Judges' Nonverbal Behavior

Early studies by Martin Orne on demand effects and Robert Rosenthal on experimenter expectancy effects established the impact of a sender's nonverbal communication and the way in which it might alter the behavior of others. In the courtroom, judges'nonverbal behavior (e.g., tone of voice, demeanor) often communicates their expectations (sometimes termed leakage) about the case at hand. Jurors, for instance, may interpret a judge's nonverbal cues as evaluations of evidence, attorneys, and parties. In some circumstances, these inferences may become information that affects jurors' decisions, in ways not recorded in the trial record. One meta-analysis of studies examining the impact of trial judges' nonverbal behavior on juror verdicts found a significant and nontrivial relationship (r = .14). Therefore, depending on the nature and extent of the nonverbal cues, the due process rights of defendants (that is trial fairness) may be impacted.

Research examining judges'nonverbal behavior has found four distinct “global” styles (general behavior that governs interactions that may be verbal or nonverbal): judicial, directive, confident, and warm. These [Page 389]global styles were found in content-present and content-absent channels. Judges high in the “judicial” style are viewed as concerned with fairness and propriety; conversely, the “directive” style is seen as managerial and task oriented. Judges high in the “confidence” style are seen as comfortable and patient, and judges themselves have noted that patience is an important quality that helps avoid tyranny in the courtroom. Finally, judges high in “warmth” are seen as supportive and accepting of other trial participants.

The impact of these global styles reaches beyond the abstract perceptions that jurors may have of trial judges. They also predict the “micro”-level, nonverbal behaviors (e.g., eye contact and body posture) that jurors perceive and use as information regarding judges' perceptions of the trial, trial participants, and evidence. These perceptions, in turn, may affect jurors' own perceptions of the trial, trial participants, and evidence and thereby influence their decision making.

Studies using field-based, quasi-experimental, and experimental methodologies have demonstrated that trial judges form expectations about likely jury verdicts that are related to characteristics of the case, the parties, and the jury. Judges are more likely to expect jury verdicts of guilt when the defendant has a more serious criminal history or is of lower socioeconomic status. Jury characteristics also influence judicial expectations. Judges are more likely to expect that the jury will return a guilty verdict on the first count of indictment (a higher charge) when jurors are more educated and a guilty verdict on the second count of indictment when jurors are younger. Moreover, the nonverbal behavior of judges (as rated by study participants viewing tapes of judges during actual trials) is related to these expectations; more specifically, judges expecting a guilty verdict are rated as less warm, less competent, less wise, and more anxious when they deliver jury instructions. When these studies investigated the impact of judges' nonverbal behaviors, they found them to be related to jury verdicts but not consistently so.

Concerns that judges' nonverbal behavior influences juror decisions, thereby compromising trial fairness, have led to research investigating ways to mitigate such an impact. One study examined the complexity of jury instructions and judges'expectations for trial outcomes. Mock jurors were more likely to vote in accordance with judicial expectations when standard instructions were given. However, when simplified jury instructions were presented, participants were more likely to decide in opposition to the judges' expectations.

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