*1 аgree ruled it We the evidence and admissible. considered “any possi conclusion that Special Appeals with the Court struggle to avoid the prejudicial appellant’s effect ble probative clearly outweigh not so drawing of blood did the circuit court’s so as render value the evidence Thomas, an abuse of discretion.” of the evidence admission find no at We error. 899 A.2d 189. Md.App. APPEALS THE OF SPECIAL OF COURT JUDGMENT AND THE IN COURT AFFIRMED. COSTS THIS COURT BY APPEALS BE PAID PETITIONER. TO OF SPECIAL A.2d 63 HUNTER Maurice Galen Maryland. STATE of Term, Sept. 2006. No. Appeals Maryland. Court of March 2007. *3 Forster, Saccenti, (Nancy M. Asst. Public Defender S. Brian Defender, brief), petitioner. on for Public (J. Curran, Jr., Kleinbord, Joseph Asst. Atty. Brian Gen. S. Gen., brief), for Atty. respondent. WILNER,* BELL, C.J., RAKER, before
Argued GREENE, CATHELL, HARRELL, and JJ. BATTAGLIA * Wilner, J., retired, hearing participated in and conference of now Court; being of this after recalled this case while active member Constitution, IV, 3A, participated pursuant he also Article Section opinion. adoption in the decision and of this CATHELL, J.
This
arises from the
case
conviction
Galen
Maurice
Hunter,
for
petitioner,
burglary
one count of first degree
(2002), §
under Maryland Code
6-202 of the
Law
Criminal
Article1
which
years
for
he was sentenced to 15
prison.
an unreported opinion, the Court of Special Appeals, relying
State,
(1999),
on Fisher
Md.App.
“1. In a criminal is it error fоr the allow judge to prosecutor to ask the police defendant whether were lying? witnesses
“2. If the answer to the question did preceding yes, of Special Court err in error Appeals holding that the harmless, particularly where the were underlying facts contested, the jury sent out notes suggesting were issues, with some of the struggling factual prosecu- closing argument augmented tor’s prejudicial effect the error.” that,
We hold under the circumstances of the instant erred, trial judge law, as a matter by permitting the State to ask if the defendant other witnesses were are lying. We say, beyond doubt, unable to a reasonable that the error did not affect verdict.
I. Facts in April 10, 2002, Late the afternoon of Dorothy Johnson returned to her 6707 home on in Yataruba Drive Baltimore “ § Burglary degree. 1. 6-202. in the first (a) person may dwelling Prohibited.—A not break and enter the of another with intent to commit theft or a crime of violence. (b) person Penalty.—A guilty felony who violates this section of the burglary degree of subject in first and on imprison- conviction is to exceeding years.” ment not on front that a basement window
County. discovered She open while she was at work. of her house had been forced house, engagement she found that an her inspecting After cameras, DVD’s, three player, a ring, combination DVD-VCR CD’s, band, phone a were food, money, wedding and cell missing. 10, 2002, Ms. April petitioner pawned day,
On that same to the ring and other items not related engagement Johnson’s 1,May On or about Yataruba Drive address. Yataruba burglary for the petitioner was arrestеd tried, in the instant and related crimes.2 He was Drive other County for Baltimore on October the Circuit Court charge degree. the first burglary on the trial, that petition- testified manager pawnshop At retrieved the items usually er customer who long-time was manager was unaware pawned. pawnshop he petitioner for anything to to look police coming pawnshop any on occasion. pawned prior had after was petitioner Knox testified that Tyrone Detective burglary he to the at 6707 custody, into confessed taken petitioner Knox also Yataruba Drive. Detective testified it pointed to Drive and the detectives 6707 Yataruba directed the burglary. out as location of trial, at 6707 committing burglary At denied petitioner confessing burglary also to the Yataruba Drive. He denied examination, petition- out the address. On direct pointing he possession ring that he came into when er testified Hairston, friend, pawn- David outside the encountered an old way he on his into the According petitioner, to shop. gave own when Hairston pawnshop pawn to some his items proceeds. for half of the pawn exchange him the ring name that he Hairston’s provided Petitioner testified police. burglaries petitioner which appears also was arrested for other
2. It appeal. giving to this It is unclear part were not a of the trial rise pawned by petitioner other items were related record whether the this any burglaries. of those *5 portions The relevant of the State’s cross-examination en- sued: Huntеr,
“[The Mr. it is your testimony State:]: then that just lied, Detective Knox who came here and testified right? I say
[Petitioner:]: didn’t that. Objection.
