Highest Case Note from Write-On 2022: O’Sullivan v. State, 265 A.3d 1015 (Md. 2021)

*Devyn King

The Court of Appeals of Maryland refused to abrogate the two-witness rule for common law perjury cases. O’Sullivan v. State, 265 A.3d 1015 (Md. 2021).

I. Introduction

In O’Sullivan v. State, the Court of Appeals of Maryland assessed the State’s request to abrogate the two-witness rule for misdemeanor perjury offenses.[1] In a perjury trial against a Baltimore City police officer, who made sworn statements that were contradicted by body camera footage, the State submitted the footage into evidence to corroborate the arrestee’s testimony.[2] On a post-conviction cross-appeal, the Court of Appeals refused the State’s petition to abrogate the two-witness rule. The two-witness rule requires direct testimony from at least two witnesses, or independent circumstantial evidence corroborating direct testimony from one witness, to secure a perjury conviction.[3] The Court found that abandoning its precedent would be inconsistent with the doctrine of stare decisis.[4] The holding marks a slight variation in Maryland case law, which previously required evidence of equal weight to that of a second witness and a deviation from the justice system’s pervasive practice of weighing the credibility of the evidence rather than the number of witnesses.[5] The Court affirmed O’Sullivan’s conviction and concluded that the video evidence, in conjunction with the witness’s testimony, was sufficient to satisfy the two-witness rule.[6]

II. Historical Development

A. The United States Supreme Court Retained the Two-Witness Rule Originally Rooted in the Numerical System of English Ecclesiastical Courts.

European law historically relied on a numerical system that required a specific number of witnesses to obtain certain convictions.[7] The system was frequently used in ecclesiastical courts in England,[8] notably the Court of Star Chamber, which almost exclusively tried perjury cases.[9] Because perjury was one of the few cases in which the defendant’s testimony was admitted as evidence, requiring the prosecution to present direct testimony from two witnesses prevented the case from being decided merely by “oath against oath.”[10] When the Court of Star Chamber was abolished and its jurisdiction transferred to the King’s Bench, the two-witness rule transferred with it, rooting itself into the common law.[11]

The United States retained the two-witness rule for many years,[12] despite relying on a qualitative, rather than quantitative, approach to determine guilt.[13] In Weiler v. United States, the Supreme Court expressed the modern rationale for retaining the two-witness rule: “To bar a jury from convicting for perjury on the uncorroborated oath of a single witness.”[14] The Supreme Court reasoned this protection is needed because losing litigants may feel resentment towards adverse witnesses and seek retaliation through a perjury accusation.[15] Consequently, the interests of justice require heightened protection to allow truthful witnesses to testify freely, without fear of undue harassment or unfounded perjury allegations.[16]

B. Maryland Case Law Supports a Relaxed Version of the Two-Witness Rule, Allowing Independent Evidence to Corroborate a Single Witness on a Perjury Charge.

The crime of perjury, codified in the Maryland Code Annotated, Criminal Law, at § 9-101, does not specify a two-witness requirement.[17] Before it decided Brown v. State in 1961, the Maryland Court of Appeals had not addressed the burden of production required for a perjury conviction.[18] In Brown, the Court of Appeals announced a relaxation of the rule to permit a conviction where the State had introduced direct testimony of at least two witnesses or direct and positive testimony of one witness corroborated by independent, circumstantial evidence.[19] To sustain the latter, the combined evidence “must be of such a nature so as to be of equal weight to that of at least a second witness, thus foreclosing any reasonable hypothesis other than the defendant’s guilt.”[20]

Maryland courts subsequently upheld the rule from Brown,[21] though at times criticizing the two-witness rule’s continuation.[22] In Smith v. State, the Court of Special Appeals stated that the Brown “conviction was based solely on circumstantial evidence,” not direct witness testimony.[23] Therefore, where a conviction can be attained on circumstantial evidence alone, “thus foreclosing any reasonable hypothesis other than the defendant’s guilt,”[24] the two-witness rule does not apply.[25] Additionally, the Smith court expressed its belief that the two-witness rule conflicts with the justice system’s universal standard of proof beyond a reasonable doubt.[26]

