explaining that prior to the enactment of CJ § 9-115,14 “a character witness could testify only as to what he heard from others about the defendant’s reputation, and not to his opinion of the witness’s truthfulness[]”
How later courts described this case
- explaining that prior to the enactment of CJ § 9-115,14 “a character witness could testify only as to what he heard from others about the defendant’s reputation, and not to his opinion of the witness’s truthfulness[]”
- indicating, among other references to the evidence, that “four individuals testified that Jensen told them, or that they overheard him, either revealing the details or bragging about the killing”
- "Rule 5-608 unquestionably intended to modify Maryland law, in particular, Hemingway v. State .... ’’
Written by the judges who cited it.
The opinion
CHASANOW, Judge,
concurring and dissenting.
I concur with the majority that Jason Jensen’s convictions should be affirmed, but I disagree with the majority’s conclu *723 sion that the trial judge abused his discretion in restricting the testimony of a character witness who stated that a material state’s witness was a “compulsive liar.” Although a qualified witness may testify to another witness’s bad reputation or character for truthfulness, the witness should not be permitted to add an indication of a psychological defect such as “pathological” or “compulsive.” If, as in the instant case, the character witness blurts out an improper character trait, the witness should not be permitted to explain how the improperly expressed opinion was arrived at.
Since the trier of fact has only a brief opportunity to observe a witness and little basis for making critical judgments about a witness’s veracity, we allow impeachment of a witness by evidence of the witness’s character or reputation for untruthfulness, but we try to do so in a manner that minimizes the inflammatory nature of this evidence. One way we limit this character for untruthfulness testimony is by circumscribing the character trait. We do not allow veracity character impeachment by testimony that the witness is immoral or corrupt; we limit the character impeachment to “untruthfulness.” See Maryland Rule 5—608(a)(1), which provides in pertinent part:
“In order to attack the credibility of a witness, a character witness may testify (A) that the witness has a reputation for untruthfulness, or (B) that, in the character witness’s opinion, the witness is an untruthful person.”
See also 1 John W. Strong, McCormick on Evidence § 43, at 157 (4 th ed.1992), noting that the relevant character trait is limited to bad character for truth and veracity. There is an obvious difference between an untruthful person and a person who has an uncontrollable compulsion to lie. Wester’s Third New International Dictionary 468 (1986) defines “compulsive” as “having power to compel ... exercising or applying compulsion ... produced or caused by compulsion ... of, having to do with, caused by, or suggestive of psychological compulsion or obsession.” When the character witness went beyond the permissible testimony concerning truthfulness and added the inference of an irresistible or uncontrollable need to *724 lie, the trial judge did not abuse his discretion in refusing to allow the witness to express a basis for this improperly volunteered opinion. Cf. Clark v. State, 332 Md. 77 , 629 A.2d 1239 (1993). Having volunteered an improper opinion bordering on a psychological diagnosis, the witness should not be permitted to reinforce her testimony by expressing how she arrived at the opinion.
In addition to the trial judge being entitled to restrict testimony about the basis for an improperly expressed opinion, the majority seems to fail to recognize a vital distinction in the application of Md. Rule 5-608(a)(3)(B). It is quite clear that the rule is intended to allow the character witness to express the reasonable basis for arriving at an opinion, not the reasonable basis for the opinion arrived at. The relevant provision of Md. Rule 5-608 is:
“(3) Limitations on character witness’s testimony
(B) On direct examination, a character witness may give a reasonable basis for testimony as to reputation or an opinion as to the character of the witness for truthfulness or untruthfulness, but may not testify to specific instances of truthfulness or untruthfulness by the witness.”
Professor McLain, one of the Reporters for the Evidence Subcommittee that drafted the evidence rules, explains the rule in her book Maryland Rules of Evidence:
“The second sentence of subsection (a)(3) provides that, on direct examination, a character witness may give a ‘reasonable basis’ for testimony as to (1) the reputation for truthfulness of, or (2) the character witness’s opinion as to the truthfulness of, the principal witness. But the Rule goes on to adopt the substance of Fed.R.Evid. 608(b)(2)— that specific instances of conduct by the principal witness may be inquired into on cross-examination of the character witness—as a limitation on direct examination. The Rule overrules Hemingway v. State, 76 Md.App. 127 , 543 A.2d 879 (1988), insofar as that decision permitted (indeed, required) a character witness to state on direct the specific *725 acts of the other witness that had led the character witness to form his or her opinion.
A ‘reasonable basis’ for reputation testimony under the Rule, therefore, would be that the character witness and the other witness have both been members of a particular community for a certain period of time, and that the character witness had heard of the other witness’s reputation there.
Similarly, a ‘reasonable basis’ for opinion testimony would be how long and under what circumstances the character witness knows the other witness, e.g., they have worked side by side on the assembly line for ten years and they eat lunch together every workday. See Fed.R.Evid. 608, Advisory Committee’s note (‘[Tjestimony of specific instances is not generally permissible on the direct examination of an ordinary opinion witness to character. * * * Opinion testimony on direct ... ought in general to correspond to reputation testimony as now given, ie., be confined to the nature and extent of observation and acquaintance upon which the opinion is based.’); 3 Weinstein & Berger, Weinstein’s Evidence ¶ 608[03] at 608-24 and ¶ 608[04] at 608-27 (1993).” (Citations omitted)(emphasis supplied).
Lynn McLain, Maryland Rules of Evidence § 2.608.4, at 149 (1994 ed.).
In order for a character witness to testify about the untruthful character or bad reputation for truthfulness of another witness, the character witness should establish a basis of knowledge. This is a predicate to the admissibility of the reputation or character for truthfulness and this is what Md. Rule 5-608(a)(3)(B) refers to when it allows the “reasonable basis for testimony as to reputation or an opinion as to the character of the witness for truthfulness or untruthfulness .... ” This permissible testimony concerns how long and under what circumstances the character witness knew the primary witness, or how often and under what circumstances the character witness discussed the reputation of the primary witness. This permissible testimony about the basis of knowledge for the opinion or reputation of untruthfulness is far *726 different from testimony concerning specific instances of untruthfulness that is prohibited by the rule.
In the instant case, the testimony at issue was that “[a] lot of the stories that he told me didn’t add up” and “one day he would tell me something that happened on that day and then a couple days later he would tell me something [absolutely inconsistent with the first version].” This testimony is far more analogous to the prohibited specific acts of untruthfulness than to the permissible basis for knowledge of the witness’s character. I do not believe the trial judge abused his discretion in prohibiting this testimony.