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New Hampshire Jury Trials: How COVID Should Bring About a Constructive Change

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Witness Stand

Standing trial in England in the 1700’s meant literally standing at a fixed location in the court room. Witnesses also stood, but that eventually changed and witnesses were seated, in what could have been generally described as a captain’s chair on a raised stand.

In fact, the internet has some great pictures of historic Virginia and British court rooms where the witness chair is on top of a one or two step raised box. So what changed?

The witness chair changed in the early 1880’s with the advent of the Victoria Era concern of modesty for women’s legs and ankles. Thus, the enclosed boxes that we are all familiar with in New Hampshire courts usually allow only the head and neck of the witness to be visible.

The major problem with this box is that experts say that non-verbal communication dominates verbal communication for impact and that it is important to see all of the squirming, fidgeting, etc. that a witness will do unknowingly because it is not usually the words used but the body language that speaks the loudest to a juror.

Dr. Albert Mehrabian pioneered studies in the 1960’s into nonverbal communication. Today most experts agree that 70% or more of all communication is nonverbal.

What comes out of your mouth and what you communicate with your body language may be two totally different things. When there is a disconnect the listener or juror has to choose between the verbal or the non-verbal message. Studies show jurors generally choose the non-verbal message as the more accurate and honest.

Several years ago when she was still a Superior Court judge, Justice Carol Ann Conboy moved witnesses in Hillsborough County Superior Court to a chair in front of the jury box. This is the same arrangement that I first saw in Virginia City, Nevada’s court house (built in 1876, just before the Victorian Era) where a simple captain’s chair shows far more of the witness than you could ever observe from the enclosures we are used to today.

With the COVID pandemic causing reconfiguration of court rooms it is much easier to let the jury have social distancing in the gallery seats and move counsel tables to facing each other with the witness chair (literally a chair) facing the jury. The Superior Court should remove the box so more body language can be observed as this is the most accurate “tell” of whether the words coming out of the mouth are matched by the body’s response.

If it works for card players it will for judges and jurors.

If you have a legal matter and need an experienced trial lawyer, please call Douglas, Leonard & Garvey, P.C. at (603) 288-1403 to speak to one of our attorneys or fill out our online contact form.