflected through her nonverbal behaviour. The prosecution attempted to disqualify the judge on the grounds, among others, that “her facial expressions and body language expressed preconceived biases about her views of the ultimate trial outcome”.18 A judge may show her biases during a counsel’s presentation of arguments as well. For example, in a Missouri criminal case, the defendant claimed – ‘When the brother of [defendant] testified that [defendant] was at home watching television on the night of the burglary, the trial judge “placed his hands flat to the side of his head, shook his head negatively once, leaned back and swivelled his chair 180 degrees around”’19 The issue that such conduct on part of the judge raises, is that the jury which keeps a close eye on her every move, will be influenced by such nonverbal behaviour, and would unconsciously internalise the judge’s view on the situation, which comes to their awareness when they interpret such behaviours of the judge. However, if forewarned by the judge to ignore any such non-verbal communication on her part, the jury might put aside the influence of such behaviours and concentrate on the case as such. 20 b. The Witness: A witness is another participant of the courtroom who is often considered to be the deciding factor in a case. A false testimony can render all the arguments of the opposing counsel completely invalid. Hence, the study of non-verbal behaviour elicited by a witness is of paramount importance in such instances. The common behaviours that are associated with lack of credibility of the witness include nervous and suspicious eye movements, hesitant tone of voice, lack of emotion expressed, shuffling feet and inconsistencies between spoken and body language. 21 “A witness’s nonverbal expression of nervousness could also be perceived as deceitfulness… picking at fingernails, grabbing one’s knees, digging into one’s palms and playing with one’s face by scratching the nose or chin have been associated with both anxious and deceptive behaviour.” 22 A witness is thus often asked to avoid behaviours that are associated with the common notions of a liar, or
18
Peter Blanck,Calibrating the Scales of Justive: Studying Judges' Behaviour in Bench Trials, INDIANA LAW J. Fall (1993).Footnote 35 19 Supra n. 10 at 85 20 The judge in United States v. White fell asleep during the proceedings of the court. He had however warned the jury at the start, that this could be a possibility, due to a medical condition that he was suffering from. Hence the jury was forewarned of such behaviour and consciously discounted it while making a decision on the case. – Supra n. 10 21 Supra n. 16 at 1 22 Supra n. 10 at 87
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prevent him/herself from engaging in behaviours that will cause suspicion of evading a particular question. 23 Even inconsistency in the behaviour that is expected from the witness can be interpreted as deception on part of the witness and the side that he/she is giving testament for. For example, in William Wallace’s case, he was suspected in the murder of his wife, because he showed no emotion in court, because people are often expected to show emotions on the death of their spouse. The court did not consider the argument that he could be a ‘practising stoic’ and display of emotions was against his basic nature. 24 Another important issue here is the need for the judges and jury to be aware of the role of various cultural differences what is considered ‘appropriate behaviour’. For example, for a person who is a Native American or Asian, the appropriate behaviour involves averting gaze, or looking down when speaking to a higher authority (in this case, the judge) as a sign of respect. However, if the judge has been brought up in the Western American tradition, he might interpret this form of behaviour to convey a sense of anxiety, and thus might pass a value judgement on the credibility of the witness, rendering him/her as untrustworthy in the eyes of the law.25 Another example is that of the Aboriginals. Often, Aboriginals do not express emotions. This practice of stoicism could be “interpreted as a sign of guilt, lack of remorse or deception by decision makers (Kaufmann et al. 2003).” 26 Caucasian Canadians view ‘people who do not provide direct eye-contact as being shifty, devious, dishonest, crooks, slippery, untrustworthy, etc.’ 27 However, for Aboriginal cultures in Canada, maintaining eye-contact is seen as a sign of disrespect. 28 Another misconstrued notion is that of pronouncing a judgement based on the nervousness of the witness when he/she is testifying in court. This nervousness and anxiety could have arisen due to unfamiliarity with the usual court procedures, and the discomfort felt due to wearing the particular type of clothes (formals) as prescribed, in the court. 29 It
