By Maritza Sifuentez-Chavarria
Assistant District Attorney in Brazos County
COVID-19 and the changes it’s wrought don’t seem to be slowing down, and trial dockets, at least in our jurisdiction, are moving full steam ahead. There’s no step-by-step instruction manual to manage a public health crisis while also ensuring justice is done, but our office has tried several cases since August. We’ve seen some of our efforts snuffed out by COVID-related mistrials, but for the most part, we’ve tried cases successfully to verdict. While we surely don’t have all the answers, we’ve discovered that trials during the chaos of COVID are possible.
As I write, it’s on the heels of losing a powerhouse in our family to COVID-19. This article stresses the importance of protecting people from potential transmission of the virus not to be alarmist, but because the devastation of this virus is real. People’s concerns are valid, and if prosecutors fail to respect them, we will find ourselves alienating the witnesses who make up the very backbones of our cases. Prosecutors will likely come across a witness who has lost someone they love to COVID or who is simply worried about the virus’s transmission.
I am starting with the basics of effective communication with the added twist of navigating it with purposeful protective measures to ensure witnesses not only feel safe but also are safe. This article is designed to help prosecutors meet with witnesses before trial, get those witnesses comfortable in the courtroom, and use Zoom effectively when it becomes necessary.
Where to meet
One of the very first things to consider is where to hold a witness meeting. A witness’s concerns about COVID can interfere with how comfortable and conversational he or she may be, so choose a space that allows the witness to feel protected from COVID. Also, try to be sympathetic to how alienated or intimidated a witness may feel in having to relay the facts of a crime to strangers in masks. Witness meetings are routine for prosecutors, so it is easy to forget how uncomfortable they may be to the average civilian witness. Even before the pandemic struck, simply serving a witness with a subpoena could have a startling effect. It instantly catapulted that person back to a situation that was humiliating or scary. Now, add COVID into the mix. By being situationally aware of these old and new concerns, prosecutors can make simple choices that will allow witnesses to be comfortable and insightful during their witness meetings.
Consider some of these tips to get the best information from a witness, and in turn, provide the jury with the best possible testimony:
1) If possible, meet with a witness at the office, but be mindful of drawbacks (more on those in a minute).
2) When a witness cannot come to the office, go to him or her.
3) Zoom is a great alternative, but Zoom should be just that, an alternative.
Meeting in a conference room
A spacious conference room is the best location for witness meetings. Hosting meetings in-office gives prosecutors better control over variables, ensures that we can enforce COVID safeguards, puts office resources at our disposal, and gives witnesses a chance to warm up to the idea of speaking to prosecutors in a courthouse setting. Some prosecutors prefer to meet with witnesses in the comfort of their own personal office, rather than in a conference room, but an individual’s office is probably too small for comfort or social distancing. There just isn’t a good way for an entire team (assuming two prosecutors, an investigator, and a victim coordinator) along with a witness to socially distance without being awkward.
Yet, even a conference room at the courthouse can have its own drawbacks. For example, some people experience anxiety simply because they are intimated by the courthouse setting or by the prospect of speaking to prosecutors. Unfortunately, prosecutors can’t dispel witnesses’ anxieties, completely.
However, we can take efforts to calm them and promote open and effective dialogue. Simply sitting in a particular spot at the table can influence the trajectory of a witness meeting. Studies show that sitting at the head of a table is “power sitting” and conveys that a person is the leader, is in control, and is there to intimidate.[1] Witnesses, especially victims, need to feel safe and understood. By merely choosing a different seat at the center of the table, the prosecutor can convey that the witness is part of the team, the prosecutor is approachable, and the prosecutor is listening.
Effective communication also calls for prosecutors to be inclusive with witnesses by using a conversational tone rather than leading them through question-and-answer format. The Q&A style of conducting witness meetings is common. Prosecutors take a pre-drafted direct examination into the meeting, lodge the questions, and wait to hear the witness’s anticipated answers. When the witness replies in a way we didn’t anticipate or goes on a tangent, we redirect him back to our initial question. But this practice can feel cold and short. It may also unintentionally cut off the witness’s thought process. While we should control how long to indulge a witness to avoid getting completely derailed, we should also give the witness allowances to work through an answer on his own. It might provide insight that we didn’t previously have. Being conversational also allows us to ask about significant sensory information that a police report doesn’t reflect. How something felt (physically or emotionally). What the witness was thinking. Any smells they can recall. These are often left out of reports, but are compelling for a jury.
