Can I Get a Witness? An Interview with Clint Townson

We first met along the wide hallway at a conference center hotel on the outskirts of Chicago. Clint is a doctoral student at Michigan State University, so I probably started by paying my respects to Tom Izzo, who is one of the greatest college basketball coaches alive today. (Bill Self and Roy Williams are two others, in case you’re wondering.)

I was drawn to Clint’s research poster in no small part because I had a case on my desk about which the attorney told me, “We’re going to have to totally discredit the state trooper in order to win this case. I’m going to have to destroy him on cross-examination.”

Clint’s research focuses on an issue trial consultants and their attorney-clients face in every civil and criminal trial: the credibility of witnesses is judged solely (and almost exclusively) by a jury^[i]. So now, Clint and I meet again for a conversation between an aspiring trial consultant conducting empirical research, and a veteran trial consultant with more than two decades of experience in the field.

Charli: Let’s start with you giving us the elevator pitch for the research you’ve done on how jurors respond to different types of witnesses.

Clint: My primary goal for this research was to compare how different types of witnesses are perceived by jurors, regardless of dress, speaking style, and even substance of what the witness says during testimony. I was curious about how the mere labeling of a witness as a “police officer,” “expert” or “eyewitness” would change assessments of their trustworthiness and knowledge, and ultimately, a juror’s appraisal of the case.

Charli: Where did your idea for the research come from and what were you hoping to discover?

Clint: Well, it was actually the American Society of Trial Consultants’ conference in Las Vegas that pushed me in this direction. I presented some undergraduate research there, and the members of the Society encouraged me to continue work in this area. The idea for this specific study came from looking at some credibility research in other persuasive contexts, and I was curious about which specific type of witness would prove most influential to jurors.

My hunch was that experts are perceived as more knowledgeable than any other witness type, while police are perceived as more trustworthy.

Charli: So tell us how you conducted your experiment.

Clint: I really wanted to isolate the effect of labeling a witness. So I wrote a summary of a hypothetical criminal case, and then designed a two-minute cross-examination between an attorney and a witness on the stand. The cross was designed to be somewhat probative (discussing the defendant’s psychological state after a crime), but very general, so it could reasonably be delivered by any of the three witness types: police, eyewitness and expert.

I then video-taped an actor (dressed in a suit and tie) delivering the testimony in a mock court room (I served as the attorney off-camera).^[ii] When the experiment was administered to participants, they read the summary of the case, and then were given one of three brief introductions to the video that described the witness’ role in the case.

For the first group, he was described as an officer who conducted interviews at the scene (a police witness); for the second group, he was described as a psychologist who had met the defendant shortly after the crime (an expert witness); for the third group, he was described as a cab driver who had given the defendant a ride shortly after the crime (an eyewitness).

After the video played, these mock jurors were asked about their perceptions of the witness’ credibility in terms of trustworthiness and knowledge, and also asked to make a decision about guilt.

Charli: Before you reveal the results of your study, I want to tell you about the case I was working on when we first met and get your reaction, because I think your experimental design would be just as applicable to a civil case fact pattern.

In my case, the defendant company performs roadway maintenance and two employees were each driving slow-moving heavy equipment alongside a two-lane county highway on a clear, dry summer day during a typical busy morning commute. The plaintiff was killed when his motorcycle collided with the vehicle driven by one of the defendant’s employees. Like all roadway accident cases, the jury would first have to agree on how the accident happened before they could reach a unanimous verdict on liability, causation and damages.

The defense on liability depended heavily on showing that an inexperienced trooper – who was not trained or qualified in accident reconstruction – made mistakes in his investigation and reached the wrong conclusion about who was at fault.

The defendant hired an experienced investigator who arrived on the scene within a few hours of the collision to take pictures, to make measurements, and to reach his own conclusions. That investigator was then qualified to testify as an expert witness for the Defense.

Two more pieces of information about witnesses in my case:

1. The only two eyewitnesses to the accident were the defendant employees who were driving the company vehicles. Bystanders – who may have seen how all three drivers were behaving before the collision – did not stop that morning to render aid at the scene or to give statements to police.
2. The plaintiff also hired an accident reconstructionist to testify as an expert at trial. He did not visit the accident scene or inspect any of the vehicles until months after the crash, and he admits in deposition that his opinion relies substantially on the trooper’s measurements, the trooper’s report, and the trooper’s photographs taken on the day of the accident.

To summarize, at trial in the case I was working, there would be:

1. a police witness testifying for the plaintiff;
2. a reconstruction expert witness testifying for the plaintiff;
3. a reconstruction expert witness testifying for the defense; and
4. two eyewitnesses (company employees) testifying for the defense.^[iii]

So, based on your research (and your knowledge of prior research), what would you expect in terms of juror reactions to witnesses in this case?

Clint: Well this could be a fascinating example of some of the findings of my research.

First, the results of my experiment generally showed that the mere identification of a witness as an expert was enough to result in substantial increases in perceived trustworthiness and knowledge, as compared to either the police witness or eyewitness.

Second, the results also showed that there was no significant difference in the perceived trustworthiness of a police witness as compared to the eyewitness, contrary to expectations.