23
Supra n. 8 at 11 Supra n. 16 at 22 25 American Bar Association, A Judge's Guide: Making Child-Centred Decisions in Custody Cases, 11 (2008) 26 Supra n. 12 27 Brant, 1993 28 Supra n. 12 29 Supra n. at 11 24
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doesn’t necessarily mean that the witness is lying or is trying to cover up his/her guilt. Hence, judges need to be sensitive to this aspect as well. c. The Attorney/the Lawyer: As mentioned before, lawyers are considered to be the ‘skilled manipulators of language’. However, lawyers also use non-verbal communication to influence judges and the jury, and in certain cases, also elicit the particular information, that they require to move the case in a definite direction, from clients and witnesses. 3031 Lawyers conduct themselves in a particular manner in order to establish a rapport with the jurors during voir dire.32 “Building rapport includes the use of “warm” non-verbal behaviours (e.g. close distances, eye contact, smiles, soft vocal tones, etc.) and the avoidance of antagonistic cues (e.g. sarcastic tones, turning away, intimidating gestures, etc.).” 33 Paralanguage and appearance (generally, clothing) also play important roles are cues that give the judge an idea of the attorney’s position. d. The Client: The client in this scenario mostly refers to the defendant, because the scope of this research paper is limited to discussing how a client’s appearance can influence a judge’s decision, and in several instances, the judges take into account a defendant’s appearance before passing a judgement. Though extremely superficial, one of the main factors that influence judges as well as the counsels, is the attractiveness of the client, whether male or female. 34 Generally defendants/clients who are more attractive tend to avoid punishment, or are ‘found’ not guilty, or their sentence is lowered considerably. This thus establishes the ‘halo effect’35 – where, once a person is perceived to be good, every subsequent act of his is considered to be a representation of the same good. Essentially, it is believed that this ‘good’ person can do no wrong. Thus an overall belief about the broad impression of a person leads to believing the same about the specific characteristics of the person. 30
Vicky Campagna, Voir Dire: An Art in Search of Science, 2009 available at:http://winattrial.com/voirdire.htm (last visited 19:57, 23rd July) 31 Pruitt, Lyn P., Overcoming Jury Bias, Defence Counsel Journal, July 2002, available at: https://www.questia.com/library/journal/1G1-90625007/overcoming-jury-bias-trialadvocates-must-understand (last visited 19:57, 23rd July) 32 “Voir dire is the questioning of prospective jurors by a judge and attorneys in court. Voir dire is used to determine if any juror is biased and/or cannot deal with the issues fairly, or if there is cause not to allow a juror to serve (knowledge of the facts; acquaintanceship with parties, witnesses or attorneys; occupation which might lead to bias; prejudice against the death penalty; or previous experiences such as having been sued in a similar case)” Legal Dictionary - Law.com, Law.com Legal Dictionary, http://dictionary.law.com/Default.aspx? selected=2229 (last visited Oct 10, 2014). 33 Supra n.8 at 2 34 Supra n. 10 at 92 35 Karen Dion, Ellen Berscheid& Elaine Walster, What is beautiful is good., 24 J. PRES. SOC. PSYCHOL. 285-290 (1972)
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However, attractiveness becomes an influence according to the crime that has been committed. If ‘good looks’ are required for a crime (such as swindling), then attractiveness in this case will be used negatively against the defendant. It has also been noted, that the more serious the crime, the less will be the influence of attractiveness of the defendant. 36 Another interesting aspect about the influence of attractiveness comes out in the study conducted by Friend and Vinson37, who conducted this study in other to prove their hypothesis that judges may ‘lean over backwards’ when asked to be impartial. After asking three groups of judges to decide the verdict based on attractive, unattractive and neutral defendants, and having informed a few of them to be impartial in such decision making, it was seen that these instructed judges gave the unattractive defendants a less harsh punishment and the attractive defendants were given a harsher sentence. This shows that when told to be impartial, the judges go against their biases and do the exact reverse of the message that was conveyed to them at the first instance (based on the attractiveness of the defendant – whether or not he/she was guilty). Similar to the attorney, even a client is judged based on the clothes he/she wears to the courtroom. Facial expressions that appear to convey guilt also influence the judge and jury.38 II.
