By Dr. Ken Broda Bahm:
The witness is in good shape and the testimony looks to be great. There’s just one little problem in his past: a conviction. Litigators are understandably concerned about any threats to witness credibility, but if that threat comes in the form of a rap sheet, that’s viewed as a very damaging fact, if not a ticking time bomb. The effects of a prior conviction are most often written about in a criminal defense context where the research generally shows that the fact of a prior conviction significantly increases the chances of a current conviction, particularly where the prior conviction is for a similar crime. But it can be a factor for any witness who’s had a prior brush with the law. In civil cases, crimes involving dishonesty can be admitted for the narrow purpose of impeaching a witness’s credibility. A recent study (Stanchi & Bowen, 2014) that focused on a civil trial context looks at the question of whether the damage is as bad as one might suspect. The results? No it isn’t. In a realistic controlled study, the researchers found that prior conviction evidence did not increase the chances for an adverse verdict. Instead, emphasis on the conviction caused mock jurors to frame the trial as more of a zero sum contest on witness credibility — a frame that can end up actually benefiting the convicted witness.
These results have some implications for attorneys assessing the risks to their witnesses’ credibility. Those risks can factor heavily into case assessment and strategic choices, with attorneys sometimes making an extreme effort to keep prior convictions out, or keeping their witnesses off the stand in order to limit this evidence. If the effect of prior convictions is not as damning as attorneys assume, then some of these cures could be worse than the disease. This post looks at the new study and shares some practical implications for those who are considering the effects of a prior conviction on either their own witness or the other side’s witness.
The Study:
Kathryn Stanchi of Temple University School of Law and Deirdre Bowen of Seattle University School of Law conducted this study (available for download here), and it has a number of unique features:
- Unlike most studies on prior convictions, it is conducted in a civil litigation context focusing on a witness for the plaintiff.
- It uses a scenario designed to be as realistic as possible. Instead of relying on paper descriptions, the researchers used 40-minute video clips including openings, testimony, and closings.
- The way the prior conviction was addressed and framed in the script was vetted by trial attorneys.
- Both a white and a black plaintiff’s witness were tested, with and without information on a prior conviction.
- Whether the prior conviction was brought up by the plaintiff or the defense was also varied.
- The researchers used actual jury pools (dismissed during voir dire) from Philadelphia, Pennsylvania and Everett, Washington.
As noted in the introduction, the big finding was the lack of one: Prior conviction information did not impact either the outcome of the civil trial or the credibility of the specific witness. In addition, it also did not matter whether the witness was black or white. Ultimately, however, the authors concluded that the prior conviction information did make a big difference in making mock jurors more likely to see the case as a zero sum dispute. In other words, it’s now about whether you believe the witness or not, and if you do, you side with the plaintiff. If you don’t, you side with the defense. This has some implications for dealing with both your own as well as the other side’s witness with a past.
If You’re Dealing With Your Own Witness’s Prior Conviction…
The main messages for witnesses who have prior convictions and their attorneys are both reassuring and strategic.
Don’t Assume the Worst
The authors concluded that, “not only did our results show that prior conviction evidence does not play a substantial role in case outcome, prior conviction evidence also appears to be of low importance to jurors’ verdicts and to their assessment of plaintiff’s credibility.” At least as tested in this study, a prior conviction isn’t the death-knell for credibility, as jurors will still use their own judgment on whether it matters and by how much.” Jurors can register particularly negative facts, like a criminal conviction,” the authors note, “but compartmentalize them when examining the merits of the case.”
Frame it Carefully
That reassurance should be tempered by the fact that the authors looked at one particular case scenario. But the way they approached that scenario provides a possible template for handling convictions more generally. The authors explain, “We had the plaintiff’s lawyer strategically frame the prior conviction as an aberration in plaintiff’s otherwise law abiding life and argue to the jury that the conviction was wholly irrelevant to the case at hand.” This jibes well with our general advice: If you’ve got bad information and you know it is coming out, then go ahead and get it out early in order to seize the opportunity to frame it yourself.
If You’re Thinking About Raising an Opposing Witness’s Prior Conviction…
For those on the other side, a prior conviction isn’t automatically a good weapon. As the authors note, “advocates should think twice about raising and arguing a prior conviction against the other side” in civil cases.
Beware of the ‘Zero Sum’ Credibility Effects
The information on prior conviction didn’t reliably change the outcome, but did reliably change the frame, turning the trial into a more black and white question of whether the witness was believable or not. “Jurors who did not hear the prior conviction tended to view the case in terms of the credibility of case theory or narrative as told through the evidence,” the authors explain. “On the other hand, jurors who did hear the prior conviction evidence tended to view the case in terms of credibility of the witness — i.e., in order to determine which side won, these jurors believed one witness and rejected the testimony of the other witness.” Depending on the case, it might benefit your side to make the trial that kind of zero sum contest on credibility, or it might not.
Mind the Possible Backlash
The most important message for those seeking to use a prior conviction against a witness is the knowledge that the sword can become the opposing witness’s shield. Stanchi and Bowen point to a prior study (Wissler & Saks, 1985) showing in a criminal context that information on a prior conviction for a less serious crime (e.g., auto theft when charge is murder), can actually reduce the conviction rate. That kind of information seems to lead jurors to the view that the prosecutor is trying to manipulate them through the introduction of biasing information. That same dynamic can apply in a civil setting, as Stanchi and Bowen note, “If that prior conviction is of only moderate seriousness and of dubious relevance to the case, jurors may see it as a smokescreen and could have a backlash response.”
One important caveat on this advice is that the research is focused on one specific fact pattern in order to preserve the realism of the study. Whether it holds true in the context of another specific case, witness, and prior conviction is a matter for your own investigation. It is another reason to check what the effects will be in your own mock trial. But the study shows that a prior conviction isn’t necessarily the credibility threat that lawyers and the law might assume it to be.
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Other Posts on Witness Credibility:
- Consider the Credibility of Your Missing Persons
- Testify Without Contempt
- Know When to Pursue Witness Inconsistency and When to Let it Go
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Stanchi, K., & Bowen, J. D. (2014). This is Your Sword: How Damaging are Prior Convictions to Plaintiffs in Civil Trials? Washington Law Review 89.
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