Hunter v. State (Ct. of Appeals)

Filed March 16, 2007--Opinion by Judge Dale Cathell (JJ Battaglia and Harrell dissenting).

Appellant was convicted of one count of first degree burglary, for which he was sentenced to fifteen years in prison. In an unreported opinion, the Court of Special Appeals affirmed the judgment of the trial court. In a writ of certiorari, the petitioner presented two questions for review:

1) In a criminal trial, is it error for the judge to allow the prosecutor to ask the defendant whether the police witnesses were lying?

2) If the answer to the preceding question is yes, did the Court of Special Appeals err in holding that the error was harmless, particularly where the underlying facts were contested, the jury sent out notes suggesting that they were struggling with some of the factual issues, and the prosecutor's closing argument augmented the prejudicial effect of the error?

In a criminal case tried before a jury, a fundamental principle is that the credibility of a witness and the weight to be accorded to a witness' testimony are solely within the province of a jury. Generally, the rule is that it is error for the court to permit to go the jury a statement, belief, or opinion of another person to the effect that a witness is telling the truth or lying. Therefore, it is the well established law of this State that issues of credibility and the appropriate weight to give to a witness's testimony are for the jury, and it is impermissible, as a matter of law, for a witness to give an opinion on the credibility of another witness.

At trial, petitioner was asked five "were-they-lying" questions. These questions were impermissible as a matter of law because they encroached on the province of the jury by asking the petitioner to judge the credibility of the detectives and weigh their testimony, i.e., he was asked: "And the detective was lying?" The questions also asked petitioner to stand in place of the jury by resolving contested facts. Moreover, the questions were overly argumentative. They created the risk that the jury might conclude that, in order to acquit petitioner, it would have to find that the police officers lied. The questions were further unfair because it is possible that neither the petitioner nor the police officers deliberately misrepresented the truth. These questions forced petitioner to choose between answering in a way that would allow the jury to draw the inference that he was lying or taking the risk of alienating the jury by accusing the police officers of lying. Therefore, the trial court erred in allowing the State to ask petitioner "were-they-lying" questions. When prosecutors ask "were-they-lying" questions, especially when they ask them of a defendant, they, almost always, will risk reversal.

Once error is established, the burden is on the State to show that it was harmless beyond a reasonable doubt. Here, the possible prejudicial effect of the "were-they-lying" questions is demonstrated by the number and combination of the questions themselves, the repeated emphasis on them during the State's closing argument, and, most importantly, the jury's behavior during its deliberations. During deliberation, the jury sent four notes to the trial court, which could have been related to concerns the jury had about the truthfulness of petitioner's testimony. Consequently, the Court is unable to say, beyond a reasonable doubt, that the jury was not effected by the "were-they-lying" questions. Therefore, the trial court's error in allowing the questions was not harmless.

The full opinion is available in PDF.