INFLUENCE OF NONVERBAL COMMUNICATION
Non-verbal communication in the courtroom thus covers a wide range of behaviours that, under normal circumstance(outside the courtroom) may not have the same impact, or be thought of in the same way, as they are interpreted within the context of a courtroom. Within a courtroom, any cue/gesture, however minor, will be interpreted in a way that will help give a just verdict, and thus punish the guilty party. While in a social gathering, a lack of emotion while recounting a particularly painful incident, might just be put down to attributing a characteristic of apathy to the narrator. In a courtroom however, this can be seen to either indicate a narration that has been rehearsed, and hence manipulated, or a lack of emotion might be interpreted in a different way as explored in the coming section. Non-verbal communication, in particular body language, is considered to be a very important determinant in convincing the judge and jury of a particular
36
Supra n. 8 at 6 Ronald M. Friend & Michael Vinson, Leaning Over Backwards Jurors “Responses to Defendants” Attractiveness, 24 J. COMMUN. 124-129 (1974) 38 Supra n. 8 at 9 37
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stance. 39 Hence lawyers often employ this principle when they are preparing their witnesses and clients for a presentation before the court. Witnesses are told not to slump shoulders, to sit upright and appear confident. This shows that body language and posturing is considered to be effective in validating a particular point and hence importance is given to consciously maintaining it in line with what is being orally presented. Thus credibility of the witness is established before the court in the aforementioned ways. A proficient lawyer succeeds in convincing the judge and jury on the issues he/she puts forth.40 This is achieved through a number of non-verbal cues that try to establish confidence on part of the lawyer, as well as, show the imperativeness of understanding and ruling in favour of the argument that is being put forth by her/him. Thus the delivery of the arguments needs to be in a confident, fluent and persuasive manner. The speed of talking, eye contact with the judges, consistency in facial expressions and spoken words, voice modulation and natural gestures (avoiding fake body movements in order to emphasise a point) are consciously used by the lawyer when he/she is putting for the arguments for the counsel that he/she is defending. 41 However lawyers can also use body language to “intimidate or demean witnesses”42 and elicit information from them in a threatening manner. This technique is often used during the process of cross examination. These nonverbal behaviours include loud tones, facial expressions such as frowns, staring, pointing gestures, particular postures adopted while questioning that seem daunting and unnerving, etc. 43 Paralanguage plays a very important role in influencing judicial decisions.44 Thus, it is a technique that is often used by attorneys to their advantage.45 The appearance of a lawyer is also taken into consideration by the judge. A lawyer who follows the traditional norms and conventional methods of dressing and appropriately presents himself before court, following the protocol to the tee, is said to be more persuasive than one who dresses unconventionally and does not follow the protocol of the court procedure.46 39
Maggie Tamburro, Nonverbal Communication - A Scientific Weapon for the Courtroom?, available at: http://technology.findlaw.com/modern-law-practice/nonverbalcommunication-a-scientific-weapon-for-the-courtroom-.html (last visited July 23rd, 2015). 40 Supra n. 6 41 Supra n. 39 42 Supra n. 8 at 12 43 Id. at 13 44 Non-verbal Communication in the Courtroom, available at: http://www.stephanpeskin.com/NY-Injury-Resources/Resources-for-Attorneys/NonVerbal-Communication.shtml (last visited on July 22nd, 2015) 45 Supra n. 10 at 95 46 Id. at 96
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The way a lawyer dresses, has different influences on different judges. For example, in David Nathan’s article “Courtly Attire: How to Dress-Win Your Case”, John Malloy, who was interviewed, said that the jury would not take a lawyer seriously, if he was wearing a bow-tie. Women, he says, “should dress sharp, contrasting colours for example, a blue suit with a white scarf….heavy make-up should be avoided, as well as lace, pleats or anything that someone might consider ‘silly’, like bow ties”47. Another example of this influence is seen in the memo brought out by a comment made by a Tennessee judge in Rutherford County.48 Judge Royce Taylor made a rule that required female lawyers to “dress more professionally”. He didn’t think “it was appropriate for female lawyers to wear sleeveless dresses and revealing