*1
Court of
Dec. *2 Jacobson, (Stephen K. Assistant Public Defender Richard Defender, Baltimore, brief), for Petition- Harris, on E. Public er. (J. Kamins, Attorney General Assistant
Rachel Marblestone Baltimore, brief), Curran, Jr., General, on for Attorney Joseph Respondent. ELDRIDGE, RODOWSKY, CHASANOW,
Argued before JJ., KARWACKI, RAKER, and C. BELL ROBERT (retired). MURPHY,* Judge, Chief
BELL, Judge. Davis, Tyrone
The issue which the petitioner, raises before propriety this Court is the of the trial ruling allowing court’s prosecution cross-examine a defense alibi witness re- failure, trial, garding to inform the or the ie., evidence, alibi, prosecution the defendant’s of which the witness was particularly, aware. More we ad- whether, and, so, circumstances, dress if under what an alibi silence is impeachment relevant that witness’s at trial. The Circuit Court for Balti- and, City permitted more the cross-examination in an unre- ported opinion, the Court of Special Appeals affirmed. We and, granted the writ of certiorari at the petitioner’s request follow, for the reasons that we too will affirm.
I. Because, evidence, rather than sufficiency the the trial, issue in this case to an pertains evidentiary ruling at it is petitioner, sufficient to recount that the who had been identi- him, fied as person the victim the who to rob attempted apprehended by police was the after a short chase. He was charged arrested and with the attempted robbery Earl Spain, a in posses- State correctional officer. Discovered his sion was a plastic toy gun, which the victim identified as the weapon attempted robbery. used guilty plea, Consistent with his not the petitioner denied defense, attempting to rob the victim. To substantiate he called Mr. Bey According Kabacca as an alibi witness. to Mr. Bey, petitioner was either within his or in sight his presence during the entire time when the victim claimed to have been accosted the petitioner. particularly, More he * J., retired, Murphy, participated hearing C now in the and conference of Court; being this case while an active member of this after recalled Constitution, IV, 3A, pursuant participated Article Section he also adoption opinion. in the decision and the of this in conver- and seeing petitioner engage the victim
testified to Bey’s According to Mr. separate occasions. sation on two occasion, only left the area after each the victim testimony, area, from away victim was return later. While the together. talked petitioner testified that he and occasion, police on second the victim returned When other men on the corner him and the petitioner were with did away, Bey. ran as Mr. Bey, following of Mr. the cross-examination
During occurred: day You court other
Q prosecutor] came to one [By day, this is that correct? besides A Right.
Q day was that? What
A Tuesday, 22nd. in the State’s
Q try speak anyone ever you Did about this case? attorney’s office or the A No.
Q just You wanted to come and— A mean— youOh case,
Q yes? About this No, coming I After, A here or in? told after came know, can, he flaneé, can tell him that say, you she know, me you use as a witness. court, to talk to
Q you you try came to still didn’t But after attorney’s office— State’s Objection. [Defense MR. ROGERS Counsel]: *4 Q Did you?
THE Overruled. COURT: question.
A I don’t understand the Why? this, happened. have Q say To this couldn’t I know why A don’t question. I still don’t understand go I have to to— would you Did to talk to
Q just question. try Let’s answer you Tuesday? when came to court on
335 procedure. A I understand the don’t you police? Did talk to the Q No,
A no. police? make effort to talk to the Q you Did A No. attorney’s to talk to the office?
Q you try Did State’s A No. Bey that Mr. knew the previously
The State had established met and the they the circumstances under which petitioner, addition, In they of time had known each other. length petitioner’s out that Mr. was aware of the brought State shown also when and the reason for that arrest. It had arrest Finally, the State’s cross- Bey acquired knowledge. Mr. informa- Bey’s examination revealed that the sources of tion flaneé and the man who was with the petitioner’s were day on the of the incident. petitioner
II.
A.
directive,
ordinarily
a citizen
is not
legislative
Absent
information to law
legally obligated
volunteer
See,
Silva,
438,
State v.
131 N.J.
e.g.,
enforcement authorities.
(1993)
676,
17,
202
(citing
Bryant,
621 A.2d
21
State v.
