There is quiet in the courtroom after the key witness on the stand is asked the critical question. As the jury, judge, and counsel wait for the answer, the witness pauses, looks up toward the ceiling, then looks back down, and answers.
That scenario invites two questions. One, why look up? The person asking you the question is at the lectern in front of you. The target for your answer is in the jury box to your side. Nothing – certainly not the answer – is on the ceiling. And two, what do the jurors make of that? Is it simply a thoughtful hesitation, a moment to collect your memories, or is it a sign of something worse?
That shift of gaze, looking up or away while thinking, is a small gesture, but it is common enough that it merits mention when considering witness communication. It turns out that there is a pretty good reason why we do it, along with a pretty good reason why we ought to be wary about doing it while testifying. In this post, I will look at some interesting new research on the question of why we tend to look up or away while recalling, and also share some old but persistent perceptions on how that is interpreted.
Why Look Up When Recalling?
The answer comes down to the conservation of cognitive resources. It turns out that we depend on visual processing when recalling some kinds of information. For that reason, we unconsciously want to “rest” our current visual processing by looking at something flat, inactive, and uninteresting, like a wall or a ceiling for example. That makes it easier to use the brain’s visual centers for recall rather than for active processing.
This explanation was tested in recent research (Emiston & Lupyan, 2017) showing that disruptions to visual processing do indeed make it harder to recall visual information. Gary Lupyan and Pierce Edmiston of the University of Wisconsin, Madison's psychology program conducted the study, also covered in this ScienceDaily release. They asked volunteers questions that required them to quickly verify information while watching a screen. Some questions asked for visual recall (“Do alligators have tails?” “Do tables have flat surfaces?”) and others asked for more categorical recall (“Do alligators live in swamps?” “Are tables furniture?”). As the participants recalled the information, the researchers would deliver a burst of visual interference, described as a “colorful static noise,” to the screen they were monitoring. What they found is that the visual interference caused participants to take longer with the visual recall. "Visual interference selectively interrupted their ability to answer questions about the visual properties of objects. They had trouble trying to recall that kind of information," Edmiston says. "But it didn't change how good they were at accessing what they knew about the nonvisual properties of the same objects."
What that means is that, even after learning visual information, we continue to depend on visual perception in order to recall that information. So memory doesn’t work by just taking in an image and converting it to data for later use. Instead, we still need to “see” it in our minds’ eye in order to recall it. That explains the practical habit of wanting to look away in order to recall. Gary Lupyan explains, "Many people, when they try to remember what someone or something looks like, stare off into space or onto a blank wall. These results provide a hint of why we might do this: By minimizing irrelevant visual information, we free our perceptual system to help us remember."
But What Do Jurors Make of It?
I recall one juror at a mock trial telling me confidently that one particular witness was not to be believed. Why? Because the witness looked up and to the right, and this witness had read that looking up and to the rightmeans the witness is lying. I had another juror tell me with equal confidence, that the problem is looking up and to the left. Turns out the first juror is recalling it correctly, but there really isn’t any truth behind it. As I've discussed in a previous post, the idea is most often attributed to a once-popular psychological approach called "Neuro-Linquistic Programming" or NLP, but studies (e.g., Wiseman et al., 2012) have shown liars are not more likely than non-liars to look up or in any particular direction, and individuals trained in spotting that eye movement do not fare any better than chance when it comes to detecting deception
Whether false or not, however, the message has gotten out, and there is always the risk of having one or more amateur face readers on your jury. For those jurors, a witness who is simply trying to be careful or thorough ends up signaling dishonesty or a lack of confidence.
So What Should Witnesses Do About It?
In trial or deposition, attention to small factors can make a big difference, and one of those factors is gaze. I see three implications.
Assume Jurors Will Misinterpret
This is another example of that which is normal and understandable in conventional situations ending up being risky in the crucible of heightened attention that accompanies testimony. Even if shifting one’s visual gaze is understandable and even beneficial to accurate recall, jurors are unlikely to see it that way. In interpersonal contexts, we still tend to equate steady eye contact with confidence and shifty or averted eye contact with dishonesty.
So Handle Your True Recall During the Preparation Session
The typical witness will need to provide some answers that aren’t fully recalled at the time the question is asked. But well-prepared witnesses will have been asked that question in advance of trial or the deposition. They would have been asked during the preparation session. When it is just you, your attorney, and maybe your trial consultant, there is no harm to looking up or doing whatever else you need to do in order to recall the best answer. And once that answer has been practiced, it should be easy to recall without the need for any hesitation or gaze-shifting.
And Keep Your Focus on Target During Testimony
As we have written before, audiences value eye contact. Even when the target audience isn’t physically present, as in the case of a video-recorded deposition, that audience can still tell whether a witness is looking at their questioner or whether they are looking elsewhere. So during depositions, keep a consistent focus on the questioner, and during trial, keep a consistent focus on the jury.