[Defense Counsel:] I’m not going [Petitioner:] even he lied. say Hunter, Mr. just [Defense Counsel:] moment. I’ll
[The withdraw the question, State:] Your Honor. [The He Court:] answered it.
[Defense Move to Counsel:] strike. no, [The Court:] Move to strike the fact that he says he didn’t say that. It’s okay with me. I’ll strike it. if
“[The And State:] detective to testify were Hairston, Mr. his name was him, never brought up to would be a lie? Objection.
[Defense Counsel:]
[The Court:] Overruled.
[The Would State:] that be a lie? I—to
[Petitioner:] be honest you, with I him told numer- ous people, numerous names.
“[The You State:] never told police how you broke house, into that right? No.
[Petitioner:] [The And you State:] definitely told them about Mr. Hairston? Yes.
[Petitioner:] if [The State:] So the detective were to testify that Mr. Hairston’s name—that you never brought up Mr. Hairston’s him, nаme to that would be a lie? answered, Objection. Asked Counsel:]
[Defense *6 Your Honor. No, overruled. Cross examination.
[The Court:] I it a lie. guess would be [Petitioner:] Sir, you person- or didn’t personally don’t “[The State:] against have Detectives Ramsuer Knox ally anything incident, you? did before this No, I didn’t even know them. [Petitioner:] personal have they anything So wouldn’t [The State:] they? would against you, I not. would assume
[Petitioner:] think of a reason that would Can’t [The State:] in you? come and lie about you. Couldn’t even tell [Petitioner:] that you actually isn’t true were “[The State:] degree burglary? convicted a first Yes. [Petitioner:] And also of a misdemeanor theft? State:]
[The Yes. [Petitioner:] your today? But the truth telling
[The State:] Yes, I’m the truth. telling [Petitioner:] lying? And detective was [The State:] telling I’m truth.” [Petitioner:] Following testimony, the State called Detective petitioner’s Deteсtive Ramseur as a rebuttal witness. Ramseur testified his had made statements to him about involve- petitioner Yataruba, in a at 6707 that he out that burglary pointed ment and, burglarized as one he had to the best address recollection, petitioner never mentioned name Detective’s David Hairston.
Then, in its closing argument, State made reference to conflicting petitioner Detectives and separate three occasions:
“You would have to believe that both of these detectives came in here and lied to you.... You would have to believe detectives[,] in these some mass to convict conspiracy Huntert,] Mr. you. have come here and lied to gentlemen, “Ladies and you would have believe that those two detectives are the biggest liars the world order to believe Mr. story.” Hunter’s Following closing arguments, the trial court charged the jury with instructions jury began and the at 4:20 deliberate *7 (the p.m. began trial shortly after lunch that same day). The jury concluded its deliberations at 7:40 p.m. night. that same In its deliberations, three hours and twenty minutes of jury sent four notes to trial court. The first question was about pawnshop tickets and a not in police report evidence. jury, Then the at 5:05 p.m., wanted to petitioner know whether had a signed statement or confession. The existence or non- existence of a signed confession was not evidence.
jury’s third note came out at 6:45 p.m. suggested and that the jury could not reach a unanimous verdict. The trial court brought jury into the courtroom and them encouraged try and reach a verdict. At p.m., jury 7:05 a asked confusing question about possession of stolen property which the court responded that it did not understand the question. No further communications between the court and until, jury place took at 7:40 p.m., returned a verdict finding petitioner guilty burglary in the degree. first
II. Standard of Review “ context, a criminal we ‘will not reverse for an by error the lower court unless that error is “both manifestly ’ ” wrong State, and substantially injurious.” Lawson v. 389 570, 580, (2005) 876, Md. 886 A.2d 882 (quoting Berman I.W. Bros., (1975) v. Props. 1, 11-12, Porter 276 65, Md. 344 A.2d 72 588 Rotwein 434, 437, 258, A.2d Bogart, v. 227 Md. 177
(quoting (1962))). said if an appellant have often 260 We case, “unless a criminal a re- establishes error petitioner court, record, independent of the upon its own review viewing doubt, belief, a beyond to declare reasonable is able a verdict, cannot way in no influenced suсh error be error v. Dorsey is ‘harmless’ and reversal mandated.” deemed State, see State v. 665, (1976); 659, A.2d 638, 276 Md. 350 678 (2006); Lawson, 388, 374, 378, 394 Md. 906 A.2d 381 Logan, State, 882; 145, Spain v. 581, 386 Md. Md. at A.2d at 389 886 State, Archer 25, (2005); 329, v. 161, 383 Md. 872 A.2d 34-35 State, Merritt v. 210, (2004); 17, 31, 361, A.2d 367 Md. 859 229 (2001). 756, Thus, upon criminal a 785 A.2d 765 manifestly wrong substantially that an showing error and, court judgment we will of a lower injurious reverse if the error harmless we we will find to be are generally, only the error did not beyond convinced a reasonable doubt that influence the verdict.
