Criminal gangs such as “MS-13” are unfortunately frequently in the news, either because of illegal activity or political disputes about the prevalence of gang violence. Maryland’s highest Court last week addressed the admissibility of federal gang related convictions when a gang member testifies as a witness in a criminal case, in an opinion called Wilfredo Rosales v. State of Maryland.
The case involved an MS-13 gang member who was stabbed after being approached by six other men. The victim survived and identified Rosales as one of the men in the group, who did not stab but robbed him, claiming it was in retaliation for his testifying against other gang members in a murder trial. The defense sought to introduce in evidence that the victim witness had been convicted of a crime of violence under a federal racketeering law. The trial judge did not admit the evidence, and the jury convicted Rosales of retaliation against a witness and participation in a criminal gang.
The Court of Appeals said that under Maryland law, evidence of a criminal conviction of a witness may be admitted to impeach that witness’ credibility if the conviction is less than 15 years old, involves an “infamous” crime or one bearing on credibility, and where the probative value of the evidence outweighed any potential prejudice to the witness or objecting party. The intermediate appellate court agreed with the trial judge that the conviction was properly excluded.
“Racketeering” under the federal law involves any of a number of violent or other criminal acts, in favor of a criminal “enterprise” or association of individuals engaged in illegal activity. The Court of Appeals found that someone willing to participate in a criminal enterprise and commit violent acts may also be likely to lie under oath. These convictions therefore cross over the line between basic dishonesty involved in any crime, and crimes involving “inherent deceitfulness, furtive conduct and disregard for societal cohesiveness.” Therefore, the Court held, such convictions are admissible to impeach a witness’ believability.
In this particular case, the Court noted that the jury was already told that the victim was a member of MS-13 who had committed violent acts, and was a convicted felon in prison. Exclusion of the precise nature of his federal criminal convictions was therefore deemed harmless error, the conviction was upheld.
Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.