Eying the Body: The Impact of Classical Rules for Demeanor Credibility, Bias, and the Need to Blind Legal Decision Makers

Abstract

This Article focuses on law students and attorneys, not parties, witnesses, experts, and others. Part I briefly provides background: the pivotal role of classical rhetoric in western education, including the United States, the dispositive position of demeanor credibility in oral trial, and the persistent doubts about its reliability—doubts turned into certainty over two decades of research. Part II compares modern and ancient manuals to explain the rules of elite demeanor and its ideological claim to truth. Part III compares ancient and modern understanding of popular delivery; that is, choices in non-verbal communication that run counter to the elite rules and demonstrate affiliation with non-elite groups as grounds for credibility. Part IV shows how elite rules are enforced in law schools and courts, limiting how advocates can speak and, thus, what can be communicated. Part V discusses the role of an assumed natural, common, bodily language in erasing the problem of actual differences and justifying the paradoxical claim that a jury can be manipulated by highly trained professionals, yet ferret out lies. Part VI discusses benefits of the common adoption of elite demeanor and suggests improved instruction at laws schools and screening decision makers in litigation to reduce the cost.