EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, September 18, 2015

Court of Appeals of Maryland Finds Protective Housing for a Witness Wasn't a "Benefit"

Witnesses in criminal trials have typically a variety of interactions with the State prior to testifying under oath before a judge and/or jury. Usually, a witness is interviewed initially by a police officer or detective after the commission of a crime. Witnesses might be offered a monetary reward in exchange for coming forward with information pertaining to a crime. Witnesses "with a past" might exchange their testimony for a favorable plea deal arising from the case in which they are to testify or a related matter, or qualified or absolute immunity. In some cases, a witness might fear for his or her life, or for the safety of an immediate family member, and be placed in some form of witness protection program prior to and/or after trial to ensure his or her safety. In the present case, a witness was placed in protective housing for several months leading up to a murder trial after she claimed that the defendant showed up on her doorstep, causing her to be in fear of retaliation for talking with the police. We consider here whether her placement in reasonable protective housing constitutes a "benefit" that would compel the trial judge, upon request by the defendant, to give a particularized jury instruction pertaining to that witness's credibility (Maryland Criminal Pattern Jury Instruction (2nd ed.2012, 2013 Supp.) 3:13, "Witness Promised Benefit"). We conclude that it does not. Preston v. State, 118 A.3d 902 (Md. 2015).

This block quote pretty well explains the stakes in Preston, a murder case out of Baltimore City. Pattern Jury Instruction 3:13 states that

You may consider the testimony of a witness who [testifies] [has provided evidence] for the State as a result of [a plea agreement] [a promise that he will not be prosecuted] [a financial benefit] [a benefit] [an expectation of a benefit].

However, you should consider such testimony with caution, because the testimony may have been influenced by a desire to gain [leniency] [freedom] [a financial benefit] [a benefit] by testifying against the defendant.

There is also a comment accompanying 3:13:

Evidence that the State entered into an understanding or agreement with a testifying witness must be disclosed to the defendant, regardless of whether the agreement or understanding is formal or informal. Harris v. State, 407 Md. 503, 521, 966 A.2d 925, 935 (2009); Ware v. State, 348 Md. 19, 41, 702 A.2d 699, 709 (1997).

You might recall that the Harris case is the one I discussed in this post a few days ago. The court in Preston deemed it inapplicable because it, like Ware, involved the State's failure to disclose that the plea deal struck for a prosecution witness was a bit sweeter than the court was led to believe. By way of contrast, the State did disclose that the prosecution witness was given protective housing; the trial judge simply deciding that such housing was not a "benefit" triggering Pattern Jury Instruction 3:13.

In reviewing this issue, the Court of Appeals of Maryland found no Maryland precedent on the issue. It also found that there was pretty sparse precedent on the issue from around the country That said, the court did note that there were a few cases somewhat on point, such as Illinois v. McInnis, 411 N.E.2d 26, 39 (1980), in which

a witness testified that, in exchange for his testimony, he: (1) was “housed in witness quarters” while the case was pending; (2) received assistance from the state in relocating from his former neighborhood; received rent payments in his new building paid by the State; and, (4) hoped to collect a $5,000 reward. The witness admitted also that the State prosecutor promised to try to get his probation extended at an upcoming violation of probation hearing.

While the trial court did give a generalized credibility instruction with regard to this witness, it declined to give the more specific credibility instruction requested by the defendant. In affirming this decision on appeal, the Appellate Court of Illinois concluded

that the protective services provided to the witness did not constitute a "personal advantage or vindication" so as to warrant a particularized credibility instruction.

The Court of Appeals of Maryland reached a similar conclusion, finding that the witness's

experience with the State's protective services is hardly the “financial windfall” that Preston claims it to be. As Detective Moran observed at trial,

It's a lot for someone to move their life. You know, you got kids. She has a grandmother who was sick in the house. That's her neighborhood. That's her life. And that's a lot to move somebody.

Reasonable protective housing (such as the services provided to Payton) does not constitute a "benefit" within the meaning of Jury Instruction 3:13.

I think I understand the general thinking of the court in this regard, but I also think that it would have made some sense to give the jury a more diluted version of the instruction. This could have been something like:

If you believe the protective housing given to the witness to be a benefit, you may consider the testimony with whatever caution you believe to be appropriate.

-CM

https://lawprofessors.typepad.com/evidenceprof/2015/09/witnesses-in-criminal-trials-have-typically-a-variety-of-interactions-with-the-state-prior-to-testifying-under-oath-before.html

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Comments

Colin--did the jury in Adnan's case get Pattern Jury Instruction 3:13 about Jay's testimony?

Posted by: Melissa | Sep 18, 2015 11:48:33 AM

An interesting issue. As framed, I tend to agree with the court but I'm not sure that the court (or the parties) framed the issue properly. In my view the benefit that the witness received was not housing, it was *protection* from the alleged criminal.

The detective's testimony at trial focuses on the housing issue and insofar as housing is concerned the detective is right--it's not a "financial windfall" rather it is a burden. But is that the right comparison? Isn't the better comparison not between houses but the presence or absence of paid private security guards which is what the police protective custody is a stand-in for. And certainly the state covering the cost of private paid security is a financial windfall.

It's worth nothing that nothing in the jury instruction allows the court to weigh the costs vs the benefits /before/ issuing the instruction; that weighing is properly the province of the jury,

Posted by: Daniel | Sep 18, 2015 4:04:03 PM

Protected housing is a benefit mainly to the party who needs the testimony to be given. For the person testifying life as they knew it is over, possibly permanently. Hardly a benefit.

Posted by: Elizabeth MM | Sep 20, 2015 7:40:59 AM

Colin,

This isn't really related to this post but has Anne Beneroya disclosed her motivation in setting up the Intercept interview with Jay and Kevin Urick?

Posted by: Austin | Sep 21, 2015 9:33:18 AM

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