This Is Your Sword: How Damaging Are Prior Convictions to Plaintiffs in Civil Trials?

• Publication year: 2021

THIS IS YOUR SWORD: HOW DAMAGING ARE PRIOR CONVICTIONS TO PLAINTIFFS IN CIVIL TRIALS?

Kathryn Stanchi(fn*) and Deirdre Bowen(fn**)

Abstract: The conventional wisdom in law is that a prior conviction is one of the most powerful and damaging pieces of evidence that can be offered against a witness or party. In legal lore, prior convictions seriously undercut the credibility of the witness and can derail the outcome of a trial. This Article suggests that may not always be true.

This Article details the results of an empirical study of juror decision-making that challenges the conventional wisdom about prior convictions. In our study, the prior conviction evidence did not have a direct impact on the outcome of the civil trial or the credibility of the witness with the conviction. Moreover, we tested prior conviction evidence with a white witness and an African-American witness and saw no difference in results.

The prior conviction evidence did, however, change the trial in a substantial, but indirect, way. Rather than the direct effect on outcome that we might have expected, the introduction of the prior conviction evidence changed the mental decision-making process of the jurors. Specifically, the evidence seemed to subconsciously lead the jurors to conclude that to decide liability, they had to believe one party over the other. The prior conviction evidence thus turned the trial into a zero-sum credibility contest wherein believing the plaintiff's story necessarily meant disbelieving the defendant's (and vice versa). This "zero-sum" effect did not appear in the control version of the trial.

In sum, the results of our experiment suggest that while prior convictions are highly noticeable and powerful pieces of evidence, they may not always be the bane that lawyers think they are. Nevertheless, the introduction of this evidence has the potential to change a civil trial by changing the juror decision-making process.

INTRODUCTION ................................................................................ 902

I. LITERATURE REVIEW ............................................................. 905

A. Legal Scholars and Lawyers ............................................... 906

B. Empirical Data on Prior Convictions ................................. 910

1. Effect on Outcome of Trial ........................................... 911

2. Effect on Credibility of Witness ................................... 914

3. Race .............................................................................. 914

II. OUR STUDY ............................................................................... 916

A. Realistic Trial Scenario ...................................................... 916

B. Prior Conviction Evidence ................................................. 920

C. Subjects/Participants .......................................................... 923

D. Race of Witness with Prior Conviction .............................. 925

E. Survey Questions ................................................................ 925

III. RESULTS ..................................................................................... 926

A. Trial Outcomes ................................................................... 927

1. Defendant's Liability .................................................... 927

2. Juror Confidence Level in Verdict ............................... 929

3. Prior Conviction Evidence Effect on Credibility .......... 930

B. Salience of Harmful Facts .................................................. 933

1. Observing a Harmful Fact ............................................ 934

2. Articulating the Harmful Fact Observed ..................... 934

C. The Importance of the Bad Facts to Outcome and Credibility ........................................................................... 936

D. The Interaction Effect of Believing a Witness, Damageto Plaintiff's Credibility, and Case Outcome ..................... 941

1. Believe Plaintiff, Damage to Plaintiff's Credibility, and Outcome ................................................................. 942

2. Believe Defendant, Damage to Plaintiff Credibility, and Outcome ................................................................. 949

3. The Relationships Between Believe Plaintiff, Believe Defendant, and Case Outcome ........................ 951

IV. DISCUSSION .............................................................................. 953

A. Case Outcome ..................................................................... 953

B. Credibility and Believability .............................................. 954

CONCLUSION .................................................................................... 960

INTRODUCTION

Embedded in the law are strong beliefs about prior criminal convictions and their impact on a witness and a trial. In this Article, we describe the results of an experiment that explored the validity of those beliefs.

The story the law tells about prior conviction evidence starts with the practicing bar. Overall, lawyers consider prior conviction evidence to be very damaging. A good metaphor for how lawyers view prior crimes evidence is that the evidence is like a bomb: extremely damaging to the direct target (the credibility of the witness) but with potentially devastating collateral damage well beyond that target (the outcome of the case, other witnesses, damage awards).(fn1) As a result, lawyers may go to great lengths to keep prior conviction evidence out of the case, including counseling clients not to testify in their own defense.(fn2)

The law's story about prior conviction evidence is also apparent in the rules of evidence, which single out prior convictions with a special rule governing their admissibility, a testament to their sui generis status.(fn3) Rule 609 unequivocally reifies the notion that a convicted criminal is likely to be a liar because it allows the admission of prior conviction evidence to impeach the credibility of the witness.(fn4) It is no surprise, therefore, that lawyers fear this prejudicial evidence. Lawyers especially fear prior conviction evidence when offered against a witness who is African-American, because of worries about enduring prejudice against African-American men and criminality.(fn5)

But are these beliefs, held so strongly by lawyers and reflected in the Rules of Evidence, valid? This Article summarizes a recent study, the intriguing results of which upset some of the assumptions embedded in the story the law tells about prior convictions.

Our study is unique in that it tested the impact of prior conviction evidence in a trial scenario designed to be as realistic as possible. Our study differed from prior studies in a number of ways designed to maximize realism. For example, we used a video of a trial that had been vetted by several experienced practitioners, our mock jurors were drawn from two actual jury pools, and our evidence was a realistic prior conviction and not a "smoking gun."(fn6)

We discovered an effect that was more complex and nuanced than the story told by the law. First, in our study, the admission of a prior conviction for a crime involving dishonesty was not the explosive bomb depicted in legal lore; it did not directly change the outcome of the case in any statistically significant way. Moreover, our juror subjects generally denied that the prior conviction evidence hurt the credibility of the witness. Despite lawyers' fears about the devastating effect of prior conviction evidence, the jurors in our study were able to stay focused on the merits of the case despite the introduction of the evidence and its explicit use by defense counsel. The study also shows an interesting and surprising result with regard to race: juror use of the prior conviction evidence did not differ in a statistically significant way between the African-American and white plaintiffs.

The prior conviction evidence did, however, change the trial. It just changed the trial in a way that was more nuanced than the simplistic story told by lawyers and the rules. In our study, the introduction of the prior conviction evidence had a subconscious effect on the jurors that led them to turn the trial into a zero-sum credibility contest in which believing one side meant disbelieving the other. Jurors who heard the prior conviction evidence resolved the case by first deciding which party to believe, and then deciding who won. This zero-sum credibility effect happened only in the trials in which the prior conviction was admitted. The jurors who saw the trial with no prior conviction evidence were more focused on the merits and could believe one party or both parties equally.

In sum, the results of our experiment suggest that prior convictions may not be as directly damaging to the outcome of the case or the witness as legal lore suggests. But the introduction of this evidence does have the potential to change juror decision-making in a trial from a process that weighs the merits of the case to a credibility contest about which side to believe.

This Article addresses the effect of prior convictions on jury decision-making in four parts. Part I reviews the literature, from law and social science, about juror decision-making and prior conviction evidence. Part II outlines the methodology of our study. Part III describes...