by Sam Rutherford

The Supreme Court of Maryland announced a new rule of constitutional law permitting defendants to ask potential jurors during jury selection whether they are predisposed to believe or disbelieve a child-witness whenever (1) grounds exist to reasonably conclude that jurors may be more or less likely to believe the child’s testimony based solely on the child’s age and (2) when the child’s testimony is important to the case. In so holding, the Court partially abrogated its prior decision in Steward v. State, 923 A.2d 44 (Md. 2007). The Court also took the opportunity to clarify the law related to voir dire in Maryland.

Background

In May 2022, Charles Mitchell was convicted of sexually abusing his minor daughter and sentenced to 25 years in prison, with all but five years suspended. No one witnessed the alleged abuse, and the defense theory was that an adult had coached Mitchell’s 10-year-old daughter to testify against him.

During jury selection, defense counsel asked the trial court to ask potential jurors the following question: “Do you have any concerns about a child testifying? Does anyone not believe that a child is capable of lying about a serious crime like this?” The trial court agreed to ask the first part of the question but refused to ask the second part. However, the court did ask whether potential jurors would give more or less “weight to the testimony of a police officer merely because the witness is a police officer?” No prospective juror answered affirmatively to these questions.

Mitchell timely appealed his conviction, arguing that the trial court violated his right to a fair and impartial jury by refusing to ask during voir dire whether any of the prospective jurors were more or less likely to believe a child-witness based solely on his or her age. The Maryland Appellate Court affirmed. Although acknowledging that trial judges must ask voir dire questions designed to reveal a specific cause for disqualification, the Maryland Supreme Court held in Steward that questions concerning the credibility of child-witnesses do not support disqualification for cause and therefore need not be asked.

The Maryland Supreme Court granted discretionary review and reversed.

Analysis

The Court began its analysis by noting that the “Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights guarantee criminal defendants the right to a fair and impartial jury,” and this right means “that members of the jury not hold biases that are directly related to the defendant, the crime(s) with which the defendant is charged, or the witnesses who will testify in the case.”

“The primary mechanism to identify such disqualifying biases among potential jurors is voir dire,” the Court stated. Curtin v. State, 903 A.2d 922 (Md. 2006). But Maryland has a somewhat unique limited voir dire system—while it is designed to ferret out “the existence of specific cause for disqualification,” it is not intended to facilitate an attorney’s “intelligent exercise of peremptory challenges.” Pearson v. State, 86 A.3d 1232 (Md. 2014). That is, trial judges, not the attorneys, ask voir dire questions during jury selection, and they have broad discretion in the types of questions asked. While attorneys may propose specific questions, judges are only required to ask those questions “reasonably likely to reveal specific cause for disqualification.” Kazadi v. State, 223 A.3d 554 (Md. 2020).

“There are two categories of specific cause for disqualification: (1) a statute disqualifies a prospective juror; or (2) a collateral matter is reasonably liable to have undue influence over a prospective juror.” Quoting Collins v. State, 205 A.3d 1012 (Md. 2019). The second category comprises “biases directly related to the crime, the witnesses, or the defendant.” Id. The question presented in the present case was whether Mitchell’s proposed question about child-witness testimony falls within this second category.

In Steward, the Maryland high court held that trial judges are not required to ask voir dire questions such as “How many of you believe children always tell the truth?”; “Do you believe children are more or less honest than adults?”; or “Would you automatically believe an adult over a child or a child over an adult who testifies?” It reasoned that such questions do not fall “within the mandatory areas of inquiry” because they are not “reasonably likely to reveal cause for disqualification and none of them dealt specifically with the facts of the case, the crime, the witnesses, or [the defendant] himself.”

Mitchell argued, and the Court agreed, that Steward was wrongly decided and should be overruled based on its lack of “specific reasoning” rejecting the proposed questions and because of significant changes in the law governing voir dire.

To begin with, the Court explained that Maryland courts have long held that trial judges must ask potential jurors if they will give more or less weight to witness testimony based solely on the status of the witness. Langley v. State, 378 A.2d 1338 (Md. 1977), for example, held that judges must ask jurors whether they would give “greater weight” to a police officer’s testimony at least when such testimony is central to the prosecution’s case. Similarly, in Bowie v. State, 595 A.2d 448 (Md. 1991), the court held that judges must ask jurors whether they would view a witness’ testimony with “more skepticism” simply because they were called by the defense. Judges must also ask jurors about “racial bias.” Hill v. State, 661 A.2d 1164 (Md. 1995). And finally, judges must ask questions designed to identify jurors who would “prefer the testimony of State’s witnesses over defense witnesses.” Marquardt v. State, 882 A.2d 900 (Md. 2005).

Maryland appellate courts have recognized that this line of authority “stands broadly for the proposition that if a potential juror is likely to give more credibility to a specific witness based on that witness’s occupation, status, category, or affiliation then, upon request, the trial judge must ask a voir dire question that seeks to uncover that bias,” the Court stated. Thomas v. State, 165 A.3d 368 (Md. 2017). The Court declared that because Steward failed to grapple with this pre-existing precedent, it was wrongly decided and must be overruled. The subsequent decisions in Thomas and Moore made the necessity of abrogating Steward all the more apparent.

Thus, the Court announced that moving forward, trial judges in Maryland are required to ask voir dire “questions designed to uncover prejudgment of credibility with respect to statuses, categories, occupations, and affiliations of witnesses … when the court reasonably determines that such bias could affect the fairness of the trial.” The Court instructed that such questions are required in two circumstances: (1) “there must be a qualifying witness, one, who, because of occupation or category, may be favored, or disfavored, simply on that basis” and (2) “where the bias relates to a witness’s status—such as the status of being a child—the witness’s testimony must be important to the case.”

With this new rule in mind, the Court turned to the facts in Mitchell’s case. His appellate attorney cited both scientific studies and anecdotal evidence suggesting that some jurors may automatically credit child-witness testimony based solely on the child’s age, while others may find such testimony automatically suspect. The State did not meaningfully dispute this evidence. Thus, the Court held that Mitchell was entitled to a new trial because the “trial court abused its discretion by not asking a proper and effective voir dire question aimed at uncovering such disqualifying bias.”

Conclusion

Accordingly, the Court reversed Mitchell’s conviction and remanded the case for a new trial. See: Mitchell v. State, 321 A.3d 116 (Md. 2024).

Editor’s note: Anyone interested in the issue of voir dire involving child-witnesses is encouraged to read the Court’s full opinion.  

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