Between the seventeenth and nineteenth centuries, a defendant in a criminal case was disqualified from testifying. The reason had to do with the powerful motive that a criminal defendant would have to say “I’m innocent” regardless of whether it was true. A witness with such a strong incentive to lie would make a mockery of justice and would be better remaining silent. During the nineteenth century, however, admissibility became more liberal, and criminal defendants could take the witness stand, notwithstanding their motive to exonerate themselves. In the place of disqualification came impeachment.
Last week in my Evidence class, we talked about impeaching criminal defendants’ testimony with prior convictions, as allowed by Federal Rule of Evidence 609. Impeachment refers to attempts by the opponent of a witness or evidence to reduce the impact of that witness or evidence on the jury’s thinking. One surprisingly controversial topic involves what the defendant should do when the judge has ruled a particular prior (prior conviction) to be admissible for impeachment purposes. The question was how a jury might react to learning about the prior in different ways and whether those respective reactions are rational. In this column, I will suggest that the jury’s reaction is predictable but also irrational.
The Role of Priors Admitted to Impeach
When a judge decides to admit prior convictions to impeach a criminal defendant—because the probative value of those convictions outweighs their tendency to cause unfair prejudice—the purpose of the evidence is to suggest that the defendant is not a credible witness. The prior is not there to say that the defendant is likely to be guilty of the charged offense. We have reason to think, however, that juries look at the prior as evidence on the question of guilt, despite instructions to the contrary, and to consider the defendant’s credibility so low already—due to the obvious motive to say “I’m innocent” no matter what—that the prior conviction does little to further diminish it.
A defendant who learns that his prior conviction will come into evidence if he testifies has a few decisions to make. First, will he testify at all and thereby open the door to the priors? Second, if he testifies, will he bring up the priors during his direct examination or will he wait until cross examination when the prosecutor asks him about them? The U.S. Supreme Court in Luce v. United States held that if a defendant reacts to a priors ruling by staying off the witness stand, then he cannot appeal the rectitude of the priors ruling. It then held in Ohler v. United States that even if the defendant reacts to the priors ruling by testifying, if he brings up the prior convictions himself, then there too, he forfeits an appeal of the priors ruling (with a possible exception for where the prosecutor aggressively presses the priors on the jury in a way that qualifies as impeachment).
Some have complained that Luce and Ohler are unfair, because they place the defendant between a rock and a hard place. Because of Luce, the defendant has to select between taking the witness stand, as is his right to do, and facing impeachment with possibly impermissible material (which he can then appeal if convicted), or, alternatively, staying off the witness stand and thereby avoiding the possibly impermissible material at the cost of surrendering the right to tell the jury his story and to challenge the priors ruling. And because of Ohler, the defendant who decides to take the stand must select between telling the jury on direct examination about his priors (perhaps incorrectly ruled admissible) so he does not seem to be hiding them from the jury, thereby forfeiting his appeal of the priors ruling, or failing to mention the priors during direct, thereby preserving the priors ruling for appeal, and thus empowering the prosecutor to surprise the jury with the apparently hidden material on cross-examination.
That does sound unfair. The defendant should be able to (a) take the witness stand, (b) avoid the introduction of inadmissible prior convictions (and appeal a ruling to the contrary), and (c) confess to the jurors about priors so they do not believe that he is hiding something from them.
Yet if we look a little more closely at the defendant’s behavior in (c), the unfairness might seem less clear. Why do defendants tell the jury about their prior convictions on direct examination rather than waiting until the prosecutor brings them up on cross? Is it to be straight with the jury and make sure they know to what sort of person they’re listening to so they do not make the mistake of trusting him too much? Hardly. They fight (through their attorneys) as hard as they can to keep the material out so that the jury never learns of it, from them or the prosecutors. Then, when they lose that battle, they run to the jury to say “I have something I need to tell you,” hoping to capitalize on the tendency to trust people who are transparent about their checkered histories.
Consider why we trust the defendant who says “I was convicted of crime X in year Y.” It is in part because we like when people don’t take the easy way out and hide their misconduct from us. The act shows courage and honesty. “She didn’t have to tell me that,” we might think, “but she did, because she is a straightforward, decent, and forthcoming individual.” That the defendant in fact had no choice about the revelation (because the judge already ruled it admissible) makes the appearance of transparency and honesty a con. The jury is morally crediting the defendant with a decision that the judge in fact made against the protests of the defendant.
As a general matter, self-revelation is disarming. If someone comes right out early in our relationship with him and tells us something shameful about himself, we are likely to do a number of things, all of which inure to the benefit of the confessor. First, we accept his account of what happened. We assume that he would tell the truth because no one made him say anything. We accordingly take a rather uncritical look at the account. Second, we like him for leveling with us. He could have kept his story a secret, we think, but he instead shared it with us to begin our relationship with honesty. And third, we become less attentive if we hear about the misdeed again later, as if we have been inoculated by the confession. If it is a jury that believes, likes, and biases itself in favor of the criminal defendant, then an acquittal becomes far more likely. Indeed, the revelation might turn out to be affirmatively helpful and not just neutral.
If revealing one’s criminal history is beneficial, then it seems less unfair for the rules of evidence to take that into account. If you bring up your own priors, then you waive the right to challenge the admission of the priors on appeal. That way, you have to choose between the benefit of misleading the jury about your wish to be transparent and challenging the judge’s ruling on appeal for revealing hidden (and inadmissible) information about you.
The law of evidence is largely an attempt to regulate people’s thought processes and behavior. The conduct of lawyers at trial is likewise an effort to manipulate the same thought processes and behavior. Lawyers offer arguments in which they themselves do not believe because those arguments will help maximize the ability to manipulate. And perhaps the greatest manipulators of all are the witnesses, including and especially the criminal defendant witness. It takes a special audacity for someone to get up in front of a jury with incentives to lie and perhaps a criminal history and say, “believe me, I’m innocent.” Those who can pull it off may have an intuitive understanding of human nature that the law of evidence cannot touch.