BY: The Exoneration Project

In Praise of the Convicted Criminal Witness

One of the realities of our work is that the witnesses we rely on often have had their own conflicts with the law. They are often convicted felons, maybe even many times over. This is true for the prosecution and the defense.

I can’t even begin to count the amount of times I’ve seen prosecutors address this “problem” to a jury, saying something along the lines of:

We don’t choose our witnesses. The defendant chose his witnesses when he committed this crime. Would we love to have three priest eyewitnesses in here? Sure, we would love that. But that is not the reality of the world the defendant chose to commit his crimes.

The premise of this whole argument is that those with criminal histories are less likely to tell the truth. They’ve been convicted of crimes, so they are more likely to be liars.

In post-conviction work, our witnesses choose us. When investigating or attempting to build a case, we can’t force anyone to testify under oath. We don’t have warrants or grand jury subpoenas. We knock on someone’s door, tell them who we are, and ask them if they will talk to us about our client’s case. We ask them if they would swear under oath to what they are telling us. And if they are willing to do that, we may be able to build our case and file in court.

Many of the witnesses that we are asking to help are convicted criminals. People presume that this fact makes them more likely to be lying. When considering the context of post-conviction litigation, I wonder if the converse is true. I wonder if it makes it more likely they are telling the truth.

Going through the criminal justice system as an accused defendant is not a pleasant experience. Almost universally, defendants do not feel they have been treated fairly. At best, it is a confusing experience. It is often filled with delay, uncertainty, and fear. At worst, there are all those things, plus punishment, isolation from family and friends, and perhaps being victimized by violence.

For witnesses who experienced this criminal justice system, and for them to come forth and get involved in another person’s criminal justice matter voluntarily–and swear to what they witnessed—that is pretty telling. Perhaps all the more so when they are standing up against the same government that has accused them before, maybe mistreated them before. That is pretty damn courageous. I’m not sure I’d be willing to do it.

Yet, I see it time and time again. I speak to a witness who has their own criminal history. I knock on their door. They invite me into their home. They tell me what they witnessed. They voluntarily agree to swear to it under oath. And they ask for nothing in return.

That is powerful. That is a person who may be more likely telling the truth.