Effective communication also requires that we remove as many distractions as possible. One of the easiest ways to demonstrate respect and attentiveness is by putting away electronics. We’ve all had it done to us: Someone responds to a text while in mid-conversation, and it chills our willingness to continue engaging. Checking the phone signals the listener’s loss of interest or that the speaker is unimportant. It’s both frustrating and disrespectful. When prosecutors answer a text or email during a witness meeting (even if it’s for the trial we are currently preparing), we’ve signaled the exact same thing.
Phones aren’t the only distracting devices: So are our laptops, and it’s a distraction for both the witness and for us. Typing everything the witness says requires us to look at the computer and disconnect our eyes from him or her—and with everyone wearing masks, eyes are the only facial features a witness has left to see. As a consequence, we are inadvertently alienating our witnesses when we take notes on a laptop. Taking our eyes off the witness may also interfere with our ability to observe how he or she responds through body language. We are already limited to what nonverbal communication we can observe from facial expressions because the mask, well, masks them. Nonverbal communication is so powerful it can actually reveal more than what a person says aloud, so we don’t want to risk losing any more of the compelling evidence that’s already lost to masks. There’s an easy solution for this situation: If two prosecutors are on the case, plan for one person to transcribe (as best as possible) while the prosecutor leading the meeting uses pen and paper to jot a few notes.
Another method to promote effective communication is “mirroring.” This is the process of repeating one to three things that a person says to encourage her to expand on her ideas.[2] Mirroring proves you were listening because you can directly quote the speaker. It also shows that you are engaged and want more information. As simple as it seems, mirroring works exceptionally well.
Take, for instance, a meeting we had with a victim’s mother as she described a phone call with her daughter, the victim in an Aggravated Assault with a Deadly Weapon-Family Violence and Strangulation case.
Mother: “I was on the phone with my daughter, and I just knew something wasn’t right.”
Prosecutor: “You just knew?” [mirroring what the woman said]
Mother: “Yeah. That’s my baby. I talk to her every day. I can tell when she’s happy or scared. I can tell it by the way her voice sounds. She’s a serious and quiet person, but I can tell if something is off with my daughter. I could just feel it in my gut. It gave me chills.”
The benefit of mirroring is that a witness engages and clarifies without our having to ask more authoritative-sounding questions like: “How do you know that?” or “What do you mean?” Mirroring gets us the same result, but it is a soft way to prod for more information without coming off as aggressive.
Meet a witness at a place of his choosing
While meeting in office is ideal, sometimes witnesses will meet only at the time and place they designate. The possibilities for these locations are endless. In our office, prosecutors have gone out to witnesses’ homes only to be attacked by bees and (almost) attacked by dogs. We’ve met with witnesses in restaurants when they refused to miss dinner. Another prosecutor found himself on horseback to talk to a child with autism who had difficulty opening up to strangers. The point is: We might have to do some things outside our comfort zones to break through with witnesses. And sometimes, we have only one shot at it, so if a witness doesn’t feel comfortable coming into the prosecutor’s office to speak with the trial team, you may find yourself on a horse in a field or running from bees—only now, you’ll have a mask on.
Zoom in pretrial meetings
Our office consistently reinforces the importance of having face-to-face witness meetings. You want to be able to look at witnesses straight and deep into their optic stems. It gives prosecutors a true sense of the person’s honesty, and you can read and connect to them. But what should you do when a witness is quarantined? Or in a land far away? You can’t meet face-to-face. You could just pick up the phone and give your witness a call, right? Wrong. It’s fine to touch base with a witness this way, but entire meetings shouldn’t be confined to the blindness of a phone call. There are a variety of reasons phone conferences are no good, but importantly, people are more inclined to lie over the phone, and detecting the lie is difficult without seeing a person.[3] Now, when we truly cannot meet a witness face-to-face, use Zoom. It’s free, easy to access, and simple to use.
