When a judge — in front of the jury — coerces an adverse witness to testify, pounce on it
Two years ago, a Baltimore City, Maryland, judge incorreclty warned a prosecution witness in a murder trial — in front of the jury — that she had no right to remain silent. On October 28, 2009, Maryland’s intermediate appellate court reversed the resulting conviction of Anthony Dickson, for the following main reasons:
"We nevertheless conclude that, even though Thomas’s [the reluctant witness] claim of privilege was personal to her, and even though there are significant distinctions between this case and Archer, the trial court’s error in summarily rejecting Thomas’s claim of privilege likely prejudiced the appellant’s defense, and therefore warrants a new trial. If Thomas properly invoked her Fifth Amendment right not to testify, so she was ‘unavailable,’ her prior testimony in the McFadden case and her two statements to the police would not have been admissible in evidence under Md. Rule 5-802.1(a) (allowing as an exception to the hearsay rule the introduction of a prior inconsistent statement by an available witness if the prior statement was ‘given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition’). And, as an unavailable declarant, her testimony at McFadden’s trial would not have been admissible as ‘former testimony,’ as the appellant, against whom the testimony now was being offered, had not had ‘an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.’ Rule 5-804(b)(1). See Archer, 383 Md. at 347 (‘If [the witness] had remained steadfast in his refusal to testify, his former [inconsistent] testimony would not have been admitted and the State would not have been able to introduce [his] prior statements as substantive evidence.’). These were critical pieces of evidence against the appellant that would not have been admissible had the court concluded, based upon a totality of the circumstances, that Thomas had a reasonable basis for invoking the Fifth Amendment and was acting in good faith in doing so. Without a proper record to assess the legitimacy of Thomas’s Fifth Amendment claim, however, we cannot determine whether the court’s error was harmless."
Anthony Dickson v. Maryland, ___ Md App. ___ (Oct. 28, 2009). Jon Katz