Wednesday, December 14, 2011

Mistakes, I've Made a Few

You can hear it in their voice.  You see it in their hesitation.  It is the final trial preparation with your witness.  You are telling them how to handle cross-examination.  You've just told them the defense attorney will ask a lot of uncomfortable questions about their past.

Witness:  But, they can't ask me about that.
Pros. Dis:  They can and will.
Witness:  You can't let 'em.
Pros. Dis:  I'll stop them when it's inappropriate.  But they can ask you about your convictions.
Witness:  But that's years ago.  I did my time.
Pros. Dis:  I know and that's what you tell the jury.  Just be honest about it.

This post discusses when an attorney can bring up a witness or victim's prior bad acts during trial.  It follows the previous post about showing the jury the defendant's previous convictions.

There are different rules for civil and criminal trials.  This post deals only with criminal trials.

A witness's credibility is at issue in every trial.  It's the reason we require live testimony instead of just reading a witness's prior statement.  Credibility means whether a person is telling the truth.

So, what do we look for when someone is telling the truth?  Two things:

1) If the actual words a person says make sense, and
2) How they say those words.  Are they avoiding eye contact, looking away, acting evasive?

Since a witness's credibility is at issue, prosecutors are required to disclose a witness's prior convictions to the defense attorney prior to trial.  That means a defense attorney is allowed to ask the witness about those prior convictions no matter how old they are.

What is a conviction?  A list of what it is not:
1) a dismissed case
2) an arrest without formal charges
3) a bad act that didn't result in a conviction
4) an acquittal

It must be an actual criminal conviction.  The defense attorney is allowed a lot more freedom in questioning a witness with a criminal record than we are when questioning a testifying defendant.  They can ask about the facts that created the conviction and the conviction.  A hearing is not required to determine if it is prejudicial.

A juror wants to know the whole picture of the witness.  Are they an upstanding citizen?  A murderer?  A thief?  Have they committed fraud?  A DWI?  This way they can make an accurate judgment on credibility based on the full picture.

Since credibility is so important in a trial, a witness's criminal history is something we have to consider in assessing the strength of our case.  This does not mean we dismiss a prostitute who claims a man raped her, or that we won't proceed in a robbery case where our victim is a homeless drug addict.  It is merely one of many considerations. in what the final resolution should be.
The best strategy is to take the sting out of this information.  Discuss it early and often so that when the jurors hear it from the witness stand, it won't be a big deal.

Ask the jurors if they can listen to a witness who has a criminal record during jury selection.  Can they hold off their credibility judgment until the witness has testified?  Or does the fact the witness is a criminal mean the juror will never believe them.

Also, bring the conviction out during the witness's testimony.  This takes the sting out of cross-examination.  It is not such a factor if it is sandwiched in between their testimony that the witness watched a brutal murder or had a gun put in their face.

Then, address it on closing.  Doesn't the fact the witness got on the stand and admitted his past make him more credible?  It's a difficult thing for anyone to do.  Get up in front of a group of strangers and air all your dirty laundry.  The witness didn't hide anything.  If they were going to make something up, wouldn't the witness shade their past?  Try to make themselves look better?  If they were so truthful with all the embarrassing things they did in their lives, doesn't it make sense they were truthful with everything, including identifying the defendant?

There aren't as many protections for a witness as for a defendant.  Personally, I never mind a criminal conviction as long as the witness admits to it.


  1. Plenty of people mess up in their lives. I would be more likely to believe someone who did speak honestly about past convictions rather than someone who seemed as though they were trying to hide it. Also, I think it's extremely odd that witnesses' criminal convictions are fair game but a defendant's criminal past is so hush-hush. Just doesn't seem right. I know, I know, the whole prejudice thing . . . still, it doesn't seem right.

  2. It's a tough issue and always a tough convo with the victim of a crime. You have to testify about the worst day of your life in front of the guy who did it to you and a group of strangers. And, by the way, they get to bring up whatever bad things you did.