Conn.
Brown,
(1987));
451,
v.
11 Mass.
523 A.2d
465
Commonwealth
(1981)
denied,
288,
218,
416 N.E.2d
224
cert.
383 Mass.
App.Ct.
(Mass.1981);
Brown,
715,
62 A.D.2d
405
People
891
v.
921,
691,
aff'd, 48 N.Y.2d
(N.Y.App.Div.1978),
N.Y.S.2d
695
(1979);
54,
v.
50
People
425 N.Y.S.2d
alibi witness’s silence testimony. e.g. trial See United impeachment of his her (“[N]o (D.C.Cir.1972) 934, F.2d 938 Young, States v. 463 go did not can drawn from the fact that a witness inference be arrest of a they he learns have made an to the when could at a time for which he for a crime committed defendant Bordenkircher, v. 435 testimony.”); Whiteside provide alibi (1977). Indeed, whether, under what 68, 71 F.Supp. ... circumstances, pres- is inconsistent with “prior silence so reference to such silence impeachment by ent statements Anderson, 231, 239, 100 v. 447 U.S. probative,” is Jenkins 2124, 2132, 86, (1980), matters left to 65 L.Ed.2d 93 are S.Ct. its Rules of part to determine as a jurisdiction
each Evidence. Id. issue, that have considered the majority of the courts legally are not bound acknowledging that alibi witnesses
while
authorities,
enforcement
report exculpatory
evidence to law
this
flatly
prohibit
“no sound reason
[to]
conclude that there is
in all criminal
of a defense witness
type of cross-examination
921-22,
B.
determination,
i.e.,
whether
Critical to the relevance
inconsistent with his or her trial
silence is
pretrial
defendant,
that
the natural
re-
testimony exculpating
forward, at the earliest
witness be to come
of the
sponse
time,
exculpatory
regarding
information
with
possible
it to the
have and relate
he or she
situation,
Whether,
such
given
in the
case or
prosecution.
Brown, proof.
matter of
tendency exists is a
a natural
has
impeach
the witness
party seeking
at 225. The
N.E.2d
Id.
Initially this burden
regard.
proof
the burden
i.e., producing
foundation,
by laying
proper
can be met
the witness’s
which it could be concluded
evidence from
pos-
pretrial
with the witness’s
silence is inconsistent
of the defendant.
exculpatory
information
session of
foundation,
established,
is that
by way
to be
threshold fact
witness,
the witness was
assuming
response
the natural
evidence,
would have been
possession
*7
that
authorities. From
proper
information to the
disclose that
silence and
fact,
pretrial
between his or her
inconsistency
the
Silva,
at
be
621 A.2d
testimony may
or
trial
inferred.
his
her
lacks
“proof
not satisfied
of silence
If that burden is
and must therefore be excluded.”
value
significant probative
Hale,
176,
2136,
at 104.
at
45 L.Ed.2d
The trial court
case, an
whether,
particular
of a
under the circumstances
is rele
report exculpatory
evidence
alibi witness’s failure
State,
398,
175, 206,
v.
341 Md.
670 A.2d
see Grandison
vant,
702,
502;
Cal.Rptr.
234
Ratliff,
(1995);
Cal.App.3d
189
at
413
and, thus,
921-22,
778,
Dawson,
339
are,
and his or her trial
exculpatory testimony
one
indeed,
preliminary
That determination is a
inconsistent.
being
with
any inquiry
pursued
be made
that must
Hale,
176,
422
at
silence.
U.S.
regard
pretrial
to the witness’s
2136,
preferable
104. It is
that the
340 jury and that to law enforcement authorities may possess circum- facts and determine, the attendant upon must based defense, and the prosecution both the presented stances Dawson, testimony is credible. the alibi witness’s whether Thomas, 778; 595 921-22, at 406 N.E.2d 428 N.Y.S.2d at at 73. N.Y.S.2d requiring prelimi cases by the prescribed
The foundation
that the
consists of evidence
of relevance
nary determination
(1)
sufficient to
the defendant
relationship
had a
with
witness:
(2)
defendant;
to act to exonerate
motivate the witness
against
charges pending
nature of the
aware of the
was
(3)
defendant;
possession
that he or she was
knowledge
had
(4)
information;
knowledge of
had
information available
means
which to make such
procedural
at 921
428 N.Y.S.2d
authorities.
to law enforcement
Kelly,
v.
