Part of the former group, those preferring live testimony, are lawyers who believe face-to-face cross examination, and the ability to assess expressions and body language more closely, is far more effective. Many of us subscribe to this view at some level—but how essential is to be in physical proximity to judge credibility?
A great deal of social science and psychological research, as well as anecdotal experience, suggests that we are far more often wrong than right in our considered judgments of people. Among others, Michael Lewis and Malcolm Gladwell have written books persuasively explaining these kinds of cognitive errors.
As important, I think, as any ability to read the witness is the interest and dynamic created by live cross-examination, which is more difficult to sustain by video. Certainly, if the option is presented, a live video feed is far superior to prerecorded testimony, as the many soporific hours jurors have spent watching overlong video deposition clips will attest. But the physicality and energy of live cross is better yet. And in those jurisdictions that allow counsel to move freely in the courtroom and approach the witness box, the examining lawyer will have more ways to maintain control over testimony and to direct a jury’s interest.
A related area ripe for additional study is how decision-makers themselves — judges, jurors, and arbitrators—may assess the same testimony from the same witness differently if it is by video rather than live.[/vc_column_text][/vc_column][/vc_row]