III. Discussion
A.
“In
jury,
a criminal case tried before a
fundamen
credibility of
and the weight
is that the
a -witness
principle
tal
-within
solely
accorded
are
to be
the -witness’
State,
266, 277,
v.
Bohnert
Md.
jury.”
province
State,
v.
(1988)
675,
Battle
685,
287 Md.
(citing
A.2d
Ware
(1980));
414 A.2d
360 Md.
678-
*8
State,
Conyers v.
764,
(2000);
132,
679,
354 Md.
759 A.2d
779
910,
(1999).
153,
A.2d
the rule is
it is
Generally,
729
921
statement,
a
go
jury
for the
to
to
to the
permit
“error
court
belief,
to
that witness
opinion
person
or
of another
the effect
Bohnert,
277,
truth or
Petitioner, while relying supra, argues that it error for trial to permit prosecutor court ask a if he is that other contending defendant witnesses were lying. points He also to on an out-of-state State Maluia, 20, 24, (2005), 108 P.3d Hawai’i for provide reasoning argument: further this questions, ‘were-they-lying’ “Such referred to as questions, (1) are improper following they reasons: invade the province jury, as determinations of are for (2) jury; they argumentative probative are and have no (3) value; create a risk that they jury may conclude that, defendant, it acquit order must find that a (4) lied; has contradictory they inherently witness are un- fair, it is nor possible as neither the defendant contradictory deliberately has misrepresented witness (5) truth; create a ‘no-win’ situation for the if defendant: the defendant states that a contradictory lying, witness is not the inference is that the defendant is if lying, whereas the defendant states that the witness is lying, alienating the defendant risks if (particularly officer).” the contradictory witness is a law enforcement *9 590 Evidence Maryland relies on the additionally
Petitioner Handbook to demonstrate “were-they-lying” questions that impermissible: are disapproved that have been techniques
“Impeachment impropriety most attempted. frequent should be testimony. of other arguing seems to involve that Defendant, Dueright say you heard Officer Q. Mr. falling and down staggering stumbling and you were to the intersection. back you when wаlked A. Yes. lying? that he was
Q. you saying Are American objectionable. interrogation totally is “Such Herman, 312, 314-15, 54,A. 55 v. 171 Stores Co. 166 Md. (1934).” Handbook Evidence Jr., § Murphy, Maryland F.
Joseph
Bohnert,
supra,
(3d.l999).
by
For the reasons stated
on
in his treatise
Maluia
Court,
Judge Murphy
and Chief
bright-line
evidence,
urges
adopt
this Court
petitioner
“were-they-lying” questions.
prohibiting
rule
scope
and
that control over the extent
Respondent argues
traditionally been left
of witnesses has
cross-examination
that this
case law
judges
of trial
Court’s
the discretion
Moreover, ac
“were-they-lying” questions.
prohibit
does not
Special Appeals’s
the Court of
cording
respondent,
State,
(1999),3
Fisher v.
736 A.2d
Md.App.
of “were-
addressing the issue
squarely
case in this State
lone
as a
them to be asked
expressly permits
they-lying” questions,
testimony.
contradictory
of highlighting
means
Bohnert,
supra,
controlling
petitioner
with
agree
We
case
our discussion of the
begin
case and will
present
in the
"were-they-lying” questions
this Court in
was not before
3. The issue of
(2001).
A.
sir.
”
Q.
Is that correct?’
Stores,
314,
A. at
agreed
American
Bohnert,
on American Stores and
relied,
supra,
part,
these circum-
Thompson
controlling
and is the
case under
Bohnert,
14,
Alicia,
of
age
a child under
stances.