209
4,
People
n. 4.2
also
n.
An alibi witness’s information exculpatory ment, reporting for procedure of the authorities, that a witness other reasons proper pretrial is exculpatory the evidence unable to disclose may be that on the of tendency, part a natural not reflective of defendant; explains witness, simply it act to exonerate the to tendency. with that compliance act in inability his or her to defendant, the the alibi witness and between relationship only Not hand, relevance. independent has an on the other the witness’s inquiry inform the whether directly it does to the authori- report to the alibi response would be natural in is biased ties, to whether that witness it is also relevant but this factor Consequently, whether favor of the defendant. is the cross-examination court’s allowance of supports the finding made no reviewable, explicit the court has even when to it. respect with be- relationship than the broader a foundation
Requiring of knowledge to include and the tween the witness report and the means which predicament the defendant’s information, why, particular in this as well as reasons such alibi, quite a case, presents not disclose the the witness did the approach, that relevance situation. Under different prelim- the trial court’s depends upon silence pretrial foundational elements. as to each of the finding factual inary proceeds premise on majority view This is so because circumstances, because, pretrial under certain that, simply of possession a witness’s inconsistent with may silence be will be. evidence, always not follow that it it does exculpatory be deter- is a matter to of relevance The question Brown, out pointed basis. As case-by-case on a mined it would not be ... ... where be situations may There evidence to law to offer for the witness natural circumstances, the witness’s In these officials. enforcement his trial testimo- consistent with perfectly speak failure to that the individuals, may for believe example, Some ny. would futile. information be disclosure their Indeed, case prosecutor present conceded not information would have led disclosure the witness’s situations, In release. other the defendant’s charges be the defendant with may against not aware of important detail know that he excul- possesses sufficient Finally, individuals have information. some patory implicitly lawyer the defendant’s to discuss been told the case. pretrial silence is function
The relevance of the witness’s component to be laid and each required of the foundation noted, foundation involves a factual determination. As alibi between the defendant only *11 thus, and, is independently has relevance independent any tendency may to it have to regard admissible without impulse the of the alibi witness to have establish natural the to the The exculpatory disclosed evidence authorities. initially only have relevance requirements other “foundational” regard pretrial to the witness’s silence consti- with whether and, trial inconsistency testimony tutes an with witness’s thus, only conditionally They admissible. are not are relevant until, unless, court and the trial court issue before the pretrial that the is with decides witness’s silence inconsistent testimony permits in-court and the State to cross-examine is witness as to that silence. Once that determination made, credibility point on that issue. witness’s whether, when, of how and to whom Knowledge exculpatory evidence, the witness on that possessed by reported was bears issue, general credibility, as well as on the witness’s of both of which is entrusted to the ultimate determination trier of fact.
Thus, trial, lay a jury requiring the State foundation consisting of witness’s knowledge, his or including
nature and extent of that report means familiarity exculpatory with the which her authorities, defendant an lodges information where the hearing jury of the will be objection, hearing outside required. hearing will permit the trial court to make the required findings fact on each of the require- “foundational” ments, before pretrial the witness’s silence can proven. be Thereafter, evidence each of concerning those factors is inde- pendently admissible. To determine what infor- has, mation it, the witness when he acquired or she whether he or she it, is familiar with the means which to report whether non-disclosure was the result of a request by the counsel, defendant evidence, the absence of direct neces- sarily require will an credibility assessment of the witness. See 428 N.Y.S.2d at at 777 N.E.2d (“[T]he information during elicited this type questioning might well aid the trier of fact in its effort to determine whether of a defense witness is an accurate is, ”). instead, reflection of the truth or a ‘recent fabrication.’ ordinarily That is a jury matter for the to decide. But see State, 578, 590, (1996); Ebb v. 341 Md. 671 A.2d State, 95, 98-99, Watkins v. 328 Md. 613 A.2d 380-81 (1992).