blouses”. He even stated, “Your personal appearance in court is a reflection upon the entire legal profession”. Thus this effect of appearance on the judges is used by the attorneys, to display their seriousness and competence. The lawyers may also inform and instruct their clients and witnesses to dress appropriately, or in a particular way, that they believe will impress the judge and hence this may gain the ruling in their favour. Judges too, use the tools of non-verbal communication in order to get their opinion across to the jury, or show assent or dissent to points being put forth by the counsels on either side. A judge’s demeanour and tone of voice are tools that he uses to get a particular opinion across to the jury. If he talks to them in colder and hostile tones, he might be expecting a guilty verdict, as opposed to when he uses relatively warmer and less hostile tones when he expects an innocent verdict. 49 A study conducted by Dorch and Fontaine in 1978 revealed that information about the guilt of the defendant could be pre-determined by studying the “gaze pattern” of the judge. This gaze pattern of the judge was mostly influenced by his/her race – i.e. a white judge gazed most at a black defendant, and a black judge gazed most at a white defendant. It was found that the more the judge gazed at the defendant, the more likely it was that the defendant would be found guilty. 50 Thus the judge through her facial expressions, tone of voice and body posturing is able to effectively 47
Antoinette Nicole Luciano, The Influence of Attorney’s Attributes and Behaviours on the Jury’s Verdict available at: https://www.pace.edu/honors-college/sites/pace.edu.honorscollege/files/Honors_College/best_of/Luciano,%20Antoinette%20Nicole.pdf (last visited on July 23rd, 2015). 48 Lori Mitchell, Judge’s memo asks female lawyers to dress more professionally, NEWS 2 WKRN-TV NASHVILLE, June 13, 2013. 49 Blanck, Rosenthal and Cordell, The Appearance of Justice: Judges' Verbal and Nonverbal Behavior in Criminal Jury Trials, 38 STANFORD LAW REVIEW 89-164 (Nov., 1985) 50 Supra n. 8 at 14
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communicate to the jury, what her opinion is on what the outcome of the case should be. Example: The Role of RemorseRemorse shown by the client/witness is an emotion that is often evaluated in a courtroom setting, by judges and attorneys alike. 51 “Remorse is held to be an appropriate consideration, particularly during the sentencing phase of criminal proceedings.” 52 Remorse is such a complex emotion, capable of having several dimensions and expressions through which it can be conveyed, that often, we face the problem of lack of adeptness on part of the courtroom participants in recognising and evaluating remorse appropriately. Evaluation of the demeanour of a witness is an important part of the analysis of the defendant’s remorse, and in some case, a warning of future criminal liability. 53 While there are instances in which the witness or defendant prefers to let out such cues of remorse, non-verbally, there are cultural factors that may inhibit them from doing so (for e.g, Muslim women seek to wear burqas while giving a statement in court). The use of facial expressions and body language, is a method of sending out messages about one’s identity, opinions on delicate issues, practices of one’s culture, etc. Prohibition of such expression is considered to be violative of the Right of Confrontation, according to the US Judicial System.54 “One such conflict was seen in the U.S in which a civil suit was dismissed in the U.S., because the judge claimed that the veracity of the plaintiff’s testimony could not be determined without seeing her face.”55 Similarly, Justice Kennedy opined in Riggins v Nevada56 (a case in which the defendant’s medicated conditions rendered him unable to show remorse) that “sentencers must attempt to know the heart and mind of the offender”. “Craig Haney, in his study of California capital jurors, reported that one of the major factors in their decision was ‘whether or not the defendant expressed remorse.’”57 Often, a lack of remorse is used as an appropriate justification for a death sentence.58 The New York Times report on Scott Peterson’s murder conviction is one
51
RockshengZhong, MadelonBaranoski, et. al., So you’re Sorry? The Role of Remorse In Criminal Law, available at:http://www.jaapl.org/content/42/1/39.full (last visited July 20th 2015. 52 Id. 53 Susan Bandes, Remorse and Demeanour in the Courtroom: The Consequences of Misinterpretation, 2013, available at: https://www.utexas.edu/law/calendar/ uploads/ Remorsenov5.pdf (last visited on July 22nd 2015) 54 Id at footnote 30 55 Id at footnote 29 56 Riggins v. Nevada, 504 U.S. 127, 143-44 (1992) (Kennedy, J., concurring) 57 Supra n. 46 58 Id.
