I recently visited one of the Meow Wolf locations, and my feelings about the immersive art installation tracked with the typical reactions: As vivid as the pictures are, they still don’t do it justice, and you have to be there. This idea that in-person experience is always going to be better than a visual record also applies to many other live events, and the easy availability of video of our favorite teams and favorite musical artists has not dimmed our appetite for expensive tickets to the live in-person events. That is because we believe, at least, that we are getting a richer experience in person, and the 3-D is always going to exceed the 2-D.
Chances are strong that this live preference still applies to in-person versus video-conferenced testimony in court. People believe they can assess honesty and emotional content better in person, and whether that belief is true or not, the perception is what drives the reaction. That means that for the time being, in-person testimony is still going to have an advantage. Recent research in a courtroom context (Wilkman, 2022) backs that up.
The Research: A Perceived (And Therefore Real) Advantage for Live Testimony
The study I recently came across may be limited in its application — it focuses on 47 judges in Finland — but I believe that it speaks to some basic human communication habits that are likely to be replicated in other studies. Based on the self-report of these judges, the ones who felt body language was relevant to assessing witnesses also found it easier to assess a live witness. Legal principles codified in rulings of Finnish Supreme Court indicate that “body language and emotional expressions should not matter when assessing probative value.” Despite this, the nonverbal elements still do matter, with three-quarters of the judges responding that it should carry some weight. And those who feel it should have some weight are also likely to prefer in-person testimony for assessing those communication qualities.
This, of course, is at odds with the available research. The study cites a number of studies and meta-analyses of studies showing that, although we believe that non-verbal cues (i.e., nervousness or gaze aversion) should detract from credibility, the science continues to show that our abilities to detect deception via non-verbal cues hover around coin-flip levels. Even with systematic training on “reading” these non-verbals, it appears that what improves is confidence in making assessments, not accuracy of assessments.
This creates what the author calls a science/practice gap. “District judges reported assigning more probative value to body language and emotional expressions than legal psychology research and Finnish Supreme Court rulings would call for.” A comprehensive review of the available data fails to find a scenario where live viewing should have an advantage over video-conferenced testimony, and the evidence points toward the conclusion that the presentation mode of live or video should not matter at all.
Yet it does still matter, because we believe it matters.
The Implications: The Self-Fulfilling Prophesy Still Favors Live Testimony
One implication is that judges and other finders of fact still need to be educated. It isn’t enough to codify legal principles on what should and shouldn’t matter in assessing credibility because we also have to contend with human nature. So part of the imperative is to continue to study and continue to educate on what it means to reasonably assess credibility and probative value.
For the litigator deciding whether to offer testimony in a live or a remote fashion, however, the immediate implication is more down to earth: Live testimony still has an advantage. It appeals to the folk-wisdom that we all carry, and the feeling that we are getting a richer experience when it is live. The author explains, “The presentation and message may be more vivid and easier to understand when told live, because we also use body language, tone, and the likes in communicating our message. They may not be important indicators of deception, but they are still important in communication and making ourselves understood as well as influencing each other.” So, for now at least, if you have a choice and if the testimony is important, you should lean toward offering it live.