Bohnert,
boyfriend,
mother’s
of sexual abuse.
accused her
to show that Alicia
tending
There was testimonial evidence
Bohnert and
may
improper
accusing
have had
motivations
physical
support
allegations.
there was no
evidence to
her
on the
Accordingly,
hinged solely
“the State’s case
270,
at 659. The
of Alicia.”
“It jury’s on the determination depended outcome of this case witnesses, the accuser and credibility of the of two ‘expert of the opinion It is clear that the equally accused. significance abuse’ was utmost in the field of child sexual If were be- allegations in that the child’s determination. of the lieved, corpus establish both the delicti they would of Bohnert.” charged agency crimes and the criminal trial, repeatedly closing argument In its State Id. witness’s testimo- importance “expert” emphasized effect that the child was abused. ny to the circumstances, concluded, that the investi- under those We for two reasons. The first testimony was inadmissible gator’s on infor- testimony was based “expert’s” reason was that the and was not based solely mation taken from child Id. at objective medically recognized syndromes. tests or Thus, court its discretion A.2d at 662. the trial abused her investigator expert as an because qualifying when guess abused was a mere conclusion that Alicia had been opinion was inade- groundwork “expert’s” because the supported. Id. quately “expert’s” testimony
Secondly, we also held that the witness, “a expert as a matter of law because inadmissible otherwise, opinion on whether he believes may give a witness relat- telling Testimony witness is the truth. from be as a ing rejected to the another witness is to ” *12 added). (emphasis matter law. Id. at 539 A.2d of that Alicia was investigator gave opinion her When abused, it was: to a her that the child was by declaration
“[Tantamount telling lying.... import the truth and that Bohnert was The was clear—Alicia was credible and Bohnert opinion Also, opinion only not. could be [investigator’s] was of by allega- reached resolution contested facts—Alicia’s tions and Bohnert’s denials.” 278-79, investigator’s testimony
Id. at
With
Fisher,
intermediate
court’s discussion in
is
appellate
supra,
misplaced.
In that
three adults were accused of abusing
a minor child who
in their house.
killing
resided
One
stand,
sought
the defendants took the
while another defendant
impeach
credibility
by asking
her
on cross-examination
testifying
The
defendant’s coun-
“were-they-lying” questions.
objected
sel
to those
and the trial court overruled
objections.
testifying
argued
those
defendant’s counsel
the trial court that “were-they-lying” questions
imper-
were
trial court disagreed
missible undеr Bohnert. The
and distin-
“
guished
grounds, saying:
Bohnert on factual
‘Bohnert talks
giving
about
an
witness
an
that a witness
expert
opinion
[ ]
” Fisher,
who testified at trial was truthful or not truthful.’
Md.App. at
The Fisher
our
holding
misconstrued
Bohnert,
clearly
Bohnert.
we
stated that there were two
reasons for
that the trial
concluding
judge erred:
*13
of the trial
the discretion
concerning
“Our discussion
assumptiоn
on the
testimony was
expert
judge regarding
in the
‘expert
an
in which
circumstances
may
that there
be
opinion
an
properly
could
voice
sexual abuse’
field of child
Then the admissibil-
sexually abused.
a child had been
that
discretion
the sound
would be within
testimony
of such
ity
portion of
previous
the
[in
concluded
judge.
of the trial
We
case,
of this
in the circumstances
opinion]
the Bohnert
of discretion.
in
was an abuse
opinion
the
evidence
admitting
however,
reason,
concluding
have
alternative
We
case,
erred
that,
judge
this
the trial
the circumstances
of
was
opinion
think that the
admitting
opinion.
We
as a matter
law.”
