Maryland Rule 5-616: A Lawyer’s Dream Come True…Or Nightmare
All Wrapped Up In One Lengthy Rule
By Robert C. Bonsib, Esq. & Megan E. Coleman, Esq
When you can’t find a hearsay exception to use, go to Rule 5-616. When you can’t find what you need within Rules 5-404(b), 5-608, or 5-609, go to Rule 5-616. If the evidence is collateral, you may still be able to go to Rule 5-616, check out (b)(2) for a path to admission of the evidence.
Rule 5-616 governs impeachment by inquiry of the witness directly, impeachment by the use of extrinsic evidence, and rehabilitation of a witness. And just in case this lengthy rule fails to cover a topic specific to your case, the Committee Note to the Rule underscores that "This Rule is intended to illustrate the most frequently used methods of impeachment and rehabilitation. It is not intended to be exhaustive or to foreclose other legitimate methods."
Most recently, the Court of Special Appeals, in Anderson v. State, 2014 WL 7182001, analyzed the provisions of Rule 5-616(b)(2) which discuss the considerations that the trial court must evaluate in deciding whether it is proper to admit extrinsic impeaching evidence contradicting a witness’s testimony on non-collateral matters.
In Anderson, defendant Russell Anderson was convicted of two counts of first degree rape of Rosa Molina, and was sentenced to two consecutive terms of life in prison. Molina alleged that on December 22, 1989, in a laundry room of her apartment building in Montgomery County, that Anderson and a co-defendant took turns raping her and holding a handgun to the side of her head while doing so.
Two weeks after this incident, on January 5, 1990, an unrelated victim called the D.C. Police and reported that she was raped at gunpoint by Anderson. A search of Anderson’s D.C. apartment was conducted that day, and a handgun was found in the closet of his apartment.
The Montgomery County rape case went to trail in April 2013. Molina testified to the rape and the use of the handgun by Anderson. The defense contended that the sexual act was consensual. Prior to Anderson’s testimony, the State sought a ruling from the trial court for permission to cross-examine Anderson about the handgun found in his apartment on January 5, 1990. The State admitted that there was no evidence that the handgun found was the one used in the December 22, 1989 rape. Over defense objection, the trial court ruled that the handgun evidence could be used for cross-examination if it were "carefully limited."
On cross-examination of Anderson, Anderson denied owning a firearm or possessing one at his apartment. The State marked the D.C. police report for identification and asked Anderson whether it was true that he kept the revolver in his closet. Anderson answered "no." The State then moved the introduction of the D.C. police report pursuant to Rule 5-616(b)(2). Over objection, the trial court admitted it for the sole purpose of showing that a handgun was found in the closet of the defendant’s apartment. Everything except the date, address, and items recovered was to be redacted.
This report was subsequently withdrawn as an exhibit by the State and did not go to the jury. However, the next day the State called the D.C. police officer involved in the seizure of the weapon as a rebuttal witness. Over objection, this officer was permitted to testify to recovering the handgun in the search of the apartment on January 5, 1990. The trial court ruled that the testimony was not being used substantively, only to discredit Anderson’s testimony that no such handgun was in his apartment on the date of the search. The trial court ruled that the probative value far outweighs any prejudice, furthering explaining it ruling as based additionally on the explain the close temporal relationship between the rape on December 22, 1989 and the search of the apartment on January 5, 1990.
On appeal, the Court of Special Appeals (CSA) conducted an analysis of this evidence under Rule 5-616(b)(2) and advised that the D.C. police report and the detective’s testimony were certainly "extrinsic evidence" that the State was using to impeach the defendant’s testimony by contradiction, since the defendant testified there was no handgun in his apartment where he lived. It further noted that this evidence only related to the defendant’s credibility.
The question was not whether the defendant’s credibility was a collateral issue, but whether the fact or matter that was being used to impeach his credibility was a collateral issue. The State had no proof the handgun was used in the December 22, 1989 rape. Absent any evidence connecting the handgun found in the defendant’s apartment to the handgun used against the victim on December 22, 1989, there was no "tendency to make the existence of any fact that [was] of consequence to the determination of the [rape charges] more probable or less probable than it would be without the evidence" of the fact.
An irrelevant fact does not become relevant merely because there is extrinsic evidence to contradict it.
