By Dr. Ken Broda Bahm:
When it comes to witness testimony, “rehearsal” is a dirty word. The term connotes that the witness is learning testimony by rote and has been spoon-fed by their attorneys. Liars rehearse their stories, the perception goes, while honest witnesses simply tell the truth.
When it comes to attorney preparation,”rehearsal” is often a luxury that busy lawyers don’t have time for. Yes, it would be better if the oral argument, the opening statement, or the closing argument benefitted from a sustained rehearsal, but there are often a thousand things that need to be done instead.
And when it comes to juries, we aren’t used to thinking of “rehearsal” at all. Jurors’ role is to absorb all of that information as it is presented in court, then retain the information in fresh condition up until the conclusion of evidence and closing arguments, and then disgorge it all during deliberations. Based on these assumptions of the passive and receptive juror, the act of reviewing and rehearsing that information shouldn’t be necessary.
But in all three contexts, the mental and practical process of rehearsal plays an important role. Active practice doesn’t necessarily make perfect, but based on some recent research, it does dramatically aid our ability to retain and to use new information. That means that witnesses shouldn’t just passively learn about testimony, they should practice it. Attorneys shouldn’t just prepare their presentations, they should practice them. And jurors shouldn’t be expected to be passive receptacles, but should instead be allowed to rehearse and review what they learn. This post will look at the recent studies and discuss implications for all three parties.
New Research: The Benefits of Rehearsal
A recent Psyblog post reports on a study (Bird et al., 2015) finding that just 40 seconds of rehearsal on a specific memory ends up being the key to permanent recall of that item. Dr. Chris Bird and his team asked study participants to review a number of YouTube clips, then had a portion engage in no rehearsal, while another portion went over the events they had just seen either mentally or verbally for 40 seconds. Two weeks later, those who did not rehearse had largely forgotten the information, while those who did rehearse were far more likely to remember. While it is no surprise that rehearsal carries benefits, the greater finding was that such a small amount of practice could end up making the difference. Dr. Bird also found that it did not matter whether that rehearsal was mental or verbal.
In contrast, ScienceDaily reports on another recent study that finds that it does matter whether that rehearsal is communicated or not. That study (Lafleur & Boucher, 2015) found that when rehearsals were presented to another person, retention of the information was significantly better. Research participants were given the task of memorizing words and practiced under four conditions: 1) repeating in their heads; 2) repeating silently while moving their lips; 3) repeating aloud while looking at a screen, and 4) repeating aloud to another person. The clear winner was the fourth condition: Repeating to another person framed the information as communicative activity and not just mental activity, and that made it more memorable. According to one of the authors, Professor Victor Boucher of the University of Montreal, “We knew that repeating aloud was good for memory, but this is the first study to show that if it is done in a context of communication, the effect is greater in terms of information recall.”
Witness Rehearsal
Witnesses, yes even honest ones, need to rehearse their testimony. It is time to give up on the notion that it is helpful to meet with witnesses to just talk about the issues and convey lists of “Do’s” and “Don’t’s.” Hours spent discussing the case with a witness, as you would with another attorney, are often fruitless. What works is practice. Even if you want to avoid words like “practice” or “rehearsal,” due to their connotations, the bottom line is that witnesses need the experience of hearing the likely questions and trying out their own answers. On that score, it is also time to distinguish between rehearsal and woodshedding: The latter means telling the witness what to say (which is ineffective and unethical). Honest rehearsal, on the other hand, is just the process of building familiarity and fluidity with the testimony, making the best of the witness’s own words by supplying feedback from counsel and often a consultant as well.
Attorney Rehearsal
Some attorneys feel prepared for an opening statement when they simply have a good understanding of the story of their case. More feel prepared when they have a good set of notes. None, however, should feel fully prepared until they have had a chance to stand up and talk through their opening statement at least a few times. In the latter study discussed above, Dr. Boucher found that repeating information in one’s head without speaking or gesturing was the least effective way to learn information for later recall. Your themes, language, and story will be much better if you take the time to present on your feet. Given that practice in front of other people seems to convey a unique advantage, it will also help if your practice room isn’t empty. Bring in co-counsel, consultants, associates, secretaries, or even the trial technology guy to hear the presentation. You also might even get useful feedback in the process.
Juror Rehearsal
While the research results speak generally to the benefits of rehearsal, at the level of methodology, the study designs are most comparable to a juror’s role: receiving what seems like disconnected bits of information and then being tested on whether you are able to remember and use that information some time later. What should be very striking from these results is that retention is unlikely without rehearsal in some form. To the extent that review and rehearsal are essential to retention, these results should inform the debate on whether jurors should be able to discuss the case prior to deliberation. Enabling those discussions can carry the risk of a premature consensus. But looking at the goal of comprehension, allowing some discussion should dramatically improve the jurors’ ability to remember and process the facts of the case as they hear them.
Whenever something is important we tend to rehearse it: Think of fire drills, and these days, “active-shooter” drills. The goal is to make the information natural and routine. Another goal of rehearsal, though, is self-persuasion. The more we practice, the more we feel we are ready.
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Other Posts on Practice:
- Practice Mentally
- Keep Your Witness Out of the Woodshed
- Practice the Pivot in Oral Voir Dire (Part One): The Basic Model
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Bird, C. M., Keidel, J. L., Ing, L. P., Horner, A. J., & Burgess, N. (2015). Consolidation of Complex Events via Reinstatement in Posterior Cingulate Cortex. The Journal of Neuroscience, 35(43), 14426-14434.
Lafleur, A.; Boucher, V.J. (2015). The ecology of self-monitoring effects on memory of verbal productions: Does speaking to someone make a difference? Consciousness and Cognition, 2015; 36: 139 DOI: 10.1016/j.concog.2015.06.015
Image credit: 123rf.com, used under license