Disclosing the identifying witnesses you say

gavel2It is a common to see in movies or television a dramatic scene where the prosecution suddenly calls to the stand the surprise witness who identifies the defendant as the killer. The Maryland Rules of Criminal Procedure require that prior to trial the prosecution must disclose “all relevant material or information regarding…pretrial identification of the defendant by a State’s witness.” How this rule works in practice was discussed by a divided Maryland Court of Appeals in a case called John W. Green III v. State.

The majority opinion indicates that evidence at Green’s trial showed that he and Copeland, a codefendant who pled guilty to first degree murder, confronted the victim who had stolen drugs and money from Copeland. The victim was shot and killed, and there was one witness who saw the actual shooting. She told the police she could not see the face of a shorter stout man who was wearing a hoodie, but did see the face of a tall and thinner man present when the victim was shot. The State at trial indicated the witness would identify the co-defendant and say he was not the shooter, and defense counsel objected as this identification was not disclosed pretrial. Copeland was allowed to come into court and the witness identified him as the man who was not the shooter. Green was convicted and appealed.

The four judge majority noted that the State’s theory was that only two men were present, along with the victim, at the shooting and therefore Green must have been the shooter since the witness said the other man present was not. Given this testimony, the judges ruled that allowing an identification of the codefendant on these facts was the equivalent of a pretrial identification of the defendant as the shooter, and therefore the State was required to disclose this witness and what her testimony would be before trial. The majority therefore ordered a new trial.

The dissenting judges noted that, by the terms of the rule, it was clear that this witness was not going to identify Green, not did any other witness testify that he was in fact the man who shot the victim. These judges felt that it was only in hindsight that the inference of Green as the shooter could be inferred from the witness, and the State was not required to disclose this evidence ahead of trial. This illustrates how judges can struggle to balance rules requiring disclosure of certain evidence in criminal cases with legitimate strategy of counsel.

Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.

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