Here’s something particularly irksome: Plaintiff’s lawyers who instruct their clients not to answer deposition questions about criminal history because it is too embarrassing to answer. As defense lawyers, we all have our personalized deposition outlines, and most of them include questions relating to a plaintiff’s past lawsuits, worker’s compensation claims, disability applications, and of course, prior criminal history (including convictions and arrests).
“Have you ever been arrested?”
“Have you ever been convicted of a crime?”
These are standard questions. Oftentimes, plaintiffs reply in the negative, and any pre-deposition investigation has already confirmed that answer, and the deposition moves forward. However, diligent counsel typically already know the answer to this question, having done an investigation into the background of the plaintiff prior to the deposition. So, when these questions are asked, we know what the answer will be. Plaintiff’s lawyers may or may not be aware.
But in a number of cases in the past, plaintiff’s lawyers have actually instructed their clients not to answer these questions.
But on what basis? Sometimes, on the basis of “harassment,” although that’s a tough sell, because the rules of evidence specifically provide that a party can be impeached by a past criminal conviction. Questions about past convictions can lead to relevant impeachment evidence; and questions about arrests (which themselves may not be admissible) are appropriate in that they could lead to admissible evidence, i.e. subsequent convictions.
Sometimes, though, plaintiff’s lawyers will instruct their clients not to answer on the grounds that the answer itself is not admissible. What? How can that be? Deposition testimony is often not admissible. In pretrial hearings, we often fight tooth and nail over the admissibility of certain facts elicited in depositions. Simply because something is discussed at a deposition does not mean that it is later admissible at trial. We can explore topics at depositions that are technically not admissible at trial because those questions may be calculated to lead to admissible evidence. So, really, this is just another way to state the “it’s way too embarrassing” objection.
Once, at a deposition, I asked a plaintiff if he had ever been convicted of a crime. Of course, I already knew that he had been arrested and later convicted of a number of crimes. “Not in the last ten years,” he quickly and carefully replied, automatically suggesting that he had had a substantive discussion about the rules of evidence with his attorney about what may or may not be admissible. I couldn’t help but chuckle. Clearly, though, the fact that a conviction may be a decade old, and thus stale under the Rules of Evidence, does not prohibit the deposing party from asking about past arrests or convictions. The rules have exceptions relating to stale convictions, and the court has discretion under the rules to admit into evidence even a stale conviction into evidence. Thus, questions about past arrests and convictions can lead to the discovery of relevant admissible evidence even if the convictions at issue are decades old.
Further, there are other reasons why such criminal history might be admissible other than for impeachment. When a plaintiff claims that a particular injury or issue affects future employment opportunities, or when a plaintiff’s expert opines about the type of work that a plaintiff might not be able to do, former criminal convictions and arrests are important evidence factoring in to the Plaintiff’s future employment opportunities.
So, let’s stop with the instructions not to answer on criminal history. These questions are not abusive, they are not harassing, and they certainly may lead to relevant admissible evidence, impeachment or otherwise.