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The courts in presiding over trials in criminal cases are careful in determining whether to admit evidence of criminal conduct other than that for which the defendant is on trial. This includes evidence of conduct that suggests a consciousness of guilt for the charges at issue. The admissibility of such evidence was considered in an unreported opinion last week from Maryland’s intermediate appellate court in a case called Allen Jerome Prue v. State of Maryland.

The opinion indicates that Prue was charged with assault and other offenses arising from an incident where he climbed up on to the roof of the home where his girlfriend and their four children lived. He then entered the home by ripping out the screen of the window into the children’s bedroom, and allegedly assaulted his ex-girlfriend. After she texted for help, the police came and arrested Prue.

At trial, the State introduced over objection evidence that two days before the trial, the victim again saw that the defendant had climbed onto the roof of her home, whereupon she screamed and called 911 while he fled. The prosecution argued that this was an effort to intimidate the victim and keep her from testifying against him. The trial judge admitted the evidence as showing the defendant’s consciousness of guilt for the pending charges. A jury convicted him of assault and reckless endangerment, and the defendant appealed.

The Court of Special Appeals noted that under the Maryland Rules of Evidence, evidence of post-crime behavior may be relevant to the question of guilt where the behavior provides evidence of the defendant’s state of mind. Whether such evidence is admissible depends on the “degree of confidence” the trial judge has that the behavior shows consciousness of guilt, which can lead to an inference of actual guilt of the offenses charged. The appellate court found that it was not an abuse of discretion for the trial judge to conclude that defendant’s conduct could be fairly seen as an effort to intimidate the victim, even if there were some innocent explanation for trying to enter her home from the roof.

Even though the conduct showing consciousness of guilt was the same conduct that led to the charges at trial, the Court found there was no unfair prejudice in admitting proof of the conduct as it was unlikely to lead to the jury ignoring the evidence of the crimes alleged, and upheld the convictions.

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

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