Friday, April 30, 2010
Impeachable Opinion?: Court Of Appeals Of Maryland Finds Trial Court Properly Deferred Impeachment Ruling Until After Defendant Testified
For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during examination of the witness, but only if (1) the crime was an infamous crime or other crime relevant to the witness's credibility and (2) the court determines that the probative value of admitting this evidence outweighs the danger of unfair prejudice to the witness or the objecting party.
A criminal defendant, of course, can exercise his Fifth Amendment privilege against self-incrimination and not testify at trial. So, does the trial court have an obligation to rule on the issue of whether a defendant's prior convictions will be admissible to impeach him before he makes this decision, or can it defer that decision until after the defendant testifies? According to the recent opinion of the Court of Appeals of Maryland in Dallas v. State, 2010 WL 1643252 (Md. 2010), courts can at least sometimes defer that decision, and the trial court in the case before it was entitled to defer. I'm not sure how I feel about the court's general conclusion, but I disagree with its specific conclusion in the case before it.
In Dallas, Isaac E. Dallas was convicted of possession of cocaine with intent to distribute that controlled dangerous substance and related offenses. At trial, before determining whether he wanted to testify, Dallas wanted the trial court to rule on the admissibility of his prior convictions for distribution and possession of cocaine with intent to distribute that substance. The court, however, declined, deferring its decision until after Dallas testified. Based upon the court's ruling, however, Dallas chose not to testify.
He did, however, chose to appeal, and the Court of Appeals of Maryland found that his appeal was not foreclosed by the opinion in Luce v. United States, 469 U.S. 38 (1984), in which the Supreme Court found that a defendant cannot appeal a court's ruling permitting the admission of his prior conviction(s) unless he takes the stand and testifies. According to the court in Dallas, this opinion did not apply because the trial court did not, in fact, rule on the admissibility of Dallas' prior convictions. The court, however, did find that the trial court's decision to defer its ruling on Dallas' prior convictions did not have a constitutional dimension because it did not impermissibly chill his right to testify.
The court, though, still reviewed the trial court's ruling for abuse of discretion. And, according to the court,
Many are the times when a trial court can and, therefore, should decide a motion in limine involving a Rule 5-609 issue before the defendant makes the election. For example, when it is clear that a prior conviction is ineligible for impeachment under Rule 5-609, the court need not hear the defendant's testimony to know how to rule on a motion to exclude that proposed impeachment evidence. Similarly, the trial court certainly can recognize when the risk of unfair prejudice of the proposed impeachment evidence far outweighs its probative value, no matter how the defendant might testify. Moreover, the court may be satisfied that it has a sufficient basis upon which to make an in limine ruling without hearing the defendant's direct testimony if the court has learned, through other means, how the defendant is likely to testify. For example, a court may hear admissions that the defense makes during the defense's opening statement, or the court may accept a proffer of the defendant's direct testimony. In any of these circumstances, fairness to the defendant augurs in favor of the trial court's ruling on the motion before the defendant elects whether to testify or remain silent.
According to the court, though, this was not one of those cases. Instead,
During the lengthy discussion on the subject, the trial court explained that, in light of the similarity between the pending charges and the prior convictions, it was necessary to await Petitioner's testimony before deciding whether the probative value of the proposed impeachment evidence outweighed the danger of unfair prejudice to Petitioner. To be sure, the court was aware that the defense to the felony charge was to concede the possession of the cocaine and marijuana the police found on Petitioner but deny that the cocaine was for distribution. Yet, the court could not be certain what Petitioner's testimony would be until the court heard it.... For that reason, although the court surely could have accepted a proffer of Petitioner's testimony,...the court was not required to do so....
We presume that the trial court, not unreasonably, envisioned that, had Petitioner taken the stand, he might not have confined his testimony (consistent with counsel's opening statement) to a denial of an intent to distribute the drugs found in his possession; he might instead have testified that he had never before distributed illegal drugs. Had Petitioner's testimony been consistent with defense counsel's opening statement, then the trial court might have decided that evidence of the prior convictions carried a risk of unfair prejudice to Petitioner. Had Petitioner testified more expansively, then the court might have decided that the State should be permitted to impeach him with the prior convictions. Given the plausibility of either scenario, the court was not required to rule on the motion without first hearing Petitioner's direct testimony.
I'm flabbergasted. It is well established in the impeachment context that crimes bearing more similarity to the crime charged are less likely to admitted because the jury is likely to misuse them as propensity character evidence ("once a drug dealer, always a drug dealer") and not solely as impeachment evidence ("the defendant's testimony is untrustworthy"). Conversely, crimes bearing less similarity to the crime charged are more likely to be admissible. Yet, according to the Court of Appeals of Maryland, a trial court is likelier allowed to defer its ruling on prior similar crimes.
To me, this makes no sense, especially in light of the court's recognition that the trial court could have accepted a proffer. In other words, based upon the similarity of the defendant's past convictions to the crime charged, the trial court likely knew that the prior convictions would have been inadmissible. Thus, as long as Dallas' proffer did not involve him denying ever distributing drugs, the court could have conditionally deemed his prior convictions inadmissible, with the condition being that Dallas not make this denial when he actually testified.