August 4, 2014
witness criminal history
A witness criminal history could affect a criminal trial.

One of the most important aspects of a criminal trial is the testimony from witnesses. Witnesses can either shed light on the crime itself or on the character of either party. They are carefully selected by prosecutors and defense attorneys and are often heavily prepared to contribute to the proceedings. This is why they are an invaluable part of the criminal trial.

When a witness testifies, he or she is obligated by law to tell the truth to the best of his or her ability. This allows the judge or jury to make the best possible decision on the outcome of the case. What if a witness has very valuable information on a case, but he or she also has a prior criminal record?

Let’s see how a witness’ past criminal convictions can affect the outcome of a case…

Using Criminal History to Impeach a Witness in Federal Court (Rule 609 of the Federal Rules of Evidence)

Both parties in a criminal trial can question the credibility of a witness. Prosecutors or defense attorneys can ask the witness questions about the case or introduce outside evidence to prove whether the witness is reliable in speaking about the details of the alleged crime.

When a witness has a past criminal conviction, this information can be made known to the court under several conditions. Rule 609 of the Federal Rules of Evidence states that evidence that a witness has been convicted of a crime can be admitted if:

  • The crime occurred within 10 years of the testimony;
  • The crime was punishable by imprisonment of more than one year;
  • The crime showed an act of dishonesty or fraudulent behavior; and
  • The value of this information outweighs the prejudicial effect that it might have on the defendant’s right to a fair trial.1

Does a Witness’ Criminal History Affect the Jury?

witness testimony
It is up to a jury to decide if witness testimony is reliable.

Because witnesses are going to be speaking directly to a jury in many criminal cases, it is important to understand how jurors perceive them. Character, bias, and credibility are all things that a juror is told to consider when listening to testimony.2 How does a juror perceives a witness if he or she knows the witness has a criminal past?

Recently, Trial Exhibits, Inc. conducted a focus group to test jurors’ perceptions of witnesses. The participants were involved in a mock trial in which a parent was seeking damages for pain and suffering after her son was killed in a car accident.3

When jurors saw the plaintiff’s sadness and grieving, they felt a great deal of sympathy for her. This led them to place greater responsibility on the defendant who was responsible for her son’s death. After measuring the mock juror’s reactions, a different group of participants were put in the same mock trial, but with one key difference: the mother was a convicted felon.

Interestingly, jurors did not feel that her criminal history affected the case. They still felt that she should be awarded damages because her son’s death was independent of her felony conviction.4

In another study, mock jurors read a case transcript. In one case, the defendant testified on his own behalf and did not have a criminal history prior to his trial. In another case, he testified but did have a criminal record. It also turned out in this study that jurors were not influenced by his prior convictions.

Do Juries Care about a Witness’ Criminal History?

Whether a witness’s criminal past will negatively affect the defendant’s criminal case is difficult to explain. In controlled studies, it seems that juries are not swayed by a witness’ prior convictions. When the witness’ crimes are independent of the current trial, the jury seems capable of keeping these issues separate.

If a witness’ criminal background is reflective of his or her character, it may have a more dramatic impact on the outcome of the trial. However, if their convictions were for more minor crimes or crimes completely unrelated to the details of the trial, it may have less of an influence.

If you were a juror, would a witness’s prior convictions affect your opinion on the case? Wallin & Klarich would like to hear your opinion on this complex issue.


1. [http://victimrights.wordpress.com/2011/09/26/use-of-criminal-history-to-impeach-witness-in-federal-court/]
2. [https://www.aclu.org/files/pdfs/drugpolicy/informant_trott_outline.pdf]
3. [http://www.trialexhibitsinc.com/blog/juror-perception-of-witnesses-the-influence-of-criminal-background/]
4. [Id.]

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Author: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

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