Our criminal appeals system struggles to detect wrongful convictions, and its treatment of unreliable testimony deserves a share of the blame. An interconnected web of judicial dispositions makes convictions backed by testimony—no matter how marginal—largely impervious to review. When challenged, this imperviousness is explained away as deference to the jury’s role as lie detector. But this explanation doesn’t persuade. Given the volume of testimonial evidence mounted in modern trials, the mere fact of conviction provides little insight into the jury’s underlying credibility judgments.
Reformers overlook this. Instead, they blame the jury for mishandling bad testimony—and they call for expanding the scope of appellate review over questions of evidentiary quality. But this is a poor fix. By the time a defendant’s case arrives on appeal, critical information has already been lost. Reviewing courts lack the institutional capacity to recover it. And requiring judges to render credibility judgments diminishes the jury’s position as the finder of fact.
This Note proposes an alternative solution: Defendants facing unreliable testimony could request “credibility interrogatories.” Should the jury convict, the trial judge would administer a set of special questions asking the jurors to flag testimony they unanimously deemed too suspect to credit. This prophylactic would cabin the paralytic effects of bad testimony on sufficiency review, enable appellate courts to more accurately assess the prejudicial impact of error, and smoke out meritorious claims of innocence.
Best of all, credibility interrogatories achieve these benefits in a manner consistent with current law. While special interrogatories are sometimes said to be disfavored in criminal trials, previous commentators have overlooked the saving power of key procedural modifications. This Note draws on federal and state case law to sketch out an approach that is simple, effective, and protective of the rights of defendants and the function of the appellate system. By shining new light on an understudied instrument of judicial discretion, this Note is of likely interest to scholars and practitioners alike.
* J.D. Candidate, Stanford Law School, 2019. I would like to extend my gratitude to Lawrence Marshall, Joshua Kleinfeld, Robert Weisberg, George Fisher, David Sklansky, and William Laufer for their helpful thoughts, and to the editors of the Stanford Law Review for their careful edits. All errors are my own.