The convenience of using Zoom regularly and in place of face-to-face meetings can be tempting, but Zoom has its own problems. Zoom meetings put prosecutors at the mercy of the witnesses and their surroundings. We’ve had witnesses fail to show up to scheduled meetings. Another witness attempted to conduct a Zoom meeting while driving. We’ve even had a witness try to hold the meeting as she relaxed laying down in her bed. In another meeting, the witness muted the Zoom video to use the bathroom. When he returned, he reassured us he missed reviewing only “like the last few minutes” of his extremely important recorded statement to police. Zoom meetings, while convenient, are out of the prosecutor’s control and allow for surprising distractions. They are also wasteful when they flop, and we end up having to make the witness come in later to have a face-to-face meeting anyway.
Witnesses in trial: Zoom or live
Luckily, prosecutors aren’t faced with the dilemma of deciding between trials conducted entirely by zoom trials versus live trials, but we do have the reoccurring problem of whether we should proceed with Zoom testimony versus in-person testimony for particular witnesses. How prosecutors navigate this decision largely depends on the type of witness.
First, just like in pre-trial meetings, the same awkwardness experienced during Zoom meetings can emerge in the trial itself. The witness you permit to testify via Zoom should be trusted to take the situation seriously—and not attempt to testify while lying in bed or pause the video to go to the bathroom. Second, for certain witnesses, testimony will be mainly unaffected by appearing remotely and are appropriate for Zoom testimony. Officers and medical experts fit this category. That sort of testimony doesn’t usually require the same physical and emotional presence as we’d need from lay witnesses close to the crime. Be warned that this isn’t always the case. For example, in our office, family violence trials rely heavily on the use of demonstratives and charts prepared through officers and other experts. The fluidity of the presentation loses some of its impact when we cannot build and present them in the well of a courtroom right before the jury’s eyes.
Finally, we should be on guard that Zoom testimony can be a breeding ground for technology fails. Issues with technology create the risk that we completely missing what a witness says or—worse—hear him incorrectly. During the punishment phase of an October trial, a victim of family violence testified via Zoom from an inpatient treatment facility located out of town. Because of the facility’s poor internet connection, her testimony took twice the time it should have. At times, it even appeared that she was not responding to the questions we asked. In reality, the system was intermittently pausing and skipping throughout her testimony. The complications came to a head when at one point, the entire system shut down as she was speaking. We felt that the impact of her testimony took a hit. However, in that scenario, due to COVID travel restrictions, the only option for her testimony was via Zoom—or nothing at all.
Nevertheless, in this case, the defendant was convicted and sentenced to 30 years in prison for Indecency with a Child by Contact, so I’ll be the first to admit that sometimes a situation can feel worse than it actually pans out. And (as in this case), most of the issues prosecutors will encounter will have little effect on acquiring a just and true verdict.
For many witnesses and jurors, being part of a trial is a first-time event. Being part of a trial during a pandemic will now be a once-in-a-lifetime event. At this point, you’ve likely heard the war stories from prosecutors who’ve faced challenges with the distractions and strangeness of trying a case during the COVID pandemic. (There are more stories in “How prosecutors are making it work,” on the front cover.) But trials during COVID have several constants—the only things that have truly changed for judges, defense attorneys, and prosecutors are COVID protocols. On the other hand, consider what this set-up must be like for a witness. For someone who has never testified, everything about the situation is new and strange. So to alleviate the angst, prosecutors can duplicate the same efforts we put toward witness meetings and apply them in trial.
Just as in the witness meeting, establish a comfortable environment. This is a harder task because we have little control over the courtroom set-up, but we can do a few things to put the witness at ease. First, beginning back in the witness meeting, talk to the witness about what to expect at trial. Explain the protections in place to guard everyone from COVID transmission. Use the pre-trial meeting to determine if the witness has a physical problem testifying with a mask on. Discussing those issues beforehand saves you the catastrophe of someone clamming up on the witness stand. There are ways to allow a witness to remove the mask (say, if you can still safely socially distance or if there’s a plexiglass barrier around the witness stand). Be aware of any restrictions in the courtroom so that you can inform witnesses before they take the stand. Prosecutors in our office often show witnesses the courtroom before trial so they can see the new measures in place.
