It is not unusual for prosecutors to have to deal with victims of crimes who are reluctant to testify and incriminate the criminal defendant, for such reasons as a relationship with or even fear of the defendant. How the prosecution can deal with such a witness to obtain testimony needed for a conviction is illustrated by a recent unreported opinion from Maryland’s Court of Special Appeals in a case called Bryan Johnson v. State of Maryland.
The opinion indicates that the victim testified at trial that he ran into the defendant, whom he had known all his life, and they had lunch. The victim said that after he paid the defendant back some money he owed him, Johnson tried to grab the rest of his money, and in so doing his “rings” rubbed up against his back and cut him. A police officer testified that in response to a 911 call, he came upon the victim sitting on a curb bleeding profusely from his back, and that the victim said Johnson had stabbed him. He told the same thing to another officer in the ambulance, and repeated it to a detective the next day while picking the defendant’s picture out of a photo array.
The victim tried to minimize the physical contact from the defendant. The prosecutor, over objection, played a tape of the 911 call, in which the victim could be heard identifying Johnson as having just stabbed him. The victim (who was serving time in jail himself) also admitted that he had told the prosecutor just that morning that the defendant had stabbed him, and he also admitted that he was worried about someone who was seated in the courtroom.
The appellate Court held that the victim’s statements to the police that the defendant had stabbed him were hearsay, out of court statements offered for the truth of the matters asserted. However, it found applicable an exception to excluding hearsay for statements that identify an individual, where the witness who made the statement testifies at trial and can be cross-examined. The Court also found that the statement to the 911 caller, and the callers own statements reflected on the tape of the call were admissible under the “excited utterance” exception allowing into evidence statements made during or just after a starting event.
Here, a person who comes upon another who has just been stabbed in a public place and is bleeding and losing consciousness, can reasonably be said to have made statements under the excitement of the event without time to reflect on what was happening. This case illustrates ways in which the prosecution can still present evidence from the reluctant witness.