Most attorneys would cringe at the idea of having to put a witness with a criminal record on the stand. However, a recent study from Temple University School of Law’s, Kathryne Stanchi, and Deirdre Bowen of Seattle University School of Law have found that it really might not make a difference. Threats to a witness’s credibility, like a prior conviction for instance, are real concerns for litigators and can even shape the strategy they take with a case. Stanchi and Bowen wanted to focus on the effects a witness’s prior conviction might have in a civil trial context. 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. 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.
It’s interesting to note some of the key features of the study are its use of a civil problem to test jurors perceptions. Further, rather than using testimony or a “trial on paper,” the researchers sought to make the jurors experience as real as possible. Video of opening, testimony, and the closing were shown to the participants. Each video script varied its delivery in how it addressed the prior conviction, and the deliveries employed had been thoroughly vetted by trial attorneys prior to the study .
This research seems to contradict much of the commentary usually applied to jurors, and indicate that in certain contexts bias may set aside in light of other credible pieces of evidence. According to the researchers, jurors can register particularly negative facts, like a criminal conviction," "but compartmentalize them when examining the merits of the case." These findings have positive implications for advocates and further scholarship on jurors’ perceptions of a witness with a previous conviction. Where an attorney may have once gone to great lengths to keep out those details about a witness, practitioners can now consider addressing such evidence head on and then proceeding to the relevant material in the witness’s testimony.
For attorneys on the other side who might want to use such evidence, the study suggests weighing the options carefully. Given that such evidence may have little to no effect on jurors, attorneys have to determine whether such technique could be impactful or seen as an unnecessary shot at the other side.
I’m of the opinion that I would rather be safe than sorry, but if keeping that pesky DWI or disorderly conduct from college just isn’t a option, then let your witness own it and move on to what the jurors really wanted to hear.