The CSA determined that the probative value of the handgun found in the apartment was non-existent. It further stated that even if there was some negligible probative value, it was substantially outweighed by the danger of unfair prejudice, a confusion of the issues, and misleading the jury. The defendant never testified that he did not have access to a handgun. Additionally, it was not made clear to the jurors why the D.C. apartment was searched. The jury could have incorrectly inferred that the search was conducted in connection with the Maryland case. Even if the jurors were told that the search was for another case; that fact would have been highly prejudicial in the same wasy that propensity evidence is prejudicial. The close temporal relationship between the alleged rape and the search aggravated the prejudicial effect of the irrelevant evidence. The jury was never informed that the State did not believe the handgun found was the one used in the Maryland rape. The victim said that the men who raped her used a gun with a blue handle and the name of the gun found was a "Navy Model" revolver, and in rebuttal closing, the prosecutor described the handgun found in the defendant’s apartment as "blue."
The CSA held that the testimony about the handgun was not harmless beyond a reasonable doubt.
Anderson provides an informative overview of the analysis that the trial court must engage in to determine whether extrinsic evidence is collateral or non-collateral. It emphasizes that relevancy trumps admissibility.
Other cases before Anderson have provided guidance to when such evidence should be admitted or excluded as evidence in the trial. Rule 5-616(b)(2) was derived from the holding in Smith v. State, 273 Md. 152 (1974) which was decided before the 1994 adoption of the Maryland Rules of Evidence.
In Smith, a husband was shot by his wife and was taken to the hospital where he later died. Before dying, the husband told the police officer that his wife was the shooter and he "would get her." The wife’s defense was that the shooting was accidental. The officer testified at trial about what the husband told him. On cross-examination, the officer said he remembered getting a phone call from an investigator of the public defender’s office. The officer was asked whether it was true that he told investigator that the husband said the shooting was accidental. The officer denied that such a statement had been made by the husband.
In the defense case, the defendant sought to call the investigator to testify as to his phone call with the officer and that the officer said the husband told him the shooting was accidental. The trial court ruled the testimony was inadmissible hearsay. The Court of Appeals concluded that the trial court erred in that ruling and reversed the conviction.
The Smith Court instructed as to how to apply the "test of collateralness" when analyzing whether the at-issue fact is relevant independent of the contradiction:
The analysis is made by looking at the subject matter of the evidence as if it were being offered for substantive purposes, even though it is being offered only to impeach. One must look at the subject matter of the evidence offered and determine whether the subject matter is relevant and material to the substantive issues in the case (issues that would have been a proper subject of proof, even if the particular witness sought to be impeached had not testified); if so, the contradictory extrinsic evidence is admissible, because it does not pertain to a collateral matter.
The Smith Court held that the investigator’s testimony would be relevant because it could shed light on whether the shooting was accidental and, therefore, should have been admitted for the sole purpose of impeaching the testimony of the officer. For that purpose, it was not hearsay.
In Dorsey v. State, 276 Md. 638, 646 (1976), the Court of Appeals held that the collateral evidence elicited from a detective, concerning Dorsey’s arrest-conviction record, was irrelevant and extraneous to the issue of the Dorsey’s guilt or innocence. It held that the trial court's ruling permitting the introduction of the evidence was manifestly erroneous.
In Hardison v. State, 118 Md. App. 225, 235-37 (1997), the CSA held that collateral evidence (a statement) elicited from an eyewitness to a detective after a shooting should have been admitted as non-hearsay to impeach the eyewitness on the stand who gave a different account than what he first told the police. The witness’s out-of-court statement to the officer was not being offered to prove the truth of the assertion but to cast doubt on the witness’s credibility as an eyewitness.
In Stoddard v. State, 423 Md. 420 (2011), a witness’s prior recorded statement to the police stating that the defendant had hit her and threatened to hurt her if she testified against him was admissible extrinsic impeaching evidence at the trial of the defendant’s charges of child abuse to impeach the witness who recanted on the stand, in order to show she had a motive to testify falsely because of fear of the defendant.
Rule 5-616(b) is an underused Rule. It is often forgotten as a useful weapon in an advocate’s evidentiary arsenal. Judges often view the rule with skepticism. However, the Rule is alive, it’s legitimate, and it is an effective weapon for use by both sides of the courtroom. It is useful to review the Rule to determine whether, in your case, the proffered evidence is non-collateral or relevant to a material issue and not simply relevant to the issue of impeachment. Said differently, would the evidence, if introduced absent impeachment, tend to affect another pertinent issue in the case?