III. (cid:127) agree We with those cases that hold that an alibi witness’s silence be relevant to that witness’s credibility. Moreover, we believe that the relevance of that witness’s pretrial silence must be as established a matter of foundation prior to the proponent impeachment evidence being allowed to inquire foundation, into it. It is enough of a *12 however, believe, if we the of proponent impeachment the evidence a relationship establishes between the witness and defendant, circumstances, the or such as to permit the trial court to conclude that it would have been a natural on impulse the of part the witness to have come forward with the exculpa- tory evidence. The requirement latter recognizes that wheth- er it would be natural for a witness with a particular relation- to ship the defendant to come forward also depend upon the circumstances at existing the time. The extent of the knowledge, witness’s timing the of its acquisition, etc. are matters, hold, we of defense or explanation, offerable the fact, defense, fully of the trier of and allowing for purpose the only Not does testimony. to the witness’s accurately evaluate impulse the natural of the directly evidence not relate to such evidence, but it is exculpatory to come forward with witness it is prosecution. Since readily evidence available not defense, appropriately it- readily available to the is more more by the defense. offered that, prosecution may before cross exam
We hold
the
silence, it
his or her
regarding
pretrial
ine an alibi witness
of establishing
a
The foundation consists
lay
must
foundation.
the witness and the
relationship
the existence of a
between
defendant,
it
circumstances,
be the natural
or
such
would
defendant,
to
exonerate the
a
of the witness
act to
response
that,
such
nature
if the
relationship
circumstances of
a
and/or
the
he or
possessed
exculpating
evidence
witness
it
to law
authori
immediately
would disclose
enforcement
she
to an
give
apparent
This is sufficient
rise
inconsisten
ties.
his or her
pretrial
the witness’
silence and
testimo
cy between
Hale,
In addition to the view, as which, majority under are characterized founda- are “attendant facts and circum- prerequisites, tional stances”, of credibility on the alibi the basis which Whether, when, and is to be evaluated. knowledge possible it for that wit- acquired making witness exculpatory enforcement authorities with provide law ness evidence, means procedure and his or her awareness so, tendency prove report do not tend natural doing thus, and, do rise to an give information exculpatory inconsistency; only between impeachable rise an defendant to such inference. gives witness Instead, did explain why those matters tend to issue, not, case disclose particular in the Indeed, only relevance. Conse- is their information. is best situated to the alibi evidence quently, proponent it have been natural why, although would present reasons *13 so, to do the alibi witness failed to disclose to the authorities information he or possessed she which tended to exculpate defendant. Such evidence is logically more and appropriately examination, presented on redirect to rehabilitate the alibi witness. To place that burden on the State would be both onerous and illogical. it,
As we see may inquire State into the alibi witness’s pretrial silence once it has established that relationship between the witness and the defendant is such that the witness would have a natural tendency disclose the exculpatory evidence he or she possessed to the proper au , thorities. Based on that inquiry, jury could infer that the silence is inconsistent with his or her trial testimony. The defense would then be attempt free to negate the inconsistency by explaining his or her silence. As Archer, court State v. 32 N.M. 255 P. (1927) opined: that, witness,
It is well if understood when he has an opportunity to speak, and where it would be natural speak ... fails to important make an disclosure which he stand, afterwards makes on which, it is a circumstance although susceptible explanation, if unexplained, tends-to impair credibility, and it is error to refuse cross-exami- nation of the witness to such develop facts.
Thus, we review the judgment of the
court to
circuit
determine whether the record reflects a relationship between
Mr.
and the petitioner
that would support a conclusion
that it would have been natural for
BeyMr.
to have contacted
and, therefore,
that his failure to do so
constitutes
case,
inconsistent
statement.
In this
the trial court’s
finding is implicit.
noted,
As previously
it will not be dis
turbed absent
Oken,
a manifest abuse of discretion.
327 Md.
(citation omitted).
IV.
contends,
The petitioner
record
“[t]he
does not
reflect
reason why
Bey would naturally feel obligated
*14
on Petitioner’s behalf.”
our attention
testify
to
He directs
to
several cases in which the alibi
close
witnesses were either
Ratliff,
friends or relatives of the defendant.
