By: R. Davis

A reader has asked, does Credibility matter in a criminal trial? My answer is that legally it does. However, in practicality, sometimes it doesn’t seem to matter. While I have never been a deliberating juror, trial experience tells me that jurors are the unpredictable factor when determining a trial’s outcome based solely on credibility.

One case I experienced supports juror unpredictably rather well when the sole determining factor was credibility. A man was accused of sexually abusing his adopted daughters. He maintained innocence in a case which lacked both physical or medical Evidence. Children were alleging the existence of computer videos and sexual toys in the home to support their allegations.

Multiple computer and household searches revealed nothing to support the allegations. Making this case stronger for the defense, the abuse was said to have occurred at home in the presence of multiple individuals, each who testified never observing any sexual impropriety. The Defendant also lacked any felony history.

During the first trial, eleven of twelve jurors voted to find the defendant guilty. The state chose to retry the case following a mistrial. The second trial resulted in all twelve jurors finding the defendant not guilty. The evidence nor the credibility of anyone changed between the two trials. But, the story doesn’t end there.

A second state subsequently charged this same defendant with identical offenses alleged to have occurred while on a family vacation. Relying upon the same evidence and all the same witnesses, the jury found the defendant guilty. Credibility nor evidence changed. What should have further bolstered the defense at this trial, the abuse was alleged to have occurred in a small camper with nine others present. Still, not a single witness. Only the unpredictability of jurors can explain these three different outcomes in essentially the same case.

Why credibility should matter in a criminal trial

Consider the above case, a typical he-said/she-said case. Based upon the reasonable doubt standard, in all practicality, a defendant should win every time.

There wasn’t any physical, medical or technical evidence to support the accusers allegations. Nothing indicated the defendant was untruthful in his proclamation of innocence. The computer, medical and household searches completely contradicted the accusers statements given to police and testimony given to the jury. Yet, that defendant is now in prison.

Legally, credibility matters

Experience tells me jurors sometimes view credibility different than the law intended. The Constitution created the right to confrontation, and with that, the right of cross-examination. The intended purpose of these rights is to subject the statements of an accuser, or any witness, to the truth finding process for the benefit of a deciding juror.

Furthermore, every jurisdiction has adopted rules of criminal procedure permitting either party to cross-examine and impeach an opposing party’s witness. This sets the foundation that the credibility of any witness was intended to be legally important.

The United States Supreme Court said it best that the right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation and helps assure the accuracy of the truth determination process. See: Dutton v. Evans, 91 S.Ct. 210 (1970). So, attacking the credibility of a witness is an integral part of the trial process.

Credibility can be altered

In a child molestation case, where an accuser is cross-examined (impeached) using prior inconsistent statements, the prosecution can call upon an expert witness to rehabilitate why the inconsistencies exist. Many courts allow the introduction of testimony known as Child Sexual Abuse Accommodation Syndrome. Once the court permits this form of testimony, it essentially nullifies the credibility flaws of the accuser which the defense has exposed. See: Brodit v. Cambra, 350 F.3d 985 (9th Cir. 2003). However, some jurisdictions prohibit the introduction of this syndrome because of its lack of reliability. See: State v. J.L.G., 234 N.J. 265 (2018).

Conversely, consider a case where a bystander witnesses a person steal a purse. At trial, the witness identifies the defendant who is of a different race than the accused. There is literature which supports that cross racial identification is problematic. See: King v. Conway, 698 F.3d 69 (2nd Cir. 2012). This theoretically permits a defense attorney to call upon an expert to explain why the eyewitness’s testimony may not be credible.

Bolstering credibility for the accusers in the case I discussed above, the prosecution was permitted to introduce testimony from the jurisdiction wherein the defendant was acquitted. Yet, the defendant was prohibited from informing the jury of his prior acquittal. While credibility should matter, credibility issues are sometimes obscured by judicial rulings which can have a detrimental impact on presenting “the whole truth.”

So, while credibility matters, credibility can be altered by the prosecution, defense or trial judge. There is an analogy that a trial is not necessarily decided by truth, but rather by the attorney who can convey the better story.

Criminal history can impact credibility

Just like rules exist permitting cross-examination, rules exist which may permit the introduction of a witness’s prior criminal history. In most instances, any witness or defendant who testifies having a felony background will lack credibility when the history can be exposed by rule.

I have heard defendants with a prior felony conviction tell me they want to testify to “tell their side.” Their perspective is that, “I took a plea last time because I was guilty. This time I’m innocent and I want to tell the jury that.” I have never seen this approach work. Placing anyone on the witness stand with a prior felony conviction seemingly never ends well. All credibility of the defendant or witness will probably evaporate after the introduction of any criminal history.

The legal reasoning why prior convictions are admissible is that jurors ought to be informed of what sort of person is asking them to take his or her word. A lack of trustworthiness may be evinced by a witness’s contempt for the laws he or she is legally and morally bound to obey. See: State v. Hebert, 158 N.H. 306 (2009).

How character evidence can affect credibility

Credibility can also be affected using character evidence. Character evidence is defined as testimony relating to the general reputation a person has in the community or neighborhood. A rule of evidence in every jurisdiction also governs the admissibility of character evidence.

During trial, both the prosecution and defense can introduce character evidence. The prosecution may even be able to introduce evidence of uncharged criminal acts involving the defendant. Such evidence is usually admissible by the prosecution to show a defendant’s motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. See: State v. Lacy, 929 P.2d 1288 (Ariz. 1996).

The defendant is permitted to rebut this evidence by introducing evidence to the contrary of that introduced by the prosecution. For example, if a defendant is accused of sexual abuse of children, the defendant has an equal right to introduce character evidence of sexual normalcy or appropriateness when acting with other children. See: Wheeler v. State, 67 S.W.3d 879 (2002).

The United States Supreme Court has long held that a defendant’s use of character evidence may be sufficient to raise a reasonable doubt as to guilt. See: Michelson v. United States, 69 S.Ct. 213 (1948). So, supporting character evidence can impact a jury when considering the defendant’s credibility.

Credibility does not matter after a guilty verdict

One thing about witness credibility, it does not to matter after a jury finds a defendant guilty. Once a defendant is found guilty and begins the appellate or post conviction process, a reviewing court is prohibited from analyzing the credibility of any trial witness or the defendant. This is because the jurors hold sole power to determine who is telling the truth or lying. See: Bruce v. Terhune, 376 F.3d 950 (9th Cir. 2004).

If you are unsure of what a direct appeal is, please read my post, What is a direct appeal?

My closing thoughts

Ultimately, my opinion is that credibility matters during a criminal trial. I believe it is a lawyer’s responsibility to convey a defendant’s credibility to the jury. It is equally as important to educate jurors to their role in analyzing credibility and understanding the concept of reasonable doubt during voir dire, opening and closing statements, and through the utilization of proper jury instructions.

I hope this response somewhat answers the question regarding credibility and offers a legal foundation as to why credibility should matter.

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