In this age of gangs and other criminal conspiracies, the prosecution more than ever faces the problem of trying to get witnesses to testify against some criminal defendants. When a witness is granted immunity from prosecution in order to secure his or her testimony, alleged fears of reprisal may still make a witness uncooperative. Whether a witness can claim that a refusal to testify was caused by duress was explored in an opinion last week from Maryland’s Court of Appeals in a case called Travis Howell v. State of Maryland.
The Court’s opinion indicates that Howell was charged in federal court with certain drug offenses. As part of a plea deal, he agreed to cooperate with law enforcement and testify in other matters for the prosecution. He later was called to testify before a grand jury that another man had confessed to committing a murder. By the time that criminal case was coming to trial, Howell had already been released from prison. After refusing to comply with a subpoena and being picked up on a warrant, he was granted immunity from prosecution for anything he testified to so as to remove his right to assert his Fifth Amendment right against self-incrimination.
At trial of the other criminal case, Howell refused to testify and that criminal defendant was acquitted. The State then prosecuted him for contempt of Court in refusing to testify after being granted immunity. Howell claimed that there had been an altercation outside the courtroom and he had been threatened, alleging that he would not testify because of fear that he would be harmed. His attorney attempted to argue the defense of duress as to the charge of contempt.
The Court of Appeals noted that the defense of duress to criminal charges requires a showing that the duress must be “present, imminent, and impending” so as to create a “well grounded apprehension of death or serious bodily injury.” It must be of a nature that there “is no opportunity for the defendant to escape.” A mere threat is not enough to establish duress as a defense.
Here, although the Court would not go so far as to say duress could never be a defense to a witness charged with contempt, the Court agreed that the agreed facts fell far short of establishing duress. Howell was not under duress or threat while he was testifying in Court, and any threat would have been of possible future injury. While such fear of reprisal, the Court found, may be offered to mitigate punishment for contempt, this situation did not support a finding of duress to excuse a refusal to testify.
Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.