189 Cal.
See
(defendant’s
App.3d
Cal.Rptr.
sister and close
(defendant’s
friends);
family
Egerton,
He also arrest: speaking regarding petitioner’s her know, do, you help If that I anything there could was it matter, I he did then was to do because willing me. for Steve,'
Moreover, fiancé, petitioner’s petitioner’s arrest, divulged Bey day companion on together, arrest. Considered petitioner’s details for Mr. that it have been natural implicit finding court’s would authorities, disclose, information he possessed, petitioner, supported exonerate which could record. *15 sub judice are to those analogous
The facts of the case
McMath,
supra, alibi
considered in
330.
was a
station
He was
gas
witness
that case
attendant.
the defendant as a result
the defendant
acquainted with
the
of the
gas
night
at the
station. On
frequently being
charged,
was
the victim
robbery with which the defendant
and
witness
gas
went to
station
had the defendant’s alibi
the
crime.
the
police, reporting
Although
a call
the
the
place
to
being
spoke
police
to the
and witnessed
defendant
arrested,
had been
police
did not tell
defendant
he
being
gas
at the time that
the victim was
station
permitted
gas
court
station attendant
robbed. The trial
The Illinois
regarding
pretrial
be cross-examined
his
silence.
affirmed, opining,
court
appellate
intermediate
robbery
there
been a
and had even
Sutton knew that
had
of it.
soon as he had learned
placed
police
the call
as
arrived,
robbery
discussed
with
When the
he had
they
investigating it....
It was
them and knew that
were
knew
fair
on behalf of the State that man who
argument
...
something
would have mentioned
the defendant well
speak.
given
opportunity
when
We reach the same conclusion on before his to the defen- Bey’s testimony describing Mr. dant, circumstances, we conclude that and the attendant trial court did not abuse its discretion in him permitting to be cross-examined as to his pretrial silence.
The petitioner also contends that the State to prove, failed required as it was to do as a foundational prerequisite silence, cross-examining Bey concerning Mr. Bey was aware of the nature seriousness of the
charges against the petitioner3 or that he was aware procedural means to disclose information to the appropriate law enforcement authorities. Inasmuch as dowe foundational,4 not view these matters as but rather explana as During Bey, inquire cross-examination of Mr. the State did of Mr. explore knowledge regard and did what he had with to the nature and charges against petitioner: seriousness of the Q: [By you the Prosecution] When did find out that the defendant had been arrested? days days. A: A few later. Few Q: you? Who told guy, guy A: The I saw the that he was with. Q: Steve? A: Yes ... Q: arrested, you When Steve told you that the defendant was did police? call the No, with, with, get A: I tried to in touch his fiancé. Q: you everything happened— And did she tell that had Objection. A. Q: respect —with to this case? Objection Defense Counsel: COURT: Overruled. No, just A: up she told me he was locked and told me what he was *16 up locked for. colloquy, jury reasonably From this Bey the could have found that Mr. aware, only petitioner’s arising was not of the subject arrest out of the incident, knowledge but had of the reasons for that arrest. sure, 4. To be the witness testified that he did not understand the procedure exculpatory police. for disclosure of evidence to the It is also true that there is no other evidence in the indicating record the Nevertheless, contrary. jury obliged was not Bey. to believe Mr. It accepted explanation need not have that petition- and thus credited the er’s alibi. knowledge charges procedure Even if the witness’s of the and the for foundational, disclosing exculpatory petitioner evidence were did or, matter, object not on that basis for that to the State’s cross- Thus, along any examination those ground lines. he waived on the Maryland basis of which that evidence could have been excluded. See 4-323(a). Rule 350 did not why of the witness disclose
tory so, jury to the are matters addressed pretrial, information and credibility, in the alibi witness’s there evaluating to assist it required The court not simply no error. trial was was issues, not. And since no disputed those whether or resolve instructions,5 jury presume we were taken to exceptions complied with the jury adequately was instructed that was given. instructions it AFFIRMED.
