The Eyes Have It: Nonverbal Communication in Court

“When the eyes say one thing, and the tongue another, a practical man relies on the language of the first.”
—Ralph Waldo Emerson, The Conduct of Life (1860)

Silence was the topic for my last column. I have also written about word choice. It is the morning after the vice-presidential debate. I am reading yet another column about non-verbal communication. It’s time to write about it.

The first presidential debate between John F. Kennedy Jr. and Richard M. Nixon was held on September 26, 1960. It was the first televised debate between candidates for president. Many articles were written saying that those who watched the debate on television felt Kennedy had won, but those who heard it on the radio thought Nixon the winner.

The pundits and scholars said this was due to non-verbal communication. On television Nixon appeared sweaty and wiped his face. He was pale and his looking at the clock made him appear shifty-eyed. Kennedy came across as calm, cool, and collected.

Forty-four years later, political pundits are commenting on similar non-verbal issues. President Biden’s expressions, or lack thereof, in his poor debate performance were fodder for the postmortem debate commentary. Many column inches were devoted to the facial expressions during the two debates of the four remaining candidates. Social media commentators claimed that J.D. Vance made a “Jim Halpert” face during the vice-presidential debate.

This intense focus on non-verbal communication brings me to tips for the courtroom to make sure the visual matches the verbal.

Jury Selection

We pull citizens from their homes where the day before they were mowing lawns and paying bills. They arrive as strangers to each other and are then asked questions about themselves and their attitudes in front of people they do not know. It can be very intimidating.

I believe standing up while questioning jurors shows them that you are not going to hide behind counsel table writing notes about them. You use open hand gestures that show you have nothing to hide. You’re closer to them so your eye contact is much better. Yes, make a note at the table when you need to, but try to stay on your feet.

My best example of what not to do comes from the criminal court. Prosecutors who try case after case can sometimes get lazy with jury selection. One prosecutor I know did the “Barcalounger approach” to jury selection. He was almost supine. His feet were on the rail beneath the table, and he leaned back as far as the chair would allow. The non-verbal message: “This case is so easy that I can do it lying down.” His body language did not serve him well.

Your Client

All attorneys want their client at their best in terms of both sight and sound. During law school, I clerked at a firm. The firm represented a young man charged with a violent crime. The attorney told his parents that he needed to wear a jacket and tie to court. He cautioned them that it should be conservative, but not a three-piece pinstripe à la Savile Row. The attorney did not address accessories.

The day of trial he and his parents walked in. He had a belt. A new belt. The belt buckle was the largest I had ever seen. The design was of a Colt .45 pistol. He did wear a tie. It was appropriate. He also had on a tie clip. It was in the shape of a lever-action Winchester rifle. We got him another belt. The tie clip remained at the office.

With jury selection, your client has a right to be involved. As a judge, I gave the attorneys the gift of exercising their challenges outside the presence of the venire. As a trial attorney, if forced to exercise challenges in open court, I gave my client a piece of paper. If they put a juror’s number down on the paper, I would excuse that person, but it had better be for a good reason. Why this procedure?

I had little control over how loud my client might whisper. I certainly had no control over my client’s facial expressions as he or she tried to whisper to me who they wanted me to excuse while staring at them or, even worse, pointing.

Finally, a word about water. If the jurors in the box do not have water, I do not want to be sitting there enjoying a nice, cool, refreshing glass of water. I was concerned that one lip smack after a drink in a hot, stuffy courtroom might just tip the scales in a close case.

I had water just in case my client needed it on the stand, but otherwise we would wait until the break. Judges who install cup holders for jurors do everyone a real favor.

Sidebars

Sidebars are one of our most despised practices we inflict on jurors. Inevitably, “Objection, may we approach?” results in sighs, eye rolls, and head shaking from the jurors. While the judge might have a white noise machine or the attorneys are good at furtive whispering, the judge does not tell the jury to close their eyes.

They watch. They have nothing better to do. Nothing escapes the 12 pairs of eyes as they try to discern who is winning or losing based on posture, gestures, and facial expressions. Judges who ban sidebars and take up issues during breaks are doing trial lawyers a real favor.

Clients and Witnesses

I call it the “Jekyll and Hyde” phenomenon. On direct the witness’s countenance is open, forthcoming, eager to please. But cross arrives and the facial expression and body language change. Arms are crossed, eyebrows are knitted, and scowls surface. Eye contact with the questioner flies out the window. They look to the attorney who called them to the stand desperately seeking some hint as to how to answer based on facial expression.

It can be devastating to a case should a judge admonish the witness or the attorney for this facial “coaching.” Jurors are smart. They know the purpose of cross-examination and will give the benefit of the doubt to some change in demeanor. However, great swings in non-verbal cues harm credibility.

A Final Anecdote

I once tried a jury case in a very small county. Where I was from had not come up during the trial. As the jurors filed out, I said to a couple of them that I really appreciated how I was treated by everyone. You see, I was from the “big city,” about an hour’s drive away.

One remarked, “Oh, we all knew you were from out of town.” Dumbfounded, I asked how. She responded, “You wore the same shoes every day.”

They pay attention to everything.

What she did not know is that I tended to wear the same shoes every day in the “big city.”