Yes, the nonverbal conduct of a witness can absolutely be used to challenge their credibility during an Article 32 preliminary hearing, and it is something a skilled defense counsel will pay close attention to. While the written transcript captures the words spoken, the Preliminary Hearing Officer (PHO) is present in the room and observes the witness’s demeanor, which can be just as revealing as their testimony.
A witness’s nonverbal cues, such as avoiding eye contact, fidgeting excessively, long pauses before answering simple questions, or displaying an overly emotional or flat affect that seems inappropriate for the context, can all suggest a lack of truthfulness or confidence. While not definitive proof of lying, these behaviors can undermine a witness’s credibility in the eyes of the PHO.
Defense counsel can highlight these issues in their closing argument to the PHO. Counsel might argue, for example, “Your Honor, you saw that when asked about the timeline, the witness could not look me in the eye and hesitated for ten seconds. Their demeanor suggests they were not being candid.” This encourages the PHO to factor their own real-time observations into their assessment of the witness’s testimony.
While the nonverbal conduct itself is not captured in the transcript, counsel’s commentary about it can be. Furthermore, the PHO’s own impression of the witness’s demeanor will undoubtedly influence the weight they give to that witness’s testimony when evaluating probable cause. In a case that hinges on a credibility contest, a witness’s poor demeanor on the stand can be a significant factor in the PHO’s analysis.