JUDGMENT BE PAID BY THE TO PETITIONER. COSTS RAKER, J., opinion. concurs with ELDRIDGE, J., opinion. dissents with RAKER, Judge, concurring: I affirming because
I concur the result the conviction court although permitting that the trial erred believe witness, was of alibi the error harmless cross-examination State, See Rubin v. Md. a reasonable doubt. beyond State, (1992); Dorsey 578-80, A.2d Md. 689-90 (1976). 646-61, I not 670-79 do believe A.2d of evidence possibility was reasonable there to the contributed to the Bey’s failure come forward Petitioner must credit guilty. decision find We jury’s unlikely of common sense. It is jurors with modicum credibility jurors simply that Mr. lacked would conclude Attorney to the or the State’s go he did because judge give, did on its petitioner neither asked for nor the trial motion, significance the alibi an on the of own instruction 4-325(e), provides: Maryland See Rule which pre-trial silence. (e) may assign giving as Objection.— party error the failure to No objects promptly party record give instruction unless the on the an stating jury, distinctly the matter to which court instructs the after the request grounds objection. Upon of party objects and the objections hearing of the any party, the court shall receive out court, suggestion jury. appellate on its own initiative or on An however, cognizance any plain error party, may in the a instructions, take defendant, despite rights of the a failure material object.
351 354. This op. at Dissenting evidence. See exculpatory with the witness’s credibili- little, bearing on any, if testimony had for explanation plausible provided ty. The eyewitness, The to the authorities. forward failure to come observe to opportunity to his extensive testified Spain, crime, Petitioner and he identified of the at the time Petitioner time of the and at the immediately to street on the flight. to Petitioner’s testified officer arrest. The contrib- that this evidence possibility There was no reasonable guilty to the verdict. uted authori- go to an alibi witness the failure of
Whether value has probative any evidence has ties with Annot., See opinions. subject many appellate been by Case Show- in Criminal Witness Impeachment of Defense Testify, to 20 Failure or or ing Prior Silence Witness’ Refusal (1983). agree I with the observation A.L.R.4th 245 who people there are some Appeals that Special Court of exculpate in an effort rooftops from the would shout wrongfully has been they whom believe friend or a relative 719, State, 711, A.2d 639 Md.App. 99 accused. Williams v. however, (1994). notes, some 180, Eldridge Judge As appellate 354. Other Dissenting op. at would not do so. go not many might citizens recognized that courts have also fear, they feel or or because out of mistrust the authorities futile, instructed they because were would be their efforts See, e.g., attorney. forward the defendant’s not to come 920-22, 914, N.Y.2d 428 N.Y.S.2d People mean, (1980). This conflict does 777-78 silence never be however, pre-trial that an alibi witness’s Silva, 131 N.J. State v. for See impeachment. the basis (1993) court with Dawson (agreeing 621 A.2d value, no probative low may have although witness’s silence of cross- type this flatly prohibit reason exists sound examination). an fashioning appropriate difficulty test. crafted evidentiary test
I cannot subscribe record by the I that the is satisfied nor can find test majority, test, was not Indeed, the evidence under in this case. *18 fact, In hardly The alibi witness knew Petitioner. relevant. Petitioner, long Bey when how he had known Mr. asked testified:
Well, I him actually really I don’t know him. seen a few times. a week I seen him about three or four times. Within helped every First time is when he me across the street and him passing, other time I seen him in so I don’t know well. I when he that this is agree Judge Eldridge with observes of a hardly type relationship warranting finding of “natural at 355-356. impulse.” Dissenting op. Applying test, test, majority’s Dawson or the the cross-examination should not been In addition to the lack of a permitted. have Petitioner, relationship sufficient between the witness and of knowledge “reporting” procedure. witness lacked the Moreover, disclosed the information to Petitioner’s the witness fiancee, testify with an offer to at trial.1
I disagree do not that the nature of the be- key tween a defendant and an alibi witness is a factor determining whether the witness would have been motivated I exculpatory to contact the authorities to disclose evidence. believe, however, require- the additional foundational forth York in by Appeals ments set the Court New Dawson, 311, 914, 4, v. 50 N.Y.2d 428 921 n. People N.Y.S.2d 921-23, 771, 4, (1980), 406 N.E.2d 777 n. 778-79 constitute a adopted by majority today. better test than that See also 676, 451, (1987); v. 202 523 A.2d Bryant, State Conn. 499, Egerton, Commonwealth v. 396 Mass. Silva, (1986); 621 A.2d
486-88 State N.J. (1993). Dawson, In the Court of observed: Appeals cases, Attorney
In most
the District
may lay
“proper
type
foundation” for this
cross-examination
first dem-
of the
onstrating that the witness was aware of the nature
following
facts. When asked whether he tried
1. The record reflects
court,
Bey responded:
to talk to the
when he came to
Mr.