inadmissible
of
added). As
276-77,
(emphasis
312 Md. at in Bohnert above, reversal first reason for our mentioned admitting when discretion judge’s to do with the trial hаd reason, one relevant testimony and the second expert case, judge’s trial erroneous had to do with the the instant law, decision, “were-they-lying” ques- to admit as a matter of was Special Appeals of tions. distinction Court Whatever Bohnert, and our does make its Fisher trying to between questions because the present in the circumstances apply category into the second of clearly fell by asked the State as a matter of law. impermissible and were questions Bohnert was asked five Returning present petitioner to the him position characterizing in a put questions five “were- other He was asked two witnesses. impermissible were as questions These they-lying” questions. province encroached on the a matter of law because jury by аsking petitioner judge i.e., asked: “And testimony, their he was weigh detectives and petitioner also asked lying?” questions the detective by resolving contested facts. place to stand in They Moreover, overly argumentative. were questions that, conclude in order to jury might the risk that the created police that the officers it would have find acquit petitioner, possible it is further unfair because questions lied. The were deliberately nor the officers petitioner police that neither the truth. misrepresented petitioner These forced *14 way to choose between in a that answering would allow the jury lying taking to draw the inference that he was or the risk alienating jury by accusing officers of police lying. Therefore, the trial court erred in allowing the Statе to ask petitioner “were-they-lying” questions. prosecutors When ask “were-they-lying” questions, especially they when ask them of defendant, a they, always, almost will risk reversal.
B. established, “Once error is the burden is on the State to show that it beyond was harmless a reasonable doubt.” 646, 658-59, Denicolis v. 378 Md. 837 A.2d (2003). Dorsey said in that: We procedural bound,
“An evidentiary error a trial is fashion, balanced, some to affect the delicately decisional process. The of a abnegation particular upon rule which the defense to rely may damage intended often inflict more than a initially apparent; may meritorious line of defense be result; may abandoned as a important witness be called; are often strategies forsaken. The future course of the trial must inevitably changed be to accommodate the It is the rulings impact ruling upon made. of the erroneous the defendant’s trial and it upon the effect has the decisional process which is of primary concern....
“Indeed, beneficiary requiring such error dem- onstrate, doubt, beyond a that reasonable the error did not contribute to the verdict—and is thus ‘harmless’—is consis- tent with required the test criminal cases for a resolution of guilt.” 657-658, Thus,
276 Md.
The argues judge’s State that the trial instructions jury, telling them that were the sole judges credibility, “overwhelming” and the evidence that petitioner this allow factors to sufficient are burglary committed disagree. harmless. We the error was to conclude Court “were-they-lying” of the effect possible prejudicial The the combination number and by the is demonstrated questions them themselves, emphasis the repeated questions of the and, importantly, most argument, closing during the State’s jury sent its deliberations. during jury’s behavior for additional court. Three asked the trial notes to four One of certain information. or clarification information may have been ticket and pawnshop to the related the truthfulness had about to a concern related for a ring pawned he had testimony that petitioner’s signed had petitioner to whether the related friend. Another to the conflict referring confession, have been may which *15 respect in testimony the petitioner’s officers’ and the between thus, may and, jury question this had confessed to whether he questions. “were-they-lying” to the related directly have property, possession to stolen respect jury’s question, the by pawning concern that juror’s to a have related may friend, must have assumed petitioner the for a property stolen jury the sent one Additionally, was stolen. property that the to ability their they doubted judge the trial telling note say, beyond are unable verdict. We reach a unanimous by affected the “were- doubt, was not reasonable Therefore, trial court’s error they-lying” questions. not harmless. allowing questions Conclusion IV. that, the circum- reasons, under we hold foregoing For the erred, matter as a judge the trial present of the stances if other petitioner law, the State ask by permitting to the defendant Thе error was harmful lying. witnesses were doubt, that say, beyond a reasonable are unable to because we not affect the verdict. the error did APPEALS THE OF SPECIAL OF COURT
JUDGMENT THAT COURT REMANDED TO CASE REVERSED. THE JUDGMENT TO REVERSE INSTRUCTIONS WITH BALTIMORE COUNTY FOR THE COURT OF CIRCUIT AND TO REMAND THE CASE TO THAT A COURT FOR TRIAL. IN NEW COSTS THIS COURT AND IN THE COURT OF SPECIAL BE PAID BY APPEALS TO BAL- TIMORE COUNTY. BATTAGLIA, JJ.,
HARRELL and dissent. Dissenting Opinion BATTAGLIA, J., by HARRELL, which J., joins.
I respectfully dissent. Petitioner,
In
Hunter,
this case the
Maurice Gale
asks that
adopt
we
a blanket rule prohibiting
“were
lying” ques-
tions directed to one witness with
regard
another;
majority
does so with its holding that such
province
encroach the
I
jury.
disagree. As
Jr.,
E.
Judge
Moylan,
Charles
so
cogently stated
Fisher v.
Md.App.
