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Evidence Fall 2022
Resource 3 . 2 . 9 . 3
5 minutes

OPTIONAL: Discussion of Rule 613 from: THE DISPARATE IMPACT OF THE MARYLAND RULES ON BLACK AND BROWN INDIVIDUALS

April 20, 2021

Prof. Nina Chernoff

This Report was prepared in 2021 at the request of the Rules Review Subcommittee of the Maryland Judiciary’s Committee on Equal Justice. What's exciting is that the authors of this report are law students from two clinics at the Univ. of Maryland School of Law!

This excerpt includes the portion of the report dedicated to Rule 613. Maryland's Rule 613 is a little different from the federal rule - that's why I made this reading optional, beacuse I didn't want to confuse things. But you can jump down to the "Problems" section to see the critique. Also, I've included the relevant footnotes for this section but you don't need to read them.

 

University of Maryland Francis King Carey School of Law Criminal Defense Clinic

Summer Akhtar, Rose Cowan, Meghan Howie, Kathryn Meader, Veronica Mina, Daniel Mooney, Avery Potts, Kelsey Robinson, and Maneka Sinha, Esq.

University of Maryland Francis King Carey School of Law Youth, Education, and Justice Clinic Sarah Abutaleb, Alex Greenspan, Maya Jackson, and Michael Pinard, Esq.

[omitted]

Rule 5-613 Prior Statements of Witnesses

“The credibility of a witness may be impeached by showing that the witness has made” contradictory statements about material facts.278 “Such statements can include those made by the witness in the form of testimony at a prior judicial proceeding”279 or a “witness's spoken words reduced to writing by a third party, and the witness ratifies such writing by signing, adopting, or approving it.”280 The impeaching party must establish proper foundation.281 Proper foundation must be laid for admission of “extrinsic evidence of prior inconsistent statements of a witness [] in order to be fair and just to the witness so that he [or she] may be enabled to refresh his [or her] recollection in regard to such statements,” so that he may or she “admit or deny it,” or explain the statement.282 “Before extrinsic evidence may be used to impeach a witness about his [or her] prior inconsistent statement,” the witness must deny the statement.283

Extrinsic evidence of a prior inconsistent statement may be admitted without these requirements under the “interests of justice” exception.284 When evaluating the admissibility of a statement under the “interests of justice” exception, the trial court must weigh the statement against: “(1) the practicability of recalling the witness, including that witness's availability; (2) the significance of the issue to which the statement relates; (3) the probative value of the statement for impeachment purposes; (4) balancing the consequences of not allowing the statement into evidence with the likelihood that, if questioned, the witness could deny the statement or provide a reasonable explanation; and (5) the efficacy of an instruction to a jury that has heard a prior inconsistent statement without comment by the witness who made the statement; calculus should also include consideration of the good faith and reasonable diligence of counsel in discovering the prior inconsistent statement sought to be introduced.”285

The Problems

Impeachment by prior inconsistent statements depends on the accuracy of the initial statement.286 However, research reveals that where the speaker has a certain dialect, the initial statements have a higher rate of inaccuracy.287 These inaccuracies disproportionately affect Black and Brown individuals.288 According to one study of court reporters in Philadelphia, when a witness spoke with a dialect known as African American English, reporters made errors in two out of every five sentences.289 These inaccuracies in transcribed statements undercuts the credibility of Black and Brown witnesses.290

Recommendations

The Maryland judiciary should describe the high rate of inaccuracies in statements of Black and Brown witnesses in a Committee Note. In addition, as research continues about the accuracy of transcription of other American dialects, not just African American English, the judiciary should stay abreast on the results of this research.291 Lastly, the accuracy in dialects of court reporting in Maryland should be tested alongside mainstream English.292

Footnotes:

  • 278 Gonzalez v. State, 388 Md. 63, 70 (2005); see also MD. R. EVID. 5-613 (“(a) Examining witness concerning prior statement. A party examining a witness about a prior written or oral statement made by the witness need not show it to the witness or disclose its contents at that time, provided that before the end of the examination (1) the statement, if written, is disclosed to the witness and the parties, or if the statement is oral, the contents of the statement and the circumstances under which it was made, including the persons to whom it was made, are disclosed to the witness and (2) the witness is given an opportunity to explain or deny it. (b) Extrinsic evidence of prior inconsistent statement of witness. Unless the interests of justice otherwise require, extrinsic evidence of a prior inconsistent statement by a witness is not admissible under this Rule (1) until the requirements of section (a) have been met and the witness has failed to admit having made the statement and (2) unless the statement concerns a non-collateral matter.”); Thomas v. State, 213 Md. App. 388, 405 (2013) (permitting “impeachment of witness's credibility by evidence that the witness made a prior statement that is inconsistent with his [] in-court testimony”).
  • 279 Gonzalez, 388 Md. at 71.
  • 280 Hardison v. State, 118 Md. App. 225, 241 (1997).
  • 281 See Gonzalez, 388 Md. at 70; Thomas v. State, 213 Md. App. 388, 405 (2013).
  • 282 Jones v. State, 178 Md. App. 123, 135–36 (2008).
  • 283 Hardison, 118 Md. App. at 240.
  • 284 See MD. R. EVID. 5-613(b).
  • 285 Fontaine v. State, 134 Md. App. 275, 297 (2000).
  • 286 See MD. R. EVID. 5-613.
  • 287 John Eligon, Speaking Black Dialect in Courtrooms Can Have Striking Consequences, N.Y. TIMES (Jan. 25, 2019), https://www.nytimes.com/2019/01/25/us/black-dialect-courtrooms.html.
  • 288 Id.
  • 289 Cassie Owens, Are Philly court reporters accurate with black dialect? Study: Not really., PHILA. INQUIRER (Jan. 22, 2019), https://www.inquirer.com/news/court-reporter-stenographerafrican-american-english-aave-philly-transcript-study-20190122.html (“Roughly 40 percent of the sentences the court reporters transcribed had something wrong. Sixty-seven percent of attempts at paraphrasing weren’t accurate. And 11 percent of transcriptions were called gibberish”).
  • 290 Eligon, supra note 287.
  • 291 Owens, supra note 289. 292 Id.

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