COSA Dissent Watch: Questioning Police Officer Testimony and Bias in Voir Dire
The case: Lapole v. State, Sept. Term 2014, No. 2169 (June 27, 2016)
The questions: Can a voir dire question about bias regarding testimony of police officers reference other professions as well? Is the failure to properly give that question subject to harmless-error review?
The facts: At Grason Lapole’s trial on charges of sexual abuse, the State listed two police officers as potential witnesses. Both Lapole and the State requested that the Court specifically ask potential jurors whether they would assign more or less credibility to a witness merely because he was a police officer. (I’m going to call that the “officer-testimony question.”) During voir dire, the Court declined to use the wording proposed by either side, and instead asked if any of the prospective jurors
would automatically give more or less weight to the testimony of any witness … merely because of the witness’ title, profession, education, occupation, employment? … [C]ould you sit and listen objectively to the testimony of any witness, regardless of what side called them, and regardless of their title, profession, education, occupation or employment? … [W]ould you be able to judge the credibility of each witness’ testimony based on the totality of their testimony rather than which, whichever side called them, or rather than relying on their title, profession, education, occupation, or employment? For example, would any of you automatically give more or less weight to the testimony of a physician, a clergyman, a police officer, a firefighter, a psychiatrist, social worker or other witness merely because of their title, profession, education, occupation, or employment?
Lapole’s counsel objected and asked for a question specifically asking whether potential jurors would assign different credibility to a witness’ testimony merely because he was a police officer. The court overruled the objection and declined to give the more particularized instruction, stating that its content was “already covered” in the broader one. Only one of the two officers was used as a witness; he testified that he was assigned to the investigation and interviewed the victim, who was emotional, as well as her family. Lapole was convicted on multiple sexual abuse and assault charges and sentenced to 35 years of incarceration.
The majority opinion (Reed, joined by Leahy): The majority found that it was an abuse of discretion to refuse the defendant’s request to ask a specific officer-testimony question, because, even if the broader question technically satisfied the requirement to ask about such potential bias, “it certainly did not comply with the spirit” of that requirement. The majority opined that the testimony of police officers in criminal trials — with higher stakes than in civil litigation — carries a “markedly different connotation” than the testimony of other witnesses. As such, the broader question including police officers in a list of multiple other occupations improperly “conflated the role of a police officer in a criminal case to that of any ordinary witness,” did not sufficiently indicate to the jurors what potential bias or prejudice was being asked about, and therefore did not sufficiently expose any specific bias the jurors may have had in favor of police officers.
The majority also could not find, beyond a reasonable doubt, that the error was harmless. It analogized the officer-testimony question to a question regarding the credibility of defense witnesses (known as the “defense witness question” in the crim-law biz), which, if not asked when requested, is a reversible omission without harmless-error review. As such, the majority sent the case back to the circuit court for a new trial.
The concurrence: To Judge Leahy, the references to irrelevant professions violated the guidance in Washington v. State, 425 Md. 306, 320 (2012), and Moore v. State, 412 Md. 635, 655 (2010), that an inquiry into bias regarding a witness’ profession be adapted to fit the particular facts, circumstances, and witnesses of the case. She would hold that the officer-testimony question could, in some circumstances, be combined with a more general question referring to other professions — but not when the police officer is the only witness being presented to the jury as a professional, the other professions mentioned in the question are irrelevant, and neither the prosecution or defense have requested a question involving other professions.
The dissent: Judge Raker felt that the broader question fairly uncovered any potential bias among the potential jurors in favor of the police officer, and she would have upheld on that basis. More influential to her thinking, however, was the “inconsequential” nature of the police officer’s testimony, which she believed made any error harmless. In determining whether the failure to ask the officer-testimony question was too prejudicial or harmless error, the majority of federal courts (and many other state courts) apply the so-called “Brown-Baldwin rule,” weighing the importance of the testimony to the case as a whole and the extent to which the officer’s credibility is put into issue — and will not reverse a verdict when the police officer’s testimony was only marginally important. Deeming the officer’s testimony in the case inconsequential, irrelevant, and “marginal, at best,” she would have held the error was harmless and upheld the judgment.
Notes: This was an unreported opinion, and therefore, of course, has no value as precedent or persuasive authority in Maryland courts. If a court in another jurisdiction was to evaluate the decision, however, it might want to know the extent to which Judges Reed and Leahy are in agreement about when a specific officer-testimony question has to be asked. And it’s a little unclear whether Judge Reed would require the separate question whenever requested. Given the amount of ink he spends on explaining why police officers are unlike other professions in the context of juror bias, his reasoning certainly suggests that the particularized question is a necessity, but he also includes a caveat eschewing a “bright-line rule where the police officer question must be worded a specific way[.]”
Judge Leahy’s concurrence is a little more precise, in that she would require that the question not reference other irrelevant professions — a position that fits well with the two cases she cites and their emphasis on tailoring such questions to the actual witnesses that will be testifying. (As stated in Moore, which Judge Raker also cites, it is “the nature of … who the witnesses were that would determine the questions, about which occupations and categories, had to be asked to uncover prejudicial or disqualifying bias” (emphasis added).) To the extent Judge Reed’s opinion is broader than that (and it certainly reads that way), Judge Leahy’s more narrow analysis would be the one that two judges agree on and therefore presumably the panel’s true holding.
To the merits of the dispute, it doesn’t really seem up for debate that discussing things in lists rather than individually can be problematic. Anyone who’s taken an introductory psychology course might recall a host of cognitive biases that lists bring into play; list-length, list-strength, primacy, recency, serial position, and other well-studied effects all mess with our ability to give our full attention to any one item in a list. In that context, it’s hard to fully accept Judge Raker’s belief that the trial court’s references to physicians, clergymen, firefighters, psychiatrists, and social workers did “not diminish the inquiry as to the weight a juror might give” to just a police officer’s testimony. Of course, even if the focus on police officer testimony is diminished somewhat, that doesn’t mean the question is automatically invalid — it would only be impermissible if it diverted so much attention away from police officers so as to render the question unfair or ineffective. The disagreement between Judges Reed and Raker regarding whether that had happened in this case seems largely a difference of intuition.
The last issue is an important one. As noted by Judge Raker, a lot of courts out there apply some sort of harmless-error test or standard (often based on the well-established Brown-Baldwin rule) in assessing the prejudicial effect of an officer’s testimony before undoing an entire trial for failure to ask the officer-testimony question. Even the majority’s take on the testimony of the officer in the case — essentially admitting that it wasn’t very important or material — all but concedes that it wouldn’t meet such a threshold for reversal. Considering their analogy to the defense-witness question, Judges Reed and Leahy would (if the opinion had been reported, at least) seemingly give Maryland a per se reversal rule for the failure to ask a relevant officer-testimony question. If that’s where the law is heading on this, criminal-justice practitioners are going to want to be on top of it.
Certiorari prospects: Good. Overturning a conviction for a not-quite-so-well-established procedural flub is a big deal, particularly when the intermediate court’s opinion, though unreported, suggests that flub will very frequently require reversal. Moreover, the majority’s opting out of a harmless-error analysis effectively takes sides in a jurisdictional split — and the Court of Appeals usually likes to be the one to make such calls.