(1999),
second-degree child and conspiracy to commit Rita, child abuse of Utley’s daughter, challenged permissi- bility of the following colloquy:
Q: saying You remember to the nurse at Northwest Hospi- *16 tal, that you responsible felt for Rita’s death?
A: No.
Q: that, ifSo a nurse testified to that nurse would be lying? Mary Utley]: Objection. for
[Counsel The Court: Overruled.
I A: don’t’ saying remember that to the nurse.
Q: you Would ever let run night around at when [Rita] she was a small child? Objection. Utley: for Mary
Counsel Overruled. Court: A: No. day? the other testifying Deiner You Mrs.
Q: remember Yes, I A: do. So, the truth as well? telling she not
Q: A: Rita— Honor. Objection, Your Mary Utley]: for
[Counsel The Court: Overruled. that even, believe, walking age. I don’t
A: Rita wasn’t was she Georgia, Well, [your daughter] other Q: how about running around? Georgia walking, lying was she about like said, night around at I would walk just A: As children, walking I Rita was don’t believe again, normal but out. said she was age at the she telling not the truth? then Mrs. Deiner was Q: So A: Yes. Walsh, said, say her Now, you heard
Q: Detective she died, telling not Rita was she laughing were after you truth? the truth. telling
A: was not She Q: And Detective Hill— the truth. telling
A: He was not Hill Detective question yet. I ask the Was Q: didn’t you you laughing he said were telling the truth when joke? a big Rita’s death was thought the truth at all. absolutely telling A: He was detectives, them have ever met you of these Q: So both before? building. and at the Only hospital
A: at the would he why these detectives Q: any You know of reason jury? gentlemen to the ladies and Your Honor. Mary Utley]: Objection, [Counsel *17 The Court: Overruled.
A: I don’t know. All I know is that I say they didn’t what said I said. So,
Q: they being then were not honest the jury? with A: That’s correct. Rose,
Q: your daughter, other said that she never locked you in the room? Mary Utley]: Objection, for Your Honor.
[Counsel The Court: Overruled.
Q: Is Rose about that? lying Yes, A: she is.
Q: people lying Mary Utley? So all these are but A: That is correct. 149-151, (emphasis
Id. at
What was asked to do was either 2) acknowledge her falsity own look foolish in denying it. Once the final rhetorical all question people “So these asked, lying Mary Utley?” are but the skillful cross- turning examiner would have and walking disdainfully been away waiting without for an answer. The answer no longer mattеred. 152-53,
Id. at
A. sir.
Q.
Is that correct?
the trial court’s
upheld
166
Q. true, [employee] struck the assuming be whether not pipes pipes? radiator did strike the radiator truth, Well, I he did or A. to tell the do not know whether he and at at one time said did because not. another time said he did upon A.2d at the well-estab-
178 Md. at based lished rule that:
if any there is conflict between the witnesses as to facts on expert opinion sought, expert which an can- witness not, he has heard the asked to although testimony, be base because, opinion testimony, his on that to reach his conclu- sion, necessarily province he must invade the of the jury pass weight witnesses and the of the evidence.
Id., added). § quoting (emphasis Am.Jur. present conversely, Hunter was not asked assess the nor credibility, opine Detective’s about evidence.
In Bohnert v.
the defendant
was accused
sexual
A
Department
investigator,
recog-
abuse.
Social Services
trial court as
by
“expert
nized
the field
child
*19
abuse,”
sexually
sexual
testified that
the child had been
in
abused
contradiction to the defendant’s denial. We held
expert’s testimony
the
should not have been admitted
Thompson,
because,
province
as in
it invaded the
of the jury
expert to
by requiring
conflicting
the
resolve
evidence and also
of
credibility
to assess the
the child and the defendant.
312
278,
Thompson
Obviously,
Md. at
Many
addressing
they
of our sister states
the issue of “were
lying” questions clearly
recognized
propriety.
