When your defense involves you testifying in your trial, the prosecution is almost certainly going to do something called “impeaching” you. Unlike in politics and government, where impeaching often means seeking to remove an official from office, impeaching in this sense means offering proof that casts doubt upon the truthfulness and reliability of the person testifying. Whether or not you’re testifying in your own defense at your criminal trial, one thing you definitely need is representation from a skilled and experienced Maryland criminal defense attorney.
There are lots of ways in which the prosecution can try to impeach you as a witness in your own defense. In some circumstances, the law may allow the prosecutor to bring up past criminal convictions you have on your record. One of the rules that the law imposes, however, on this type of impeachment is that the conviction’s significance and connection to the alleged crime(s) at hand must be greater than the potential that the information will unfairly bias the jury against you, the defendant. When you hear a TV lawyer or judge talking about evidence whose “risk of unfair prejudice outweighs its probative value,” that’s what they’re talking about.
Here’s a real-life recent case that gives a good example. B.H. was a man on trial for several serious crimes. A shootout in a parking lot in Baltimore left B.H. facing charges of attempted murder, assault, reckless endangerment, drug possession and several gun crimes. Part of B.H.’s defense was to argue that he did shoot a gun that night, but that he did so in self-defense.
In a situation like this man’s, it may often be beneficial, or even necessary, for the defendant to take the stand. For B.H., his testimony was important to laying out the events of the night in question and his perception to them, which was a vital part of his proof of self-defense.
B.H., though, had a 2007 conviction for sodomy on his record. According to Maryland law, sodomy is a felony crime that is generally allowed to be used for impeaching a witness. In B.H.’s case, the trial judge allowed it, but the Court of Special Appeals ruled that it should have been excluded and that the error so tainted B.H.’s trial that he was entitled to a reversal of his conviction and a new trial.
Strictly speaking, Maryland’s sodomy law bans everything other than what many of us might think of as “straight sex” between heterosexual partners. While B.H.’s 2007 crime technically could have been any of a variety of things, including some types of heterosexual contact that many people might consider fairly ordinary between consenting adults, the word “sodomy” can be a “loaded” one, as it often reflexively calls to the hearer’s mind one of two things: deviant sexual activity or same-sex activity.
The risk of unfair bias was just too great
Unfortunately, even in the 2010s, the bias against gay people and people who have engaged in same-sex contact is very real. In other words, the sodomy charge, with its connotations of deviant sex or gay sex, had a distinct possibility of causing bias. Meanwhile, B.H.’s having engaged in sodomy in 2007 had a very low connection to whether or not he was lying about a 2017 gunfight and his role in it. In other words, the potential for unfair bias was greater than the “probative value” to the jury regarding the actual case at hand.
With a proper motion by the defense, a trial judge should exclude this kind of evidence in circumstances like this.
When it comes to safeguarding your rights before, during and after your criminal trial, and giving yourself the best chance possible at the best outcome possible, contact skilled Maryland criminal defense attorney Anthony A. Fatemi, who has been diligently representing the accused in Maryland for many years. To learn more, contact us at 301-519-2801 or via our online form.