Article of Interest: Julia Simon-Kerr’s “Credibility by Proxy”

Back in November 2014, Julia Simon-Kerr, an Associate Professor at the University of Connecticut School of Law, did a series of guest posts on this blog (see here). Those posts were about one of my favorite subjects covered by the rules of evidence: impeachment, the process by which a party calls into question the credibility of a witness. Part of what makes this subject so intriguing is that it requires judgment calls over what acts of a person bear upon that person’s honesty, integrity, and credibility. Is a person with a violent past less credible than a person who has never harmed a fly? And what about a history or drug abuse? Prostitution? Gambling?

It is these questions and more that form the basis for Professor Simon-Kerr‘s new article in The George Washington Law Review: “Credibility by Proxy.” The article advances a number of interesting and defensible arguments, including this one:

From competency doctrine to today, the search for liars has treated certain forms of criminal misconduct or certain failures to comply with social norms as markers of a potential liar. These markers serve as de facto proxies for credibility, but rather than having a basis in science, they reflect social beliefs about the behaviors and statuses that render people unworthy of belief. This focus on “worthiness of belief” is intertwined with social hierarchies and related moral judgments that have shaped evidence jurisprudence. It has clear repercussions for witnesses whose race or gender or both trigger distrust or disapprobation. The few areas of conformity in the caselaw on credibility proxies—such as the notion that crimes of violence do not bear on credibility—make sense only in light of historical beliefs about honor and integrity. These contours do little to rescue impeachment jurisprudence from incoherence and unpredictability, and much to perpetuate troublesome links between status and credibility. 

Specifically, Professor Simon Kerr argues that

our impeachment system is racially-skewed because it places heightened constraints on testimony by black defendants and witnesses. The result is that many black defendants take pleas or do not tell their stories in court and that some crimes affecting minority communities may not be prosecuted. The parallels to outright race-based competency rules of the nineteenth century are striking and troublesome.

And that

we have created a system where it is more likely that a black defendant will be successfully impeached with evidence of a prior conviction than a white defendant and in which prostitution can be used to impeach a female witness. Yet there is simply no support for the notion that prior crimes introduced to impeach credibility do anything other than help juries make decisions about guilt in close cases.

I highly recommend the article to those interested in witness impeachment and how we view character and credibility in this country. Here is the article’s abstract:

Evidence jurisprudence assumes that impeachment rules are intended to help determine the truth of the matter by identifying liars. For example, a witness’s credibility can be impeached with evidence that she has a fraud conviction because in theory that conviction suggests she is deceitful and is therefore likely to lie under oath. Scholars, judges, and rulemakers have criticized this system of impeachment, demonstrating again and again that the rules are ineffective at identifying liars and lack any social science basis. Yet the impeachment rules endure.

This Article identifies the reason for these rules’ endurance in the face of overwhelming evidence: impeachment rules are not and never have been about identifying false statements in order to get to the truth. Instead they delineate which persons have the culturally recognized moral integrity or honor to be worthy of belief in court. In other words, impeachment rules enforce not a scientific but a status-based view of truth in which status markers, such as reputation and prior crimes, determine who will be deemed a probable liar. This fixation on status, in turn, has repercussions along lines of race and gender. This Article shows this using both historical and modern examples. The effect of this categorical error (confusing status with veracity) is to abandon one purpose of evidence law—truthseeking—in favor of the very different, and potentially contrary, goal of norm enforcement. The side effect is that it perpetuates systemic biases in the justice system. It may be that soon we will have some scientific way to identify liars. In the interim, though, we should abandon status as a proxy for credibility.

-CM