Hunter v. State

Dissenting Opinion by BATTAGLIA, J., which HARRELL, J., joins.

I respectfully dissent.

In this case the Petitioner, Maurice Gale Hunter, asks that we adopt a blanket rule prohibiting “were they lying” questions directed to one witness with regard to the testimony of another; the majority does so with its holding that such questions encroach the province of the jury. I disagree. As Judge Charles E. Moylan, Jr., so cogently stated in Fisher v. State, 128 Md.App. 79, 736 A.2d 1125 (1999), the purpose for such questions is not to elicit an assessment of another witness’s credibility; the purpose for “were they lying” questions is to focus the jury’s attention on contradictions in the testimony of different witnesses and to cast doubt upon the credibility of the witness so questioned.

In Fisher, Mary Utley, one of three defendants convicted of second-degree murder, child abuse, and conspiracy to commit child abuse of Utley’s daughter, Rita, challenged the permissibility of the following colloquy:

Q: You remember saying to the nurse at Northwest Hospital, that you felt responsible for Rita’s death?
A: No.
Q: So if a nurse testified to that, that nurse would be lying?
[Counsel for Mary Utley]: Objection.
The Court: Overruled.
A: I don’t’ remember saying that to the nurse.
Q: Would you ever let [Rita] run around at night when she was a small child?
*599Counsel for Mary Utley: Objection.
The Court: Overruled.
A: No.
Q: You remember Mrs. Deiner testifying the other day?
A: Yes, I do.
Q: So, she was not telling the truth as well?
A: Rita—
[Counsel for Mary Utley]: Objection, Your Honor.
The Court: Overruled.
A: Rita wasn’t even, I don’t believe, walking at that age.
Q: Well, how about [your other daughter] Georgia, was she walking, was she lying about Georgia running around?
A: As I just said, they would walk around at night like normal children, but again, I don’t believe Rita was walking at the age that she said she was out.
Q: So then Mrs. Deiner was not telling the truth?
A: Yes.
Q: Now, Detective Walsh, she said, you heard her say that you were laughing after Rita died, was she not telling the truth?
A: She was not telling the truth.
Q: And Detective Hill—
A: He was not telling the truth.
Q: I didn’t ask the question yet. Was Detective Hill telling the truth when he said you were laughing and you thought Rita’s death was a big joke?
A: He was absolutely not telling the truth at all.
Q: So both of these detectives, have you ever met them before?
A: Only at the hospital and at the building.
Q: You know of any reason why these detectives would he to the ladies and gentlemen of the jury?
[Counsel for Mary Utley]: Objection, Your Honor.
*600The Court: Overruled.
A: I don’t know. All I know is that I didn’t say what they said I said.
Q: So, then they were not being honest with the jury?
A: That’s correct.
Q: Rose, your other daughter, said that she never locked you in the room?
[Counsel for Mary Utley]: Objection, Your Honor.
The Court: Overruled.
Q: Is Rose lying about that?
A: Yes, she is.
Q: So all these people are lying but Mary Utley?
A: That is correct.

Id. at 149-151, 736 A.2d at 1162-63 (emphasis in original). Judge Moylan, -writing for the Court of Special Appeals, held that the trial court properly allowed the questions “for the obvious reason that the cross-examination was doing exactly what cross-examination is designed to do,” namely, “to expose falsehood ... as dramatically as possible” by highlighting “the number of witnesses, ideally neutral witnesses with no reason to fabricate, who have given contradictory accounts,” id. at 149, 151, 736 A.2d at 1162, 1163, and explicated that this line of questioning was permissible because it required Mary Utley to assess her own credibility:

What Mary Utley was being asked to do was either 1) to acknowledge her own falsity or 2) to look foolish in denying it. Once the final rhetorical question “So all these people are lying but Mary Utley?” was asked, the skillful cross-examiner would have been turning and walking disdainfully away without waiting for an answer. The answer no longer mattered.

Id. at 152-53, 736 A.2d at 1163.

Like Fisher, the purpose for the “were they lying” questions in the case at bar was not to elicit a credibility assessment of the Detective, but, rather, to draw the attention of the *601jury to the existing conflict between the testimony of Hunter and the Detective. Regardless of how Hunter responded, the question of who to believe was left to the jury.