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such example. - “the prosecution had portrayed his unflinching behavior [at trial] as the cool calculation of a killer.” 59 A limitation of interpretation: In an attempt to succumb to the human desire of trying to establish why a person in sitting/behaving in a particular way, the jury might over-estimate and over-interpret non-verbal behaviour that might either not mean anything, or may have a completely different meaning from what they are attributing it to. For example, if a judge is sitting with his hands across his chest, it need not necessarily mean he is against a particular argument being put forth. It might just be a comfortable position for him while he is sitting on his chair. Similarly, the jury might consider pursed lips, and anxious behaviour on part of the witness to prove guilt and deception. This might not be the case. The witness may in fact be feeling nervous for being called up in court, and such behaviours might be a result of this nervousness, as opposed to trying to hide his/her guilt. 60 Recognising the importance of non-verbal communication, judges often make a conscious effort to insulate themselves from the influence of such communication on their decision-making abilities. For example, while in conversation, Krishnan J., Trivandrum High Court, said that the first thing he does every morning, is, pray to the Lord, to give him the strength to remain firm in a decision based on rationality, rather than let extraneous variables hinder his judgement capabilities.61 III.
EXTENDING MARC GALANTER’S ANALYSIS:
Extending the analysis of Marc Galanter’s “Why The HAVES Come Out Ahead: Speculation On The Limits Of Legal Change” in the field of nonverbal communication Marc Galanter, in his establishes how repeat players (people who are in frequent interaction with the court) are able to take part in the litigation process in a way that plays to their favour, by formulating laws on those cases that will have “adverse precedents and litigating cases that are likely to produce rules that will promote their interests” 62 , as opposed to the limitations faced by one-shotters (who have only “occasional recourse in 59
Deane E. Murphy, Scott Peterson Sentenced to Death for Killing Pregnant Wife, THE NEW YORK TIMES, March 17, 2005. 60 Jurors’ Body Language: Why we look, What to Notice – and What to Ignore, available at: http://www.decisionquest.com/utility/showArticle/?objectID=302 (last visited on July 23rd 2015) 61 Learned from Mr. Krishnan Hariharan, while recounting his experience with the Judge. 62 ShauhinTalesh, How the “Haves” come out ahead in the Twenty First Century, 62 DEPAUL LAW REV. 519 (2012).
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courts”63). Thus what I believe Galanter is trying to portray is, that repeat players, by virtue of their experience as well as expertise due to several interactions with the court, have a sense of familiarity with its procedures and are able to manipulate the litigation process in order to suit their needs, and in the process, limit the means and opportunities for the one-shotters to bring about any social change in the court and its decisions. 64 Keeping this principle in mind, I would like to extend this analysis to the sphere of non-verbal communication in the courtroom. Repeat players have an advantage over one-shotters in more than just the ways in which Galanter has explored the issue. While Galanter says that repeat players have the experience it requires to draft a form and contract, and basically have the “advance intelligence” of the courtroom procedures, this intelligence and experience extends to the ways of non-verbal communication as well. Repeat players are in constant communication with the court. Hence, over the course of their interaction, they are able to pick out certain mannerisms that they have witnessed as influential on the judge’s sense of reason and his/her consequent decision in this regard. Hence, lawyers are able to consciously adopt certain behaviours such as gait/body posture, tone of voice, demeanour, application of courtroom rules, etc., in a way that they have witnessed the judge to favour over the course of their interactions.65 Thus repeat players consciously concentrate more on behaviours that will influence the decision maker in forthcoming cases. By virtue of their experience, they can “discern which rules are likely to penetrate and which are likely to remain merely symbolic commitments… (Repeat players) may be able to concentrate their resources on rule-changes that are likely to make a tangible difference” 66 Non regulars/one-shotters, on the other hand, lack the ability and the expertise to follow the norms and codes of conduct of the courtroom with the same dexterity as the repeat players. Hence, this sets up a barrier for new litigants entering into the field. Due to inexperience and lack of knowledge of how to ‘manipulate’ the judge’s decision by use of non-verbal communication, newer/younger lawyers face more difficulty in establishing a case that gets decided in their favour. Since they are unaware of the regular proceedings of the court, they might be held in ‘contempt of
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Marc Galanter, Why The “Haves” Come Out Ahead: Speculations On The Limits Of Legal Change, 9 LAW SOC. REV. 165–230 (1974) 64 Id. 65 At this point I would like to acknowledge SanyaSamtani for bringing Galanter’s research to my attention. 66 Supra n. 63 at 4
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court’67 and this further ruins their chances of establishing a rapport with the judge and influencing him to rule in their favour. 68 Repeat players pick up these nonverbal cues faster and find it easier to employ in court, as compared to one-shotters. For example, a senior advocate will be able to use the technique of proxemics far better than a new lawyer. 69 Thus, non-verbal communication plays an important role in influencing the decision of the judge. While Galanter’s analysis does apply to several instances of trial proceedings, there are certain limitations to his analysis. 70 However, the discussion of these falls outside the scope of this research paper.