"I
procedure.”
pre-trial
don't understand the
This is not a case of
silence.
he
can tell him
testified that
told Petitioner’s fiancee that "she
can,
know,
you
he
use me as a witness.”
against
recog-
had reason to
charges pending
information,
a rea-
possessed
he
had
exculpatory
nize that
and,
motive for
defendant
acting
sonable
to exonerate the
informa-
was familiar with the means make such
finally,
to law
tion available
enforcement authorities.
n. 4.
428 N.Y.S.2d
n.
The Dawson about would why go be a witness explanations majority The test created with evidence. I better assist too limited. believe the Dawson test will far determining of fact whether the the trier is, “is an reflection of the truth or alibi witness accurate *19 ” instead, Id. 428 a ‘recent fabrication.’ N.Y.S.2d N.E.2d at
ELDRIDGE, Judge, dissenting: that, first time in a criminal this Court holds for the
Today, case, "witness’s failure to out law en- an alibi earlier search exoner- relay authorities and information that could forcement The bemay impeachment purposes. ate a defendant used for that of an alibi witness impulse” reasons the “natural majority police attorney prior to tell the state’s office would be or exonerating that he or has information testifying she on the negatively and failure to do so reflects I credibility. disagree. witness’s view, large society today, average my
In areas to do impulse may well be to have as little citizen’s natural as Conse- possible. with the law enforcement authorities case, credibility witness’s ordi- in a criminal an alibi quently, did not be the witness impugned solely should because narily Furthermore, prosecutor. contact previously police defen- holding today improperly burdens the majority’s a explain on the defense to by placing responsibility dant authorities. failure to contact law enforcement that with of evidence law there fully agree principle I amount to an whereby prior may silence are circumstances impeach be may statement and thus used inconsistent however, doubt, seriously I of the witness. usually include the earlier failure of an such circumstances witness, in a criminal to have contacted law prosecution, alibi information the de- given enforcement authorities and about cases, majority fendant. In the of criminal this failure is significant probative that it lacks value sufficiently ambiguous regarding credibility of an alibi witness. times, majority
In these with the vast of serious criminal crimes, violence, drug- cases street crimes of involving crimes, I is a question proposition related there average acquain- natural most of the defendant’s tendency, tances, or the go prosecutor forward to the with many peo- information. Whether this is because are or is due to a ple suspicious government, perceived drug- failure to stem the amount of violent and governmental crime, arrogant related or is due to abusive or conduct officers, minority of enforcement or results from a combi- law factors, Nonetheless, I nation of these or other do not know. to have as little to do with the as many persons want it possible. That this be unfortunate does not make less of a fact. majority adopts assumption in the lead expressed
ing People case of 50 N.Y.2d 914, 918-19, (1980), where the N.Y.S.2d Appeals Court of New York stated that “there exists wide *20 variety of situations in which the natural of a impulse person possessing exculpatory information would be to come forward in at the earliest moment order to forestall the mistaken Dawson, of a friend or loved one.” In the im prosecution witness was the defendant’s mother.1 The New peached alibi Appeals, holding impeachment York Court of that prior appropriate, mother based on her silence trial was recognized is a implicitly mother/child one, involving strong- the most and unique perhaps protective Although, the defendant also called his father and aunt as alibi witnesses, Appeals the Court of of New York held that the defendant did preserve prior the issue of whether these witnesses’ silence could be impeach testimony. trial used to their Thus, that, est bond between individuals. the Court assumed bond, as a result of this a would compelled mother feel to tell law enforcement authorities of information that would exoner- ate her son. in theory applied the Dawson case seems to contem- where,
plate perfect society every a as to rela- mother/child tionship, protective impulse exists that would cause a mother to give police prosecutors information to exonerate her child perfect society, to trial. We do not live however, as by daily indicated news stories that document the breakdown in family relationships, including rela- mother/child Moreover, tionships. respect strong even with mother/child I relationships, am about drawing dubious the inference that information, true, if exculpatory would almost be re- always layed police to the or to the state’s attorney’s office.