The majority, however, rejects the acumen of Fisher and relies instead on an erroneous application of our holdings in American Stores Co. v. Herman, 166 Md. 312, 171 A. 54 (1934), Thompson v. Standard Wholesale Phosphate & Acid Works, 178 Md. 305, 13 A.2d 328 (1940), and Bohnert v. State, 312 Md. 266, 277, 539 A.2d 657, 662 (1988).

In American Stores Co. v. Herman, the trial judge sustained an objection to the following questions asked by the American Stores’s attorney of one of Herman’s witnesses:

Q. Did you hear him say that your car passed the southbound car about four or five houses north of the building line?
A. Yes, sir.
Q. Is that correct?

166 Md. at 314, 171 A. at 55. We upheld the trial court’s decision because “[o]ne witness cannot be asked to characterize the testimony of another, since that is exclusively the function of the jury.” Id. at 314-15, 171 A. at 55 (citations omitted). Unlike in Fisher and the case sub judice, however, the impermissible question in American Stores Co. was clearly being utilized in order to assess whether another witness was accurate in his testimony, which is not the situation before us.

In Thompson v. Standard Wholesale Phosphate & Acid Works, we determined that the following colloquy with an expert witness was inopportune:

Q. Now I am asking the Doctor which testimony he is assuming to be true, whether the [employee] struck the radiator pipes or did not strike the radiator pipes?
A. Well, to tell the truth, I do not know whether he did or not because the testimony at one time said he did and at another time said he did not.

178 Md. at 318, 13 A.2d at 334, based upon the well-established rule that:

*602if there is any conflict between the witnesses as to facts on which an expert opinion is sought, the expert witness cannot, although he has heard the testimony, be asked to base his opinion on that testimony, because, to reach his conclusion, he must necessarily invade the province of the jury and pass on the credibility of witnesses and the weight of the evidence.

Id., quoting 20 Am.Jur. § 790 (emphasis added). In the present case, conversely, Hunter was not asked to assess the Detective’s credibility, nor opine about evidence.

In Bohnert v. State, the defendant was accused of sexual abuse. A Department of Social Services investigator, recognized by the trial court as an “expert in the field of child sexual abuse,” testified that the child had been sexually abused in contradiction to the defendant’s denial. We held that the expert’s testimony should not have been admitted because, as in Thompson, it invaded the province of the jury by requiring the expert to resolve conflicting evidence and also to assess the credibility of the child and the defendant. 312 Md. at 278, 539 A.2d at 663. Obviously, in both Thompson and Bohnert, an expert witness was called upon to determine which of two witnesses was telling the truth, which is a prohibited practice. Stebbing v. State, 299 Md. 331, 349, 473 A.2d 903, 911 (1984); Colder v. Levi, 168 Md. 260, 266, 177 A. 392, 394 (1935). This choice of truthfulness is not implicated in the present case.

Many of our sister states addressing the issue of “were they lying” questions clearly have recognized their propriety. In State v. Hart, 303 Mont. 71, 15 P.3d 917 (2000), the Supreme Court of Montana held that there was no prosecutorial misconduct implicated by “were they lying” questions. The court reasoned that such questions did not invade the credibility assessment function of the jury anymore than those questions that elicited facts from the defendant’s perspective:

[T]he difference between the defendant testifying that “yes, the victim lied, she attacked me” or the defendant testifying that “she attacked me” is, for purposes of the jury’s role in *603making credibility determinations, irrelevant. In either situation, the jury must still decide which witness is more credible.

Id. at 923. The court went on to distinguish the “were they lying” questions from a prosecutor’s comments on an accused’s guilt, “which do[ ] invade the province of the jury and ... usurp[ ] ... its function because the jurors may simply ‘adopt the prosecutor’s views’.” Id.

Further, in State v. Johnson, 273 Wis.2d 626, 681 N.W.2d 901 (2004), the Supreme Court of Wisconsin distinguished between cases in which an expert witness was asked to decipher which of two witnesses testified truthfully, and cases in which one witness was asked if another was lying. The court held that, in the former, the line of questioning is impermissible because it usurps the province of the jury, but in the latter, permissible because

[t]he purpose and effect of the cross-examination of the second witness is to test that witness’s credibility through his or her demeanor and answers to questions. It aids the jury in its truth-finding function.