CONCLUSION There are several non-verbal communication techniques such as eye movements, facial expressions, shuffling of feet, restlessness in sitting in a single place for long, posture, playing with fingernails, etc., that are seen in a witness’s behaviour, either when he/she is nervous, or when he/she has been asked to do so by the lawyer in order to portray a biased argument. Similarly, lawyers use several techniques of non-verbal communication such as paralanguage, proxemics, body language that can scare or demean a client, eye contact with the judge, display of confidence, speech fluency, etc., that are consciously employed in order to appear more pervasive to the judge and jurors. The judge also employs techniques like eye contact, facials expressions/frowns, etc. to convey his/her opinion on the case to the jury. It has been seen that these techniques to influence the outcome of the case. Thus, non-verbal communication is an intrinsic aspect of courtroom communication. Even if the courtroom players, like lawyers and judges, are seen as objective figures, the subjectivity that is law, always comes into play. Law being open to interpretations of the implementers necessarily causes disambiguation, especially when extraneous factors such as the presence of NVC come into the picture during such interpretation. The use of language as an important means of communication, in the courtroom, itself brings in the sphere of subjectivity, as seen in all the examples 67
Supra n. 16 at 17 Examples for this principle have been elucidated in themes 1 and 2, such as the influence of race (the study on gaze pattern of a judge), clothing, etc. 69 Proxemics is the personal and cultural spatial needs of man, and this interaction with his environing space. Simply put, proxemics deals with body space and personal distancing. Man learns appropriate social distances as a result of interaction with his culture. Taken from - http://www.stephanpeskin.com/NY-Injury-Resources/Resources-for-Attorneys/NonVerbal-Communication.shtml (last visited, 19:08 10/10/14) 70 Joel Grossman, Stewart Macaulay & Herbert Kritzer, Do the “Haves” Still Come Out Ahead?, 35 LAW SOC. REV. (1999). 68
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explored above. The slightest of change in body language opens up doors for multiple interpretations regarding the same. These interpretations are interpreted differently by different courtroom participants, but in the end, these interpretations find their way into the judicial decision that is being made in court. The influence of non-verbal communication is present in almost every case, and apart from this, other extraneous variables also influence the judge’s decision making 71 . However, the influence of nonverbal communication is deep and pervasive, and, as has been seen in many situations, can often be misconstrued and misinterpreted, thus leading to unjust decisions being made. . Hence, an idealistic solution would be to emphasise on the need to build awareness and teach courtroom participants to recognise these non-verbal techniques used by other participants so that they can deal with such communication in an unbiased way, and learn to discount the influence of these techniques in order to pass a neutral, unbiased and just verdict. Another practical solution would just be creating awareness of the hidden biases that play a role in decision making, which defeat the concept of neutrality of the law. Once the awareness reaches the decision maker, a conscious effort can be made to subvert such influences in the best way possible, in order to achieve the just objective of law. This aspect of communication and language intersecting in the legal sphere is a very vast and interesting topic for discussion and debate, and presents a lot of scope for further research and deliberation on the same.
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For example - “The number of previous incarcerations of the prisoner, the gravity of the crime committed, the time already served in prison, the availability of a rehabilitation program in the location to which the prisoner would be released, and the age, gender, religion and nationality of the prisoner. But overwhelmingly and incredibly, the most powerful and significant factor affecting which prisoners were granted parole and which were sent back to prison was simply the length of time that the judge had spent judging since their last meal break.” Taken from - http://www.abc.net.au/science/ articles/ 2012/09/11/3587076.htm (last visited 19:15, 10/10/14)
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