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Maybe it really is better to apologize than to ask permission…

Wednesday, November 24, 2010
posted by Douglas Keene

While we cannot all apologize as well as David Letterman, the importance of a good apology cannot be over-emphasized. We’ve written about apology in the context of litigation advocacy a number of times on this blog.  But now, two researchers have almost simultaneously come up with the same counter-intuitive findings about past bad acts and we think they are important to share. As it turns out, the notion that knowledge of prior bad acts weighs heavily on jurors as they make decisions about guilt is simply untrue (Allen & Laudan, 2010).

Allen & Laudan review the literature and the consistent practice of attempting to suppress information about prior convictions in the US criminal justice system. They assert that these decisions are made based on faulty interpretation of the data and that there is more evidence to suggest that suppressing information about prior convictions may actually lead unwittingly to the conviction of innocent defendants. The authors point to some intriguing statistics from a study completed by the National Center for State Courts:

“Specifically, juries convicted defendants whose priors were unknown to them about 76% of the time and they convicted defendants with priors known to them slightly less than 80% of the time.” [page 7]

“The acquittal rate for defendants with no prior convictions was almost twice as great as the acquittal rate for defendants with priors.” [page 8].

The bad news for defense attorneys [and defendants with a past history of convictions] is that juries are more likely to convict those with prior convictions but they convict whether they know about prior bad acts or not.  In sentencing, though, the prospect that they will view someone as incorrigible or a recidivist is potentially catastrophic.

At roughly the same time, Eugene Caruso published a study illuminating the strange fact that expected future offenses cause more intense feelings than actual past actions. What he found was that more negative reactions and more positive reactions were minimized when related to past events and maximized/increased when related to events that had not yet occurred, but would.

Given the data from the NCSC on what really happens in criminal trials, we know that if you have prior convictions you are more likely to be convicted—but it won’t likely matter if the jury knows about your priors or not. However, Caruso’s findings may shed a more perverse light on potential choices for politicians and corporations as well as white-collar defendants.

Caruso’s findings intimate that past bad behavior will be punished less severely than future misdeeds. Those who wish to behave badly may well find that they can do what they want (even if it has negative consequences—like say a dangerous but profitable modification to production processes) and then apologize if caught—knowing that their punishment, if any, will likely be less severe than if they announce their intentions at the outset.

Allen, R.J., & Laudan, L. (2010). The Devastating Impact of Prior Crimes Evidence – And Other Myths of the Criminal Justice Process. SSRN

Caruso, G.M. (2010). When the future feels worse than the past: A temporal inconsistency in moral judgment. Journal of Experimental Psychology: General

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