have
their
In
Hart,
State
(2000),
303 Mont.
[T]he defendant lied, the victim she attacked me” or the testifying defendant is, that “she attacked me” purposes jury’s role determinations, sit- irrelevant. either credibility making more uation, which witness is must still decide jury credible. distinguish they the “were The court went on
Id. at 923. comments on an accused’s prosecutor’s from a lying” questions jury of the and ... province invade the “which guilt, do[ ] jurors may simply ‘adopt ... its function because usurp[ ] views’.” Id. prosecutor’s Johnson, 626, 681 Further, N.W.2d in State v. Wis.2d distinguished (2004), Court of Wisconsin Supreme asked to expert was cases which witness between truthfully, and cases which of two witnesses testified decipher lying. if wаs asked another in which one witness that, former, questioning in the the line court held province jury, it of the but usurps impermissible because latter, permissible in the because the cross-examination of and effect of purpose
[t]he credibility through witness’s witness is to test that second aids the answers to It questions. his or her demeanor and truth-finding its jury in function. omitted) added). (footnotes The court (emphasis
Id. at 908-09 usurp do not they lying” questions that “were explained jury because province to bolster the placed before
[are] *20 Instead, used to [i]s other witnesses. cross-examination the the testimony, give in the and highlight the inconsistencies As explain to those inconsistencies. opportunity witness an concluded, questions posed the “were appeals the court of credibility.” ques- Such solely impeach defendant’s] [the credibility of witnesses. may help tions assess omitted) added). (citations also (emphasis See Id. at 909 (1998) v. 270 Ga. S.E.2d Whatley they lying” questions “were prosecution’s that (holding “merely emphasized the con- because permissible were resolve”) evidence, jury’s duty which it was the flict (internal omitted). quotations other courts also have refused to a
Many
adopt
blanket
prohibition
they lying” questions, acknowledging
of “were
v.
People
their
value in certain circumstances.
In
probative
Overlee,
(N.Y.App.Div.1997),
286 A.D.2d
Id. at 576. Thus, reasoned, the court when such a clear exists, only contradiction inference that can be drawn is lying: that someone is
In a situation where a defendant flatly denies occur- events, rence events and his involvement those as testified to witnesses ... has by People’s the defendant created a contest.... A as prosecutor, any with advocate, from may, provided stray he does the record issues, inject irrelevant cross-examine a defendant as vigorously possible. right, as Consistent with that a ... prosecutor may, where direct contradiction exists a of a prosecution between defendant’s and that witness, ask defendant whether that witness has lied or is a liar. (citations omitted).
Id. at 577 The court underscored such is not it “in questioning improper way signi- because no rather, a shifting proof,” emphasized fies of the burden of but that, the resolution the conflict on issues of credibil- “turn[s] measure, ity, depends, large testing on the for truth.” [and] Id. Pilot, State (Minn.1999), Supreme N.W.2d 511 adopt
Court of Minnesota also refused to prohibition blanket they lying” questions, stating, of “were “we do not believe
605 prohibiting questions necessary inflexible rule such is or desir- able” because may arise where “where they lying” questions
[situations in may probative have a value a of clarifying particular line in testimony, evaluating the of a witness credibility claiming or, Overlee, everyone but the witness lied as in “flatly witness denies the occurrence of events”. circumstances, Id. at 518. those the court determined that such a in in questions play assisting jury crucial role its Harris, search for truth. Id. See also United States v. 471 (3d Cir.2006) 507, F.3d (holding they lying” 512 that “were are if a appropriate opened defendant has the door by on testifying lying, direct that another witness is or it when is necessary on cross-examination to “focus a witness differences and similarities between his testimony and that witness”); another United States v. Bryant, F.2d (5th Cir.1985) (holding that “[w]hen witness is in placed issue the court [ ] has broad discretion concerning the extent to which may cross-examination exceed examination”); Morales, scope direct State 198 Ariz. (2000) 10 P.3d (refusing adopt bright line rule prohibiting they “were lying” questions they because “may be appropriate when the only possible explanation for the inconsistent deceit or or when a lying defen- dant opened has the door by testifying about the veracity examination”). other witnesses on direct does, By holding as it the majority adopts an over-inclusive prohibits, circumstances, stance which under all they “were lying” thereof, questions, any variation which serve to highlight, trials, lengthy oftentimes and complicated contradictions that the jury assessing must consider credi- bility. “Were lying” questions are an invaluable tool in our system adversarial which serve aid the its quest Thus, I the truth. with disagree majority’s blanket prohibition and would affirm judgment of the Court of Special Appeals. *22 joins in me to state that he authorized Harrell has
Judge dissenting opinion. this
919A.2d 77 WEEMS, Jr., et al. Thomas I. OF CALVERT COUNTY. COUNTY COMMISSIONERS Term, 97, Sept. 2006. No. Maryland. Appeals Court 16, 2007. March