Source of article The Sound Jury Library.
By Jill D. Schmid, Ph.D.
The other day I was watching FBI Director Comey’s testimony to Congress regarding the FBI’s Clinton email investigation and findings. It began as a test of my mental fortitude, but I found that I enjoyed watching how Comey handled the questions and delivered his responses. In particular, I admired the way he kept his composure while still being strong and, when necessary, a bit indignant.
Comey wasn’t angry or rude. Instead, when needed, he used righteous indignation. A good example of this came when Comey was being “asked questions” by Florida Representative John Mica. Towards the end of the allotted five minutes, Comey had had enough of the insinuations and thinly veiled attacks on his investigation and conclusions. He sat up a bit straighter, talked a bit louder and clearer, and he stated, “I hope what you’ll tell the folks in the café is ‘look me in the eye and listen to what I’m about to say. I did not coordinate that with anyone. The White House. The Department of Justice. Nobody outside the FBI family had any idea what I was about to say. I say that under oath. I stand by that….’” He ends by saying, “I want to make sure I was definitive about that.” You can watch his testimony here.
Witness’s will sometimes ask, “Can I get angry?” The short answer is “no.” The longer answer is that you can use “righteous indignation” if need be. What’s the difference? Angry witnesses lash out for all the wrong reasons in all the wrong ways. Anger sends a message of being “out of control.” Jurors can see angry witnesses as having something to hide – it calls to mind Shakespeare’s, “The lady doth protest too much…” Anger can serve no purpose or anger can alter the true purpose.
I try not to quote Aristotle too often, but sometimes it’s necessary as no one else has mastered the art of persuasion and rhetoric quite like him. He wrote: “Anybody can become angry – that is easy, but to be angry with the right person and to the right degree and at the right time and for the right purpose, and in the right way – that is not within everybody’s power and is not easy.”
Aristotle was hinting at the “need be.” Those “need be” times include:
1. When your character is questioned, directly or indirectly.
2. When your motive is questioned, directly or indirectly.
3. When your work is questioned, directly or indirectly.
Back to the Comey example. As I was listening to the first few minutes of the Mica/Comey exchange, I was a bit frustrated that Comey wasn’t more directly challenging some of the assumptions Rep. Mica was making. I thought he needed to be stronger and more direct. From the above list, Mica’s line of questioning included attacks on all three of those areas. He was questioning Comey’s character – that he might “lie” or “hide something”; that he might do this to “gain political favor” or because of “political pressure”; and that his work was sloppy or incomplete. These were all moments that called for righteous indignation. Without a direct and forceful response, one starts to wonder if there just might be something to the accusation. That’s why, when Comey finished with the statement detailed earlier, it felt so right. He was standing up for himself and the work he did. In that moment, you not only saw and heard the conviction, you felt it.
Witnesses need to know that they can and should correct the questioner when needed, and/or they should make a short statement during certain lines of questioning. Answering certain types of questions too meekly or letting negative insinuations go unchallenged sends unfavorable messages to jurors. Jurors put themselves in that situation and think, “Geez, if someone was treating me like that…” or “If someone was accusing me of that…” “I’d tell him where to go!” Being “too calm” when taking character shot after character shot, diminishes jurors desire to fight for you. If the witness is not willing to fight for himself, why should the juror?
In the earlier Aristotle quote, he also addressed the difficulty of being “rightly” angry. This is why practice is so important. Witnesses need to practice when and how to fight (rightly use their anger) because it’s a delicate balance between being respectful and non-defensive and being confidently aggressive. It’s an attitude of righteous indignation, not of angry bully, and it is only called for in those “need be” cases cited earlier. Have your witness practice squaring up their shoulders, using a strong, assertive voice (with just a hint of steeliness) to pointedly say, “I want to be very clear – I would never….” Or “That is absolutely not what happened.” Or “I am proud of the work I did…” Or “You’re insinuating something that is completely untrue. I …”
You must make sure your witnesses have practiced what it feels like, looks like, and sounds like to “rightfully” stand up for him or herself. They must understand the harm that comes from letting their anger generally (i.e., anger with the process, opposing counsel, the judge, the money this is costing, the “unfairness” of the claims, etc.) affect their testimony. Angry witnesses do not move jurors, but pushovers do not either.