two-witness rule in Maryland

2021App. 334, 342-3 (1998); United States v. Osborne, 886 F.3d 604 , 4 Although not abrogating the two-witness rule in federal courts, the United States Supreme Court, in Weiler v. United States, 323 U.S. 606, 608 (1945), observed as follows: “Our system of justice rests on the general assumption that the truth is not to be determined merely by the number of witnesses on each side of a controversy.

2021App. at 475 , 126 A.3d at 133-34 (permitting video to independently corroborate the falsity of defendant’s statement).15 Federal courts have similarly applied the two-witness rule to the element of falsity in a substantially similar federal perjury statute.16 Weiler, 323 U.S. at 607 , 65 S. Ct. at 549 (“The general rule in prosecutions for perjury is that the uncorroborated oath of one witness 15 A majority of our sister jurisdictions have also limited the application of the two- witness rule to the element of falsity.

2021Pursuant to [that] mandate, we explicitly hold that where the State produces and relies upon circumstantial evidence, that circumstantial evidence in and of itself may be sufficient for a conviction of perjury, and the two witness rule is not applicable.” Id. at 426 . 7 The two-witness rule has long been the subject of criticism.

2021The two-witness rule describes the minimum evidence needed to establish the falsity of a statement.14 Brown, 225 Md. at 616 , 171 A.2d at 458 (“The rule that testimony 14 While appellate courts have criticized the two-witness rule as an anachronism, see e.g., Smith v. State, 51 Md.

2021See, e.g., Hourie I, 53 Md.

2021Judge Moylan wrote “the two- witness rule is an alien from a long-dead world that was, during the English Civil War, accidentally caught in a time warp.” Id. at 69 .

2021In defining the two-witness rule’s parameters, the Court observed that the rule had “been relaxed so as to allow a conviction of perjury to stand if there are two witnesses, or one witness corroborated by circumstances proved by independent testimony.” Id.

2021Rather, the State may obtain a conviction for perjury if it produces “evidence of a different kind,” Hourie II, 298 Md. at 61 (internal quotation marks and citation omitted), that is sufficient to prove the element of falsity beyond a reasonable doubt (assuming, of course, that the State also proves the other elements of perjury). 1 As discussed above, prior cases discussing the two-witness rule have stated that, if the State produces direct and positive witness testimony as to falsity, as well as corroborating circumstantial evidence, the circumstantial evidence must be “of such a nature so a

2021In this Court’s review of the Court of Special Appeals’ decision in Hourie I, we stated that the two-witness rule should “be limited to the situation for which it was designed, namely to prevent a conviction of perjury when there is no evidence other than the word of one witness against that of the defendant,” and that the rule “has no place in a case in which the falsity of [a] defendant’s testimony can be established by evidence of a different kind.” Hourie v. State, 298 Md. 50, 60-61 (1983) (“Hourie II”) (quoting R.

2021Rather, the State may obtain a conviction for perjury if it produces “evidence of a different kind,” Hourie II, 298 Md. at 61 (internal quotation marks and citation omitted), that is sufficient to prove the element of falsity beyond a reasonable doubt (assuming, of course, that the State also proves the other elements of perjury). 1 As discussed above, prior cases discussing the two-witness rule have stated that, if the State produces direct and positive witness testimony as to falsity, as well as corroborating circumstantial evidence, the circumstantial evidence must be “of such a nature so a

2015Previous to Stewart , the Second Circuit discussed the requirements of the two-witness rule when only one witness presents direct evidence in United States v. Weiner, 479 F.2d 923 (2d Cir.1973).

2015In determining that this evidence was sufficient to satisfy the two-witness rule, the Court noted that the requirement of a second witness may be fulfilled by “other evidence of independent probative value, circumstantial or direct, which is of a quality to assure that a guilty verdict is solidly founded.” Id. at 926, 928-29 (citations and internal quotation marks omitted).

2015To satisfy this final piece of the two- witness test, we adopt the Second and Seventh Circuits’ view that, when the direct testimony from one witness and the independent corroborative evidence are considered together, there must be sufficient evidence “to establish the falsity of the accused’s statements under oath beyond a reasonable doubt.” Diggs, 560 F.2d at 270 ; see Stewart, 433 F.3d at 315 ; Weiner, 479 F.2d at 926 .

2015To satisfy this final piece of the two-witness test, we adopt the Second and Seventh Circuits’ view that, when the direct testimony from one witness and the independent corroborative evidence are considered together, there must be sufficient evidence “to establish the falsity of the accused’s statements under oath beyond a reasonable doubt.” Diggs, 560 F.2d at 270 ; see Stewart, 438 F.3d at 315; Weiner, 479 F.2d at 926 .

2021This was nine years after this Court first discussed the two-witness rule in Brown, and 25 years after the Supreme Court preserved the two-witness 11 In State v. Storey, 182 N.W. 613, 615 (Minn. 1921), the Minnesota Supreme Court held that “perjury may be proved by circumstantial evidence [alone] if proof is made beyond reasonable doubt, as in the case of other crimes.” The Storey Court was not “primarily concerned with the question whether the direct testimony of one witness without more will sustain a conviction, for in [Storey’s] case there was no direct testimony of the falsity of the oath

2021The evidence was circumstantial.” Id. at 614-15 . 12 See Ala. Code § 13A-10-105 (2021); Ark.

