WWDYT: The ethics of the post-trial jury reveal

This week’s Wednesday What Do You Think*: Is it ethical for a prosecutor to reveal to a jury after trial that the person they just convicted or acquitted had prior criminal convictions that were excluded from evidence?

As defense attorneys we more often than not represent clients with prior criminal records. Of course we always move to exclude those priors as irrelevant, more prejudicial than probative, etc., and probably most of the time we win those motions. Yet, whenever a court excluded priors it seems common for prosecutors to go out of their way after the trial to make sure the jurors know that fact — either to make the jurors feel good about convicting or to make them feel awful about acquitting. A juror who convicts and then learns the defendant had priors gets confirmation that his/her decision was correct and will be more likely to convict in the future because he/she will assume that there are bad things he/she is not learning about in evidence at trial. A juror who acquits and then learns the defendant has priors will feel awful about his/her decision and will be more likely to convict in the future.

Advocates of such practices argue that counsel for both parties (prosecution and defense) have every right to talk to jurors after the trial. Critics argue that this is an unethical ploy to poison that pool of jurors for the future.

So, people, it’s Wednesday, What Do You Think!?

*I’m just making this up.

(Apologies if this post appears twice in your feed reader. Wordpress and I are not getting along well today. Also edited to add “trial” in first sentence.)