Charli: I’m sorry to interrupt…but I want people to pause on the second finding above. Police officer witnesses were not perceived as more trustworthy than an eyewitness. This – as you write in your paper– is counter-intuitive.^[iv] Now, back to your results…

Clint: Finally, perceived knowledge of the witness (regardless of how he was identified) exerts some influence on verdict decisions among the participants.

Applying these findings to the civil case, I’d say discrediting the state trooper might be only a piece of the puzzle. Instead, the disparity between two opposing expert witnesses might be the crucial factor in the jurors’ minds: if the defense expert is framed as knowledgeable (through an impressive education), and trustworthy (based on appearance, charisma, et cetera), while the plaintiff’s expert is presented as neither of these things (given he is largely relying upon the trooper’s report, rather than an independent investigation), jurors might lean toward the defendant on the basis of expert testimony.

My research would suggest the testimony of these experts would be seen as more credible and more probative than either the trooper’s testimony or the eyewitness’ testimony.

Charli: That’s exactly what we found in our focus group research.

The defense expert, with an impressive resume for accident reconstruction that included some work for law enforcement, also had great presence – what you might call charisma – during his deposition. The mock jurors rated him the most important witness in the case.

It wasn’t a matter of “destroying” the trooper on cross-examination—as you said, that was just a piece of the puzzle. Instead we focused on putting forth an affirmative response that highlighted, through direct examination of the defense expert, why his calculations and conclusions were more credible than the trooper’s.

That said, here’s where I might argue a little with the implications and conclusions you write about in your research regarding the importance of expert witnesses. I’ve long thought we have a problem in civil cases with what I call an expert “arms’ race” – where both sides spend small fortunes on experts because they think jurors are more likely to be persuaded by them, or because they don’t trust lay witnesses to do the best teaching and explaining in the case.

In my experience, though, experts are vulnerable because they have been paid (handsome sums) to testify. I often tell attorneys that opposing experts have a tendency to “cancel each other out” at trial because I frequently hear mock jurors say, “Both sides hired experts to say whatever they wanted experts to say, so we have to take that into consideration.”

I wouldn’t argue that experts are not essential, but I will say that how they deliver their specialized opinion testimony is every bit as important as the substance of what they say. A persuasive witness doesn’t have to be an expert if he or she is the best teacher or the most likable in front of a jury. In fact, I teach witnesses that there are three components of credibility: Knowledge, Trustworthiness and Likability. I wonder how the next phase of research would take that into account. Any ideas?

Clint: There’s definitely some existing work out there discussing the “hired gun effect” of well-compensated expert witnesses (see Cooper & Neuhaus, 2000; Koehler et al., 2016). Those researchers found that this seems to come up most often in very technical testimony, where the expert comes off as a snobby know-it-all and is disliked by jurors. You’re certainly on the right track by pushing these experts to be more like teachers. By making an effort to teach jurors their reasoning process (in language the jurors can understand), the expert may come off as more believable, their compensation becomes less important, and they are seen as more likable (see Brodsky et al., 2009 for more on likability of expert witnesses).

Charli: You’ve written that findings in your research could be “used to study communication/psychology in legal contexts” and also “by trial consultants in witness preparation.” I agree and I actually think there are even more practical applications of research on juror perceptions of witnesses.

Clint: Like what?

Charli: Even in the early stages of consulting, what we know about how jurors perceive witnesses in general can have a profound effect on our plans for measuring those perceptions in research. Once we have feedback from focus groups, we can then develop strategies for how we’ll order our witnesses at trial; how they will (or will not) be featured in opening statement; which questions they should be asked on direct or cross-examination; how witnesses should relate to one another; whether we even want to present them at trial (if we have that choice) and how (by video or live); and what exhibits will best illustrate the testimony of each witness.

We really can’t overstate the importance of witnesses and jurors’ perceptions of them. Lawyers do a lot of talking, but every bit of the actual evidence received by a jury at trial comes in through the testimony of witnesses. Even our exhibits cannot be admitted into evidence except through a witness.

And – by all means – yes, we do use empirical and case-specific research for preparing our witnesses to testify in depositions and trials, but sometimes we are developing strategies for our use or cross-examination of opposing witnesses (who we obviously do not get to prepare).

Clint: You make it sound like there’s a lot of exciting work for me to do if I pursue trial consulting as a career.

Charli: There is and we’d be glad to have you join us. Thanks for letting me interview you, Clint, and thanks for adding great research to the field.

Clint: It was an absolute pleasure. I think these conversations and collaboration between practicing trial consultants and graduate researchers elevates both academic research and the real case work.

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Charlotte (Charli) Morris has a Master’s degree in Litigation Science from the University of Kansas (Rock Chalk Jayhawks) and she has been working with attorneys and witnesses since 1993. She can be reached directly by sending an email to [email protected].

Clint Townson is a doctoral student in communication at Michigan State University, working with Dr. Frank Boster on various persuasion projects, including some involving communication and the law. He completed the above project as part of his Master’s thesis at the University of Delaware with Dr. Paul Brewer. He welcomes all correspondence at [email protected].

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