2021Evidence always contains some ambiguity, 33 but the two-witness rule does not require circumstantial evidence to be perfect.17 “The test” for whether evidence satisfies the two-witness rule is “whether the evidence is of a quality to assure that a guilty verdict is solidly founded.” Id., 467 A.2d at 1023 ; see also United States v. Wood, 39 U.S. 430, 439-40 (1840) (“The question is, when and how the rule is to be applied, that it may not, from a technical interpretation, or positive undeviating adherence to words, exclude all other testimony as strong and conclusive that which the rule require

1969The illustrious Judge Learned Hand in Cohen v. United States, 27 F. 2d 713 (2nd Cir. 1928) held that the two-witness rule did not apply to the solicitation part of subornation saying at page 714: “It is, of course, well settled that the perjury must be proved by two witnesses or by one with corroboration, U. S. v. Wood, 14 Pet. 430 , 10 L.Ed. 527 ; and this is also true in cases of subornation, Hammer v. U. S., 271 U. S. 620 , 46 S. Ct. 603 , 70 L.

2021Both go to the weight to be accorded testimony by the jury; and the ordinary rule is that charging as to such matters should rest in the sound discretion of the trial judge, upon whom rests the duty of guiding and directing the jury in their consideration of the case.” In Cohen v. United States, 27 F.2d 713, 714 (2d Cir. 1928), Judge Learned Hand, in commenting on the two-witness rule, observed as follows: “The doctrine itself has indeed a rational basis when applied to mere recantations, though it must be owned that, if extended to 4 the oath of another than the perjured witnesses, it is hard

1969The illustrious Judge Learned Hand in Cohen v. United States, 27 F. 2d 713 (2nd Cir. 1928) held that the two-witness rule did not apply to the solicitation part of subornation saying at page 714: “It is, of course, well settled that the perjury must be proved by two witnesses or by one with corroboration, U. S. v. Wood, 14 Pet. 430 , 10 L.Ed. 527 ; and this is also true in cases of subornation, Hammer v. U. S., 271 U. S. 620 , 46 S. Ct. 603 , 70 L.

2015The State urges this Court to abandon the two-witness rule as “an artifact of the jurisprudence of the Court of Star Chamber.” According to the State, “[t]he last time the Court of Appeals discussed the two-witness rule in any detail was more than 50 years ago in Brown , where it criticized the rule.” The State argues that “the law of perjury should be made *478 consistent with the law of virtually every other crime in the State of Maryland—the finder of fact is entitled to make assessments of credibility without regard to the number of witnesses on either side.” The State concludes that, alth

2015The State urges this Court to abandon the two-witness rule as “an artifact of the jurisprudence of the Court of Star Chamber.” According to the State, “[t]he last time the Court of Appeals discussed the two-witness rule in any detail was more than 50 years ago in Brown , where it criticized the rule.” The State argues that “the law of perjury should be made *478 consistent with the law of virtually every other crime in the State of Maryland—the finder of fact is entitled to make assessments of credibility without regard to the number of witnesses on either side.” The State concludes that, alth

2015To corroborate her testimony, the Government introduced a computerized phone log kept by the personal assistant, which read “Peter Bacanovic thinks [the stock] is going to start trading downward.” Id. *484 On appeal to the Second Circuit, Bacanovic contended that his conviction for perjury could not stand under the two-witness rule, “because it rested on the uncorroborated testimony of one witness.” Id. at 315 .

2015To corroborate her testimony, the Government introduced a computerized phone log kept by the personal assistant, which read “Peter Bacanovic thinks [the stock] is going to start trading downward.” Id. *484 On appeal to the Second Circuit, Bacanovic contended that his conviction for perjury could not stand under the two-witness rule, “because it rested on the uncorroborated testimony of one witness.” Id. at 315 .

2021However, this burden does not justify a “departure from the established rules of law.” Loeffler v. Carey, 181 Md. 648, 652 (1943). 2.

2021Outside of these exceptions, to abide by stare decisis “is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Livesay v. Baltimore Cty., 384 Md. 1, 14 (2004) (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)). 20 Neither of these exceptions applies with respect to the two-witness rule.

2021Outside of these exceptions, to abide by stare decisis “is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Livesay v. Baltimore Cty., 384 Md. 1, 14 (2004) (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)). 20 Neither of these exceptions applies with respect to the two-witness rule.

2021App. 420, 427 , 722 A.2d 428, 432 (1999), because the common law language used to describe the mens rea element of perjury (e.g., willfully, deliberately, knowingly, and corruptly) overlaps with the element of falsity.

2021McGagh contends that the two-witness rule applies to the “essence” of perjury, Palmisano v. State, 124 Md.

2021See Hourie v. State, 298 Md. 50, 64 , 467 A.2d 1016, 1024 (1983) (noting no direct testimony was offered relevant to the falsity of the defendant’s statements); see also Mason v. State, 225 Md.

2021App. at 475 , 126 A.3d at 133-34 (permitting video to independently corroborate the falsity of defendant’s statement).15 Federal courts have similarly applied the two-witness rule to the element of falsity in a substantially similar federal perjury statute.16 Weiler, 323 U.S. at 607 , 65 S. Ct. at 549 (“The general rule in prosecutions for perjury is that the uncorroborated oath of one witness 15 A majority of our sister jurisdictions have also limited the application of the two- witness rule to the element of falsity.

2021See, e.g., Johnson v. State, 227 Md. 159, 163 (1961) (“Everyone accused of crime is presumed to be innocent; and, in order to justify a finding of guilt, it is incumbent upon the State 13 Article 23 of the Maryland Declaration of Rights provides, in part: “In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.” 14 For a discussion of this practice, see Stevenson v. State, 289 Md. 167 (1980), overruled by Unger v. State, 427 Md. 383 (2012). 28 affirmatively to estab

2021See also State v. Levitt, 48 Md.