Judicial Body Language Can Speak to Juries

By JIM KLAHN Associated Press Writer

SEATTLE (AP) -- Unlike Justice, the blindfolded lady weighing the evidence on her scale, courtroom participants have to consider more than what they hear.

What they see, especially when they see a judge doing it, also makes an impression on jurors and others in courtrooms, says anthropologist David B. Givens.

A judge who turns his back, frowns and purses his lips when a defendant is testifying -- then faces the prosecutor openly, lifts his eyebrows and uses his hands to help conversation -may appear to favor the prosecutor over the accused, said Givens.

"If a judge's opinion is clear, people will try to follow her lead," said Givens, a University of Washington communications consultant. "If her opinion is clear non-verbally, the same things happen."

Most judges, he said, work hard at an appearance of impartiality, and the non-verbal signals they impart are unknown to the jurists themselves.

Givens, commissioned by the Washington State Administrator for the Courts to study the impact of judicial mannerisms in the courtroom, said that in the course of his work, he videotaped a judge whose style was forbidding and formal.

"He used an evangelistic, sermonizing voice to reinforce dominance over those in court. Conversational speaking gestures were absent," said Givens in an article written for the Judge's Journal quarterly.

The judge held himself stiffly erect, appearing anxious, "and his tone of voice accented a holier-than-thou orientation."

The judge, said Givens, admitted to liking his work less and less and felt "people just don't like judges."

Givens showed the judge the videotape, and discussed the judge's on-the-bench behavior. The judge began adding speaking gestures, nodded his head at appropriate points while listening, used conversational speech instead of sermon language and relaxed his body.

"Results were immediate: defendants were more cooperative, showed better attitudes and, on balance, were easier to handle," wrote Givens. "Equally important, court work once again became pleasant."

The judge said he could easily slip into a more dominant, formal style if anyone took advantage of the new relaxed manner.

Esther Bauman, education officer for the court administration office, said Givens' study was to be used in training programs for judges. She said judges asked for the study "so that they can pick up any kinds of ways in which they can improve their presentations, or of any body language they're not aware of."

Videotaping has also uncovered positive aspects of judges' works, she said. "They (judges) realize they are doing a good job."

Givens said while some judges had formed habits that needed breaking, the judges impressed him with their diligence and efforts at impartiality.

"By and large, my hat is off to them," he said. "I could never be one."

The study of non-verbal communication, or "kinesics," is becoming of greater interest in the scientific community, and its application to courtrooms is relatively new.

Anthony Wartnik, King County Superior Court judge in Seattle, said judges consciously try to maintain a feeling of impartiality "but we're not always aware of our body actions."

Since he has been working with Givens, he said, he has become more aware of his actions.

"I think one thing I tend to do is over-concentrate on notetaking, which results in my back turned somewhat to the witness stand. It's a bit worse because I'm left-handed," said Wartnik.

He said he also has had to learn to hold his reactions in check when confronted with shocking testimony, and maintain a level approach to those in court.

But it doesn't mean the court should be emotionless, he said. "If there is something that is genuinely funny, it doesn't mean you can't laugh. But it's different when you raise your eyebrows (in response to questionable testimony) -- like saying, "Who are you trying to kid?"

Judicial bodies in other states, including California and Michigan, are also using kinesics in training materials for judges. Gordon Zimmerman, a faculty member of the National Judicial College in Reno, Nev., said kinesics is also getting more attention at the college, which serves judges from across the United States.

"We're just now starting to get the raw materials to look at," he said, noting that only recently were videotapes allowed into courtrooms. Many courtrooms remain off-limits to cameras.

He said there was more to kinesics in the courtroom than the judge understanding how his non-verbal communication affects others. Also important, said Zimmerman, was a judge's perception of a person before him -- especially the accused.

He said a judge should be aware of his feelings when confronted by someone he perhaps doesn't understand -- an older, white judge presiding over the trial of a young black man who is strutting and wearing "in" garb, for example.

But Zimmerman cautioned that critics of judges, and judges sitting in judgement of themselves, could go too far in dampening what are natural reactions.

"We each have our own styles and we should recognize them," he said. Likewise, a judge should know and understand his habitual patterns, and be sure his actions do not elicit unintended meanings.

Givens said training and willpower were needed for judges to keep a show of impartiality in force.

"Bias leaks easily in non-verbal behavior because evolution has programmed our feelings to show," he said in the Judge's Journal. He said a judge might even be unkind, as long as the unkindness applies equally to all.

Sometimes the show has a comic aspect. "I recall an episode in appellate court where three judges covered their mouths, leaned backward and averted gaze while listening to the plaintiff's summation, then uncovered mouths, leaned forward, and gazed at the defendant's attorney as he summed," said Givens.

In some cases, indications of bias may appear trifling, said Givens. But perceptive jurors and others still pick up on them, he said. In a small number of cases, he said, judges reacted visibly to nearly everything said in court, and "the personal opinions of these judges were always clear."

Some lawyers, by watching closely, may be able to gear their handling of a case to signals given unwittingly by the judge, said Givens.

With more and more videotaping being done in courtrooms, said Givens, it was conceivable that a case for retrial could be made if a judge's bias appeared to affect a trial's outcome.

He said traditionally "non-verbal things don't stand up in court. Whereas words . . . evidence . . . those things stand up." [1/31/81]

CNS

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