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A witness for now - pending charges

gavel2The Sixth Amendment to the U.S. Constitution, as well as similar provisions in the Maryland Declaration of Rights, protect the right of an accused to confront witnesses against him. 

These protections allow for wide latitude on the part of a defendant’s attorney in cross-examining witnesses called by the prosecution. Maryland’s Court of Appeals last week addressed how to handle questioning of a witness who faces his own criminal charges, in a case called Manchame-Guerra v. State. 

The opinion by Chief Judge Barbera indicates that the defendant was charged with murder in a shooting death.

During trial, the State called a witness who testified that he saw the defendant shoot the victim. At the time of his first interview with the police, the detective was aware that the witness faced charges in an unrelated case for burglary, theft and carrying a concealed weapon. 

The prosecution’s theory was that this was an execution style shooting, while the defense was that the shooting was an accident, making this witness’ credibility very important. 

When the defense attorney sought to question the witness about his pending charges, the State objected arguing that there was no evidence that the police or prosecution ever discussed those charges with the witness or offered to give him a break if he testified. 

The trial judge would not allow defense counsel to ask about the charges, and the jury convicted the defendant of second degree murder and related charges. 

The Court of Appeals disagreed with the trial judge and intermediate appellate court, and held that it was error not to allow the witness to be asked about his pending criminal case. 

The defendant had met the threshold showing that these charges had been pending for 18 months and that the police knew about them, so that from the witness’ perspective there was circumstantial evidence that he could have believed he would get a benefit on his pending criminal case if he testified. 

This was a sufficient showing of potential bias or motive to testify as the prosecution wanted, to allow the jury to hear the evidence and decide for itself if this affected the witness’ credibility. 

Defendant’s convictions were reversed to be sent back for a new trial.

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

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