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Exposing Nonverbal Lies on Cross-Examination

Posted by attorney Edward Hopkins

The average juror interprets certain nonverbal cues as signals a witness is attempting to deceive the court. These nonverbal cues may or may not indicate the witness’s actual attempt to deceive. Indeed, scientific evidence suggests that the average juror would not consistently detect a witness’s deception based solely on the witness’s nonverbal cues. But, in trial courts, whether or not a juror accurately detects a deceptive adverse witness is lying is arguably less important to the trial lawyer and his client’s case than whether or not a juror believes a deceptive adverse witness is lying.

Discrediting an adverse witness is a common objective of cross-examination. A witness, along with his disputed testimony, will lose credibility if jurors believe the witness has lied under oath. Impeachment procedures, many of which are governed by Federal Rules of Evidence Article VI, are some of the tools a competent trial lawyer may use to discredit a witness. Through impeachment, a witness can be forced to either verbally lie or verbally give a prejudicial answer that is consistent with the witness’s prior statements, another witness’s prior statements, documents, or other forms of evidence.

But there will be times when neither impeachment procedures nor logical arguments may be used to force a deceptive adverse witness to make a prejudicial statement. When this happens, a trial lawyer may still be able to reveal the witness's deceptive mannerisms or behaviors. After all, Roland Barthes, French philosopher and literary critic, once wrote: “I can do everything with my language, but not with my body. What I hide by language my body utters."

Unfortunately, some deceptive adverse witnesses will be well-coached or very talented deceivers. Attorneys or parties will have worked with them and instructed them to answer questions on cross-examination no differently, nonverbally, than they will have answered them on direct-examination. Some witnesses will be practiced in the art of mimicking nonverbal cues commonly associated with honesty even while they lie.

Parties in civil cases and witnesses closely aligned with these parties—parents, siblings, spouses, friends, or business partners—could be well-coached. Their verbal and nonverbal communication could be well-rehearsed. Some might attempt to deceive the court to help themselves, others to help their friends, or their family members. These witnesses might not reveal their lies through nonverbal cues unless prompted on cross-examination.

There are three ways to deal with well-coached or very talented deceivers in this scenario. (1) Ask the deceptive adverse witness nothing, limiting the damage caused to whatever the adverse witness said during direct-examination. (2) Despite the low probability of success, try to match wits with the witness, hoping he will make a mistake and open himself up to an impeachment or a logically unavoidable prejudicial statement, or (3) try to draw-out the witness’s nonverbal lies and expose them to jurors.

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