Id. at 908-09 (footnotes omitted) (emphasis added). The court explained that “were they lying” questions do not usurp the province of the jury because they

[are] not placed before the jury to bolster the credibility of the other witnesses. Instead, cross-examination [i]s used to highlight the inconsistencies in the testimony, and give the witness an opportunity to explain those inconsistencies. As the court of appeals concluded, the questions posed “were solely to impeach [the defendant’s] credibility.” Such questions may help the jury assess the credibility of witnesses.

Id. at 909 (citations omitted) (emphasis added). See also Whatley v. State, 270 Ga. 296, 509 S.E.2d 45, 51 (1998) (holding that the prosecution’s “were they lying” questions were permissible because they “merely emphasized the conflict in the evidence, which it was the jury’s duty to resolve”) (internal quotations omitted).

*604Many other courts also have refused to adopt a blanket prohibition of “were they lying” questions, acknowledging their probative value in certain circumstances. In People v. Overlee, 286 A.D.2d 133, 666 N.Y.S.2d 572 (N.Y.App.Div.1997), the court held that the prosecutor’s questions on cross-examination of the defendant, wherein he repeatedly asked the defendant whether another witness was lying, was appropriate and explicated that:

Here, defendant testified that Santana and the other officers attacked him. The prosecution witnesses testified to defendant’s assault of Santana and the other officers. The contradictory accounts cannot be based on mistake or hazy recollection.

Id. at 576. Thus, the court reasoned, when such a clear contradiction exists, the only inference that can be drawn is that someone is lying:

In a situation where a defendant flatly denies the occurrence of events and his involvement in those events, as testified to by the People’s witnesses ... the defendant has created a credibility contest.... A prosecutor, as with any advocate, may, provided he does not stray from the record or inject irrelevant issues, cross-examine a defendant as vigorously as possible. Consistent with that right, the prosecutor may, where a direct contradiction ... exists between a defendant’s testimony and that of a prosecution witness, ask a defendant whether that witness has lied or is a liar.

Id. at 577 (citations omitted). The court underscored that such questioning is not improper because it “in no way signifies a shifting of the burden of proof,” but rather, emphasized that, the resolution of the conflict “turn[s] on issues of credibility, [and] depends, in large measure, on the testing for truth.” Id.

In State v. Pilot, 595 N.W.2d 511 (Minn.1999), the Supreme Court of Minnesota also refused to adopt a blanket prohibition of “were they lying” questions, stating, “we do not believe an *605inflexible rule prohibiting such questions is necessary or desirable” because

[situations may arise where “where they lying” questions may have a probative value in clarifying a particular line of testimony, in evaluating the credibility of a witness claiming that everyone but the witness lied or, as in Overlee, the witness “flatly denies the occurrence of events”.

Id. at 518. In those circumstances, the court determined that such questions play a crucial role in assisting the jury in its search for the truth. Id. See also United States v. Harris, 471 F.3d 507, 512 (3d Cir.2006) (holding that “were they lying” questions are appropriate if a defendant has opened the door by testifying on direct that another witness is lying, or when it is necessary on cross-examination to “focus a witness on the differences and similarities between his testimony and that of another witness”); United States v. Bryant, 770 F.2d 1283, 1291 (5th Cir.1985) (holding that “[w]hen the credibility of a witness is placed in issue the [ ] court has broad discretion concerning the extent to which cross-examination may exceed the scope of direct examination”); State v. Morales, 198 Ariz. 372, 10 P.3d 630, 633 (2000) (refusing to adopt a bright line rule prohibiting “were they lying” questions because they “may be appropriate when the only possible explanation for the inconsistent testimony is deceit or lying or when a defendant has opened the door by testifying about the veracity of other witnesses on direct examination”).

By holding as it does, the majority adopts an over-inclusive stance which prohibits, under all circumstances, “were they lying” questions, or any variation thereof, which serve to highlight, in oftentimes lengthy and complicated trials, the contradictions that the jury must consider in assessing credibility. “Were they lying” questions are an invaluable tool in our adversarial system which serve to aid the jury in its quest for the truth. Thus, I disagree with the majority’s blanket prohibition and would affirm the judgment of the Court of Special Appeals.

*606Judge Harrell has authorized me to state that he joins in this dissenting opinion.