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David E. Clementson, University of Georgia and John E. Jones III, Dickinson College
Sex, money and power – all three subjects got an airing over the three days of testimony and cross-examination of Michael Cohen in the criminal trial of former President Donald Trump. Trump is accused of illegally covering up a hush-money payment to a woman claiming she had a sexual encounter with Trump; Cohen, known as Trump’s former “fixer,” says he carried out the scheme at Trump’s behest.
The Conversation’s senior politics and democracy editor, Naomi Schalit, interviewed John E. Jones III, the president of Dickinson College and a retired federal judge appointed by President George W. Bush, and David E. Clementson, a scholar of political communication at the University of Georgia and a specialist in political deception. The men spoke about how the jury may perceive Trump – those closed eyes may be a problem, says Clementson – and whether Trump’s defense rendered Cohen, a convicted liar, non-credible. The cross-examination, says Jones, is not “scoring as well as it might.”
How do you think Trump is seen by the jury?
David E. Clementson: As a researcher, I have conducted experiments testing the effects of a politician’s demeanor. I’m interested that Trump is often keeping his eyes closed in the courtroom. It’s this one simple nonverbal cue that could have a huge impact on the trial and the jury.
There’s an adage, “One cannot not communicate.” Take, for example, a person on an airplane closing his eyes when he sees the flight attendant coming down the aisle. He isn’t doing or saying anything – yet he’s actually saying a lot, such as, “Don’t talk to me. Don’t bother me. I don’t want a beverage. I don’t need peanuts.”
It could be a strategy by Trump’s lawyers telling him to sit there with his eyes closed. Otherwise, at minimum he’d probably be responding with derision, nonverbally, during the proceedings. And that can backfire and make you seem guilty.
But keeping his eyes closed could also be risky and maybe disastrous, because the No. 1 way that people think you are deceptive is if you don’t make eye contact and look away. That finding is cross-cultural, across languages, across people groups. If jurors think Trump is averting his gaze, they probably think he is deceptive.
But if the jury thinks he is communicating with his eyes closed, like the person on the airplane closing his eyes, it could be an exception to the rule that you have to make eye contact to seem honest. This may be the case if the jury thinks he’s justified in his derision about the proceedings.
John E. Jones III: I read that Trump’s proclivity to keep his eyes closed is a way of controlling himself so that he doesn’t act out. And recall that during the E. Jean Carroll trial, he acted out constantly. It’s my belief – having talked to countless jurors after trials and verdicts in cases – that jurors do not like parties who don’t respect the proceedings. It makes them very uncomfortable. They tend to see the judge as their friend, their keeper. When the judge is stepped on by a party, that offends the jurors. They see the judge as an ally because of the structure of the court.
Michael Cohen gave crucial testimony this week. He’s admitted previously lying under oath. How should a jury and the public evaluate his testimony?
Clementson: Reportedly, Cohen is the best witness that the prosecution has, yet he’s easily discredited. We know from social psychology and communication research that credibility is largely based on whether an audience thinks a speaker is expressing his own viewpoint or not. If a speaker is saying his own truly held opinions, the speaker is seen as honest and unbiased and sincere and persuasive.
But if the audience thinks he’s controlled by external circumstances, if he’s pressured by an outside situation, then he isn’t seen as honest and persuasive. Cohen exemplifies this external pressure controlling his words and actions. Based on his own testimony, he was formerly Trump’s biggest fan; he claimed to do and say whatever he was told. Then he turned on Trump, so even jurors who hate Trump are probably suspicious of a jilted lover who used to be infatuated with Trump.
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Jones: The philosophical question, I think, is can a person who lies repeatedly about myriad subjects figuratively change their spots and begin to tell the truth? That’s what the jury has to wrestle with.
The prosecution’s challenge in this case, from a trial and a legal perspective, is can they corroborate the things that Cohen is saying? I think they did a good job of precorroborating, as has been widely written, what Cohen said. Now the cross-examination that has been taking place over the last couple of days is really designed to show not just that he’s a liar, and that liars continue to lie, but also that he detests Donald Trump. And, as David Clementson says, that he is the sort of scorned lover to the extent that it colors his testimony.
I don’t think that the cross-examination is scoring as well as it might, because I think it’s somewhat meandering in nature.
I think the likely result of this case is going to be at this point – given all that I’ve seen and particularly if Cohen is the last prosecution witness – either a conviction or a partial conviction, or it’s going to be a case that involves a hung jury. Unless the defense pulls a rabbit out of the hat.
What does it mean, both for the jury and the public, and for the credibility of what happens in this courtroom, that Trump is most likely not going to testify?
Jones: It means that you have a whole spate of unrebutted testimony. And, of course, the judge will instruct the jury that the burden is on the prosecution and it’s a burden that never shifts, and it is absolutely not required for the defendant to testify. The judge really makes that quite pronounced in the instructions both before and after the trial.
As a trial judge, I would really press the jurors in my instructions on the rights of a defendant not to testify. That’s essential to our system of jurisprudence, and they need to understand that, and particularly that they are not to hold that against a particular defendant, because the burden of proof is on the prosecution. And I think most jurors operate with that in mind.
But human curiosity being what it is, the jury would probably like to know Trump’s version of the facts. It is always a very difficult decision for the defense to make. It’s kind of a cost-benefit analysis, based on what you get having your defendant testify versus the downside. The downside here is enormous.
Clementson: Trump can’t testify. Full stop. He’s too much of a loose cannon. Everything to lose, nothing to gain.
David E. Clementson, Associate Professor, Grady College of Journalism and Mass Communication, University of Georgia and John E. Jones III, President, Dickinson College
This article is republished from The Conversation under a Creative Commons license. Read the original article.