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Maryland high court reaffirms ‘two-witness’ rule in perjury cases

Judge Jonathan Biran

A divided Maryland high court this month held fast to its longstanding rule that a person cannot be convicted of perjury based solely on a single individual’s testimony that the accused lied on the witness stand.

In a 5-2 decision, the Court of Appeals reiterated that perjury can be proven only with the testimony of multiple witnesses or of a single witness if corroborated by other evidence such as surveillance footage showing the accused lied.

The court issued its ruling in upholding the perjury conviction of Baltimore police officer Michael O’Sullivan, whose false and damning testimony in Maryland District Court about having seen defendant Yusuf Smith remove a handgun from his waistband was belied not only by Smith’s testimony but by body cameras worn by O’Sullivan and a fellow officer.

The Maryland attorney general’s office had urged the high court to abandon its 60-year-old “two-witness” rule, arguing in vain that it protects perjurers and makes perjury the only crime under state law that requires more than a single witness to prove guilt beyond a reasonable doubt.

The high court rejected that argument, saying the rule it announced in its 1961 Brown v. State decision continues to provide an important safeguard for recalcitrant witnesses.

“Although we doubt that the two-witness rule encourages perjury, we think the rule does encourage a reasonable, truthful witness – who otherwise might be reluctant to testify out of fear that she may not be believed – to provide testimony,” Judge Jonathan Biran wrote for the majority.

“It does so by requiring the state to have more than one person’s uncorroborated contrary account to prosecute the witness for perjury,” Biran added. “This gives the truthful witness confidence that, if the factfinder does not accept the witness’ testimony, the state will not proceed against the witness on a perjury charge based solely on a ‘he said/she said’ dispute.”

The court added that Maryland is not alone, as 16 states have adopted the two-person rule by statute. Five states have laws abrogating the rule and the New Hampshire Supreme Court has declined to adopt it, the court said.

“Indeed, the two-witness rule appears to be thriving nationwide, growing, rather than shrinking, in its applicability,” Biran wrote.

Montgomery County State’s Attorney John McCarthy, who was not involved in the O’Sullivan case, called the two-witness rule a quirk of Maryland criminal law.

“As a matter of law in every other context, a single witness is sufficient,” McCarthy said Monday. “There are far more serious crimes … and we don’t require multiple witnesses to gain a conviction.”

The veracity of Sullivan’s testimony at Smith’s trial was under investigation while Smith was appealing his 2018 handgun conviction in district court to Baltimore City Circuit Court, the high court said.

Prosecutors dismissed their case against Smith and obtained an indictment against Sullivan on charges of perjury and misconduct in office based on his testimony.

At O’Sullivan’s October 2019 bench trial, Smith testified that the police officer lied when he said he saw Smith remove a gun from his waistband and throw it to the ground in Baltimore’s Alameda area. The Baltimore City Circuit Court judge, in finding O’Sullivan guilty of perjury and the related misconduct charge, stated that Smith’s testimony regarding O’Sullivan was corroborated by body camera footage showing “the gun was found so far away that it could not have been tossed” by Smith. The gun would have “had to go around a corner, basically over a fence,” the judge added.

O’Sullivan was given concurrent 15-month sentences for perjury and misconduct.

The intermediate Court of Special Appeals upheld the conviction, saying perjury had been proven by Smith’s testimony as corroborated by the body camera footage.

O’Sullivan then sought review by the Court of Appeals.

The Maryland attorney general’s office also appealed, urging the high court in vain to rule that perjury can be proven based solely on the testimony of a single witness.

Biran was joined in the majority opinion by Chief Judge Joseph M. Getty and Judges Shirley M. Watts, Michele D. Hotten and Brynja M. Booth.

Judges Robert N. McDonald and Irma S. Raker agreed with the court’s affirmance of O’Sullivan’s conviction but said their colleagues should have abandoned the two-witness rule, adding that “in today’s world it makes no sense.”

“Credibility does not depend upon the number of witnesses,” Raker wrote in the dissenting opinion McDonald joined.

“Therefore, as jurors are commonly instructed, the weight of the evidence ‘does not depend on the number of witnesses on either side,’ ” added Raker, a retired judge, sitting by special assignment. “Thus, the testimony of a single witness, if it establishes the elements of an offense or cause of action, and if believed by the jury, may be sufficient to support a verdict.”

Raker, joined by McDonald, urged the Maryland General Assembly to “review the rule and the outmoded reasons supporting it.”

Neither O’Sullivan’s appellate attorney, Thomas M. Donnelly, nor the Maryland attorney general’s office immediately responded to a request for comment Monday.

Donnelly is with the Law Offices of Thomas M. Donnelly LLC in Baltimore.

The Court of Appeals rendered its decision in Michael O’Sullivan v. State of Maryland, No. 3, September Term 2021.

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