Then, in trial, consider the same tips as before: Be intentional about putting the witness at ease. You can break the ice by pointing out what a witness may be feeling. Addressing the elephant in the room alleviates the tension and awkwardness. For instance, we can ask them about the anxiety they have from the face masks: “I know wearing masks is hot and awkward—it is for me too. It’s totally OK to feel that way.” Or if a witness takes the stand and clearly sounds nervous, we can ask about it. “Have you ever testified before? Are you feeling nervous?” Then let them know that’s OK.
But be careful with this. I once asked a witness if she was nervous, and she said no—she was just out of breath from running up the stairs to the courtroom. It got a good chuckle from the jury, but it wasn’t what I expected she’d say. The goal is to remove emotional or physical distractions so the witness can focus on the testimony.
Keep questions simple. Simple questions will minimize distortion from the mask and lessen the chance that a witness gets confused. Because you’ve already discussed the testimony during the witness meeting, the witness will be equipped with predictability in the questions and with you. It fosters trust. So when curveballs are thrown (as they often are during a normal trial, let alone these days) and we are forced to respond, the witness can trust where we are going with it, and she can answer questions with confidence and believability.
When questioning a witness, use highlighting. Highlighting (similar to mirroring, discussed above) simply means we take something important the witness has said and restate it to highlight portions or transition into new topics. Highlighting is beneficial for several reasons: it ensures the jury hears what a witness said. It reiterates the most important parts of the testimony. It also helps witnesses feel secure in what they say by allowing them to confirm that you heard them correctly—or to correct us. That gives witnesses confidence to speak, knowing that they have power over their own words.
Minimize distractions. We already noted that in a witness meeting, a computer creates a physical distraction and barrier between you and a witness—and in court, it does the same with the jury. Instead of reviewing our questions from a laptop screen, print them out and set the computer to the side so you can talk to the witness without the computer blocking anyone’s view. Also, if jurors are sitting behind you, they may be able to see questions on the computer screen. If the questions are on paper on counsel table, you have more control over anyone inadvertently seeing your questions and notes.
Embrace the situation. I hate masks. But if we can find a silver lining in this whole situation, we might as well embrace it. In the middle of November, my trial partner and I prosecuted a strangulation case. (Spoiler alert: It ended in a COVID-related mistrial two witnesses in, but I digress.) In a strangulation case, what better than a face mask to describe the panic of not being able to breathe normally? Everyone knows this feeling—like you’re running out of breath after going up a flight of stairs or carrying a heavy package, but then not being able to remove the mask right away (because you’re still in a public place), gulp air, and get some relief.
The anxiety and panic in those situations don’t even scratch the surface of what a strangulation victim feels when her air or blood is actually impeded. And now, jurors can understand the gravity of an actual strangulation and panic when they, even if only slightly, relate to a mere fraction of what a victim might feel. And because relatability brings jurors into the fold, we should use whatever means available to help a juror relate.
Conclusion
With trials happening since August in Brazos County and no end to protective protocols in sight, prosecutors are called to simply adjust to the situation thrown their way. Trying cases during the pandemic is slowly becoming our new norm. It is still unknown whether we’ll be carrying on as usual in the new year or if the COVID guidelines will be finally lifted in their entirety. Regardless, if your jurisdiction is anything like ours, we have trial dockets lined up for the foreseeable future. The prospect of attempting a trial during this time can seem daunting, but it’s possible. Being respectful and responsible regarding COVID-19 and being effective in the way we communicate with witnesses will help us see justice done during COVID (and even beyond).
Endnotes
[1] Tirado, Bernardo, PMP (2012, October 15) The Power Seat: Where You Sit Matters. Retrieved from https://www.psychologytoday.com/us/blog/digital-leaders/201210/the-power-seat-where-you-sit-matters.
[2] Masterclass, “Lesson 2: Mirroring.” Chris Voss Teaches the Art of Negotiation. 17 Dec. 2019. www.masterclass.com.
[3] Maryke Steffens (2003, July 31), Natural Born Liars, retrieved from www.abc.net.au/science/articles/2003/ 07/31/2857387.htm.