Moreover, even assuming that we should follow decision case, in the I Dawson would not extend principle of that case to relationships not as close as the relationship between The instant case illustrates of ex- fallacy mother/child. tending the principle announced under guise exists, that a “natural impulse” relationships include are not among of familial or personal relationships. closest witness, been,
The defendant’s alibi Bey, seems to have best, acquaintance defendant; an or casual friend of the there is no indication that he was a relative of the defendant Indeed, or an extremely close friend. from majority’s opinion all that can be discerned about the relationship be tween Mr. and the defendant they is that knew one another for a certain length time. This is hardly type relationship warranting the finding impulse.”2 of a “natural majority's 2. The own recitation of the facts of the instant case counters assumption go its that most alibi witnesses would at some point convey majority their information. As the states 334), (Opinion at "when the victim returned on the [to second occasion occurred], the area where the crime were with him and the petitioner away, Bey." on and other men the corner ran as did Mr. If *21 Bey Mr. ran from the at the time of the incident between the
356 696, v. Cal.Rptr. 502 People Ratliff, 189 Cal.App.3d 234
Cf.
(defendant’s
friend);
Bryant,
v.
(1987)
State
and
202
sister
(defendant’s
(1987)
mother,
676,
step
“Moreover, we the relevance of believe matter of silence must be established as a founda- evidence impeachment tion to the proponent it. It of a founda- enough allowed to into being inquire however, believe, impeach- if tion, proponent we defendant, why he would should it be assumed that ever victim and go compelled police? feel *22 ment evidence establishes a relationship between the wit- defendant, circumstances, ness and the or permit such as to the trial court to conclude that it would have a natural been impulse on the of part the witness to have come forward with the exculpatory evidence. The extent the witness’s knowledge, timing matters, the its acquisition, etc. are we hold, or explanation, by the of defense offerable defense Thus, majority the ultimately places the on burden the de- fense for explaining how relationship between the alibi witnesses and the defendant does not warrant an inference of non-credibility from inaction. prosecutor Once the has estab- lished that the alibi witness knows tangen- even tially, prosecution is then free to impeach the witness because the initially witness did not search out the attorney. the state’s majority The suggests that the witness by examination, be rehabilitated redirect having such as explain witness that he or she did not know how to contact the police or the state’s attorney office. majority The creates an unfair presumption favor of by the state requiring only that prosecutor show that there is a relationship between witness, and, the defendant and the as illustrated today, only that this relationship is that of a mere acquaintance. contrast,
In
jurisdictions
other
following the “natural im
pulse” theory
by
invoked
the majority do require that the
foundational criteria be met
proceeding
before
ques
with the
tion of whether the alibi
conveyed
witness
his or her informa
tion to law enforcement authorities
to
testifying. See
People v.
supra,
The from present alibi witness only was the ty indicates that means to inform procedural as to the lacking knowledge case but from prevented his information was the authorities of between the knowledge. colloquy explaining that lack Bey, majority, suggests cited attorney state’s necessary go procedure that Mr. was unaware very foundation police. importantly, More jurisdictions, in most be established required law enforce- which inform procedure by knew of the *23 pre- authorities, prosecution when the was undermined ment his lack of awareness and explaining from vented yes/no only to answer with allow the witness proceeded response. view, by permitting prosecu- court my
In the trial erred alibi witness impeach tor to to talk to the or the state’s “try did not circumstances, had this no attorney’s office.” Under credibility. bearing on
Dec.