Impeaching with a Probation before Judgment
It is possible to impeach for a probation
before judgment, but only if “the conduct is probative of a character trait of
untruthfulness.” Schmitt v. State, 140
An impeachment question resulting from
Impeachment by examination regarding witness's own prior conduct not resulting in convictions. The court may permit any witness to be examined regarding the witness's own prior conduct that did not result in a conviction but that the court finds probative of a character trait of untruthfulness. Upon objection, however, the court may permit the inquiry only if the questioner, outside the hearing of the jury, establishes a reasonable factual basis for asserting that the conduct of the witness occurred. The conduct may not be proved by extrinsic evidence.
Md. Rule 5-608(b)
The right to cross-examine witnesses regarding the witness' own prior conduct not resulting in a criminal conviction is limited by Rule 5-608(b) in several ways:
- First, the trial judge must find that the conduct is relevant, i.e., probative of untruthfulness
- Second, upon objection, the court must hold a hearing outside the presence of the jury, and the questioner must establish a reasonable factual basis for asserting that the conduct of the witness occurred.
- Third, the questioner is bound by the witness' answer and may not introduce extrinsic evidence of the asserted conduct.
-
Finally, as with all evidence, the court has the
discretion to limit the examination, under Rule 5-403, if the court finds
that the probative value of the evidence is outweighed by unfair prejudice.
Pantazes v. State, 376
First, the trial judge must find that the conduct is probative of
untruthfulness
Evidence that a witness has been convicted of an infamous
crime is always admissible to impeach the witness' credibility. Even if this
were not so, evidence of lesser crimes, which tends to show that a person
should not be believed under oath may also be admitted. Ogburn
v. State, 71
If the crime is not an infamous one, it would then be
necessary to show, in addition, that the crime was not committed at a point in
time too remote from the trial as to dilute its effect on credibility. Ogburn v. State, 71
In order for a crime to be admissible for impeachment, the
crime itself, by its elements, must clearly identify the prior conduct of the
witness that tends to show that he is unworthy of belief. Moreover, a
crime tends to show that the offender is unworthy of belief, if the perpetrator
"lives a life of secrecy" and engages in "dissembling in the
course of [the crime], being prepared to say whatever is required by the
demands of the moment, whether the truth or a lie."
State v. Westpoint, 404
Only prior bad acts which are very closely related to the
witness' veracity and for which counsel can demonstrate a firm basis for
believing that the conduct in fact occurred would pass the trial judge's
scrutiny. Robinson v. State, 298
to be admissible for impeachment
purposes a conviction must be either a felony at common law or a crimen falsi and thus infamous,
or a lesser crime bearing upon the witness's credibility. Stated another way, crimes,
other than those that are infamous, whether misdemeanors or statutory felonies,
fall into the class of lesser crimes and may or may not reflect on one's
tendency to be truthful. . . . If the crime being offered to impeach says
nothing about the likelihood of the witness's propensity to be truthful under
oath, it is irrelevant on that issue and should not be admitted. If the prior
conviction passes this relevancy test, then the trial court must determine if
its probative value outweighs its prejudicial effect. In other words, because
evidence is legally admissible does not necessarily require its admission. Only
if the trial judge, in the exercise of his discretion, feels that the prior
conviction rationally carries probative value on the issue of truth and
veracity of the witness, should the evidence be admitted.
State v. Westpoint, 404
for a conviction to affect veracity, the crime itself, by
its elements, must clearly identify the prior conduct of the witness that tends
to show that he is unworthy of belief
State v. Westpoint, 404 Md. 455, 480 (2008)
Second, upon objection, the questioner must establish a reasonable
factual basis for asserting that the conduct of the witness occurred.
Since "the fact of prior misconduct" must be
established as a prerequisite to obtaining a probation
before judgment disposition, the proffer that a witness has received that
disposition for a theft offense necessarily establishes a reasonable basis for
the inquiry concerning that offense. Ogburn v. State,
71
mere accusations of crime or
misconduct may not be used to impeach.
Pantazes v. State, 376
when a party is attempting to
impeach a witness in this regard, the relevant inquiry is "not whether the
witness has been accused of misconduct by some other person, but whether the
witness actually committed the prior bad act.
Pantazes v. State, 376
Because a conviction of a crime conclusively establishes the
underlying misconduct, counsel may inquire into any final conviction which
suggests that the witness is unworthy of belief. However, if the bad acts are
not conclusively demonstrated by a conviction, the trial judge must exercise
greater care in determining the proper scope of cross-examination.
Pantazes v. State, 376
A hearsay accusation of guilt has little logical relevance
to the witness' credibility.
State v. Cox, 298
Anthony v. State, 117
Powell v.
Third, the questioner is bound by the witness' answer and may not
introduce extrinsic evidence of the asserted conduct.
Prior bad acts impeachment may only be asked directly of the
witness whose reputation is in question; it may not be asked of other witnesses
in an attempt to prove prior bad acts by extrinsic evidence. Merzbacher v. State, 346
A witness may be cross-examined about prior bad acts which
are relevant to an assessment of the witness' credibility. In cases regarding
prior misconduct, the cross-examiner is bound by the witness' answer and, upon
the witness' denial, may not introduce extrinsic evidence to contradict the
witness or prove the discrediting act. The inquiry virtually stops with the
question and answer, except to the extent that the trial judge may allow
further cross-examination to refresh the witness' recollection. State v. Cox,
298
inquiries concerning prior
misconduct are subject to the rule that ". . . [t]he cross-examiner is
bound by the witness' answer and, upon the witness' denial, may not introduce
extrinsic evidence to contradict the witness or prove the discrediting
act." Consequently, because "[t]he inquiry virtually stops with the
question and answer", the likelihood that the issue on trial will be
obscured is, at best, minimal. Ogburn v. State, 71
Finally, the court has discretion to limit the examination if
the court finds that the probative value of the evidence is outweighed by
unfair prejudice.
This may be due to the question’s use to embarrass the witness or the likelihood of obscuring the issue on trial.
With impeachment by prior acts, the problem becomes more
acute when it is the defendant on the witness stand. The trial judge must
carefully scrutinize the potential prejudice to the defendant lest the jury
conclude that the defendant should be convicted because of his history of bad
or immoral conduct. State v. Cox, 298
Once the relevance of the bad act to the assessment of the
witness' credibility has been established and a reasonable basis for the
inquiry has been shown, it follows, a fortiori, that the primary purpose of the
inquiry is the impeachment of the witness' credibility.
Ogburn v. State, 71
Because the inquiry for a prior bad act virtually stops with
the question and answer, the likelihood that the issue on trial will be obscured
is, at best, minimal. Ogburn v. State, 71
A probation before judgment disposition was not intended to
insulate a witness from the rigors of cross-examination, including impeachment
by showing prior misconduct affecting credibility. Ogburn
v. State, 71
It is possible to impeach for a probation
before judgment, but only if “the conduct is probative of a character trait of
untruthfulness.” Schmitt v. State, 140