In criminal cases, the courts are very careful to make sure that it is not suggested that the defendant has any burden of proof, but that it remains with the prosecution. Maryland case law also makes it clear that a witness cannot give any opinion about whether another witness is lying or telling the truth. This was explored in a recent unreported opinion from Maryland’s intermediate appellate Court is a case called Dustin Reed Barton v. State.
The opinion explains that Barton was convicted of second degree assault, for striking his wife during a roadside argument. From statements given by the defendant and his wife to the state police, it was established that while the wife was driving with her husband to a hospital, they got into an intense argument. The wife pulled over to the side of the road while they continued to argue. The State called a witness who was driving by, and who testified that she saw the defendant standing outside a pickup truck, and she believed he punched through the window several times into his wife’s face. Another independent witness who came along also saw the defendant’s arm moving into the vehicle, but could not see inside to see what he may have hit.
The wife testified for the defense and disputed that she had been assaulted, claiming that her husband only struck the dashboard and the seat, not her. As the judge’s opinion queried, “The eye of the hurricane is that simple question: Did the appellant assault his wife or did he assault only the dashboard?” In cross-examining the wife, the prosecutor asked over objection whether witnesses who claimed to have seen her husband strike her “were mistaken.” The defense also objected on appeal to questioning of the wife in which she was asked whether the trooper, who testified that at one point she admitted that her husband was outside the vehicle, was “wrong about that.”
The Court noted that Maryland law provides that it is improper to ask a defendant or defense witness questions whether they are claiming that other witnesses were lying when they gave testimony contradicting the defense version of events. Such “were they lying” questions, the courts have held, invade the province of the jury which is the sole judge of credibility of witnesses, and the admission of such questions can cause a conviction to be reversed.
Here, the Court held, the wife was not asked whether she claimed the other witnesses were lying. The Court noted that “a witness is fully at liberty to dispute the testimony of another witness by asserting that that other witness was mistaken.” That is not same as giving an opinion about whether another witness is fabricating a story, and the conviction in this case was upheld.
Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.