Many attorneys are faced with the decision of whether or not to present a witness who could offer valuable testimony, but whose criminal history could negatively affect jurors’ perceptions of the witness. Weighing the consequences of placing such a witness on the stand can be a complex and anxiety provoking decision-making process even for seasoned litigators. Results of recent qualitative and quantitative research may offer guidance for attorneys faced with the determination of placing a questionable witness on the stand.

Recently, Trial Exhibits, Inc. conducted a focus group in which a major purpose of the research was to assess mock juror reactions to a plaintiff in a wrongful death suit. The plaintiff, a parent whose son had been killed in a tragic automobile accident, sought damages for pain and suffering. In a deposition viewed by focus group participants, the plaintiff’s emotional display evoked sympathy from participants, several of whom were brought to tears upon hearing a tormented mother discuss her depression due to the loss of her child. Juror sympathy toward a plaintiff is associated with greater attributions of responsibility toward the defendant (Bornstein, 1994), which is promising for the plaintiff’s case.

However, focus group participants noticed quickly that the plaintiff was not simply a parent of a deceased child, but was also a convicted felon. In the video-taped deposition, the grieving mother wore an orange jumpsuit and sat in a room lined with cinder-block walls. She was questioned repeatedly about her past crimes and convictions and the lengthiness of her criminal record became apparent. The plaintiff’s attorney was concerned whether a jury would view the plaintiff as a grieving mother or a greedy convict with little credibility. The concern was warranted.

The (perhaps) surprising finding was that focus group participants indicated that the plaintiff’s testimony was helpful to her case, despite her criminal history. A review of qualitative responses by participants indicated that the plaintiff’s criminal history was not viewed as related to the event in which her son’s life was ended, and she, thus, still deserved to be compensated for such a tragedy. The plaintiff’s description of her recent work toward rehabilitation most likely mitigated some of the negative views that a criminal history elicits among jurors. In this case, the benefits of presenting this plaintiff’s testimony appeared to outweigh the disadvantages.

Of course, experimental research testing the effects of witness criminal history on juror perceptions can tell us more about whether the awarded damages to the plaintiff would have been decreased by presenting her testimony as compared with a control condition of the plaintiff’s testimony being withheld from jurors. Few experiments addressing the question of whether to present a witness with a criminal history have been conducted, but one recent publication provides preliminary data on the subject. Jones and Harrison (2009) conducted an experiment in which a criminal case transcript was provided to mock jurors who read one of four variations of the case. In the first condition, the defendant did not speak on his own behalf. In the other three conditions, the defendant did take the stand. In the testifying conditions, the defendant had no criminal history, a criminal history related to the current charge, or a criminal history unrelated to the current charge. The findings of this more internally valid study mirrored those of the focus group research described above. Mock jurors did not appear to be influenced by the criminal history of the defendant. This was true even when the criminal history was related to the current charge!

The research on juror perceptions of witness criminal history, while providing some preliminary evidence that juries focus on the evidence of the case rather than the witness’s past, is still preliminary. Additionally, as attorneys are well aware, there are intricacies to each case that bring about a complexity of issues not likely to be assessed in controlled experiments. Therefore, the best advice to attorneys facing the question of whether to place a witness on the stand is to conduct a research study specifically designed to test jurors’ reactions to the particular aspects of their case. Focus groups or mock trials may be the best route of determining whether or not to place a risky witness on the stand.