Theater, Going to
I tell clients that a trial is part perception management. We each have our roles. We are the defense military defense counsel, the judge is the director, the members (jury) are the audience, and witnesses all have their bit parts to play.
We give clients Rules of Engagement for conduct in and out of the courtroom. Military Members (the jury) and the judge are "hard-wired" to look for signs of professionalism in an accused and will sometimes hold it against the accused if they do not see appropriate behavior or demeanor. Just some of our rules include,
- Sit up straight. Show professional interest in what is going on.
- Take notes.
- Be polite to everyone.
- Don't stare but give eye contact, especially to the members. If they see you are not looking at them or avoiding looking at them they will interpret this as some sign of guilt.
- Don't react when a witness says something outrageous or untrue. Leave that to us.
- Give the courtesies of the day even to court-martial members you accidentally meet in the hallway or at the Exchange.
- You should always say "Sir" or "Ma'am" or "Your Honor" or "Judge" when talking to the judge. If you are testifying the same rule applies--even to the prosecutor. Members and the judge watch for this and, again, may take that as disrespect or something adverse.
If I must paraphrase Shakespeare from his play "As You Like It," I'd say that every courtroom is a stage and we the players.
Why actually is it important to consider how you act on the stage.
Consider: Laurie L. Levenson, Courtroom Demeanor: The Theater of the Courtroom. Legal Studies paper No. 2007-30 July 2007, at 27. The article focuses on the impact of a defendant’s appearance and demeanor on jurors, and perhaps also the judge. People believe, rightly or wrongly, that how you act or how you say something indicates truthfulness, mendacity, or a consciousness of guilt. Professor Levenson's article should put doubt in your mind about the value of demeanor.
- Court-martial members will study the accused's and witnesses. They want to judge the person demeanor and how they talk and act.
- Part of winning your case is how you appear to the members. As civilian military defense counsel, we will help you work on presentation.
- Presentation is particularly important if you should testify. We want the members to listen to you not just watch you and how you are acting.
- I did a court-martial some years ago where the members told us afterwards that they spent a lot of time examining and talking about the prosecutors gig-line not being straight. At the time the prosecutor was doing closing argument to persuade the members the client was guilty. The members were watching him, not listening.
Some other discussions can be found in:
Lawson Hennick, Was it something I said? Non-verbal cues in court. Ontario Trial Lawyers Assoc., 2 March 2017.
J. L. Hoffman and A. Weiner, The Juror as Audience: The Impact of Non-Verbal Communication at Trial. 32(3) OREGON ST. BAR 1 (2013).
This paper can be downloaded without charge from the Social Science Research Network (SSRN) electronic library at: http://ssrn.com/abstract=999471.
There is a lot of bad information floating around on how you can tell someone is lying by they body language, work choice, and such. even though much of the information is faulty or not objectively supported, the uninformed still believe it. So we as your military defense counsel will help you play your part.