The Court of Special Appeals’ critique of the two-witness rule continued in Hourie v. State (Hourie I). In Hourie I, the court referred to the two-witness rule as “an alien from a long-dead world that was … accidentally caught in a time warp.”[27] The court found that the purpose of the rule was no longer sound in the current justice system.[28] Charged with determining whether the rule should apply to other crimes subject to the penalties for perjury (i.e., welfare fraud),[29] the court refused to extend the rule, limiting it solely to common law perjury cases.[30]

On appeal, the Court of Appeals affirmed the judgment in Hourie I on different grounds.[31] Instead, the court followed its reasoning in Brown, finding that the circumstantial evidence alone was enough to prove guilt; therefore, the two-witness rule was not applicable.[32] This holding limited the two-witness rule’s application to situations where direct and positive witness testimony is needed to support a conviction,[33] following the same principle established in Smith.[34]

In 2021, in State v. McGagh, the Court of Appeals upheld the relaxed two-witness rule established in Brown, emphasizing that therule applies only to the falsity element.[35] The court found that direct witness testimony and video surveillance footage were sufficient to prove falsity beyond a reasonable doubt.[36] Nevertheless, the court affirmed the two-witness rule’s modern purpose of preventing oath-against-oath situations.[37] Finally, the court reiterated that to satisfy the two-witness rule, the evidence must be of “equal weight” to testimony from a second witness.[38]

C. Federal and State Courts are Split on the Two-Witness Rule.

Maryland courts are not alone in their critique of the two-witness rule; other states’ courts, as well as federal courts, [39] have expressed concern that the rule is no longer consistent with the modern judicial system.[40] At least six  states have abandoned the two-witness rule,[41] while fourteen states continue to follow it.[42] Moreover, subsequent to its implementation of the two-witness rule in Weiler,[43] the Supreme Court explicitly held in In re Winship that due process requires a universal standard of proof beyond a reasonable doubt for every element of a crime to sustain a conviction.[44]

III. Instant Case

Officer Michael O’Sullivan testified at Yusuf Smith’s trial that he observed Smith remove a handgun from his waistband and throw it.[45] The State dismissed the charges against Smith while an appeal of his conviction was pending. Subsequently, a grand jury indicted O’Sullivan for perjury and misconduct in office regarding his testimony at Smith’s trial.[46]

At a bench trial, Smith testified that O’Sullivan’s prior statement that O’Sullivan had seen Smith throw a gun was “inconsistent with the truth.”[47] To supplement Smith’s testimony, the State introduced body camera footage from the investigation which led to Smith’s arrest.[48] The trial court held that the evidence sufficiently demonstrated O’Sullivan was untruthful in his testimony and he was found guilty of perjury and misconduct in office.[49]

On appeal, O’Sullivan questioned whether the evidence was legally sufficient to support his convictions.[50] The Court of Special Appeals affirmed his conviction, holding that the case was not an oath-against-oath situation and did not invoke the two-witness rule. The Court’s rationale was that a reasonable factfinder could have reached the same conclusion based solely on the body camera footage.[51] Moreover, the Court of Special Appeals noted that it would have affirmed the convictions even if it had applied the two-witness rule, as the body camera footage corroborated Smith’s testimony such that the evidence was “legally sufficient to foreclose any reasonable hypothesis other than O’Sullivan’s guilt.”[52]

O’Sullivan petitioned for certiorari, arguing that the Court of Special Appeals should have applied the two-witness rule.[53] O’Sullivan reasoned that the State relied on Smith’s testimony as direct evidence of falsity, indicating an oath-against-oath case.[54] The State filed a cross-petition for certiorari, asking the Court of Appeals to abrogate the two-witness rule in favor of the standard burden of proof, which requires the State to prove guilt beyond a reasonable doubt.[55]

The Court of Appeals first addressed the State’s petition to abrogate the two-witness rule for perjury offenses.[56] Under stare decisis, a court may only overrule a decision if it is “clearly wrong and contrary to established principles” or if it has been “superseded by significant changes in the law or facts.”[57] The court rejected the State’s argument that it should overturn its precedent.[58] The court found no evidence that perjury occurs more frequently in Maryland than other states that have abrogated the rule.[59] Additionally, the court found that because perjury is a type of crime that offends the legal system, the two-witness rule restrains prosecutors from losing objectivity in charging adverse witnesses.[60] Finally, the court justified a unique burden of production for the falsity element of perjury because triers of fact are permitted to infer the element of willfulness when falsity is proven, making it easier for the State to prove each element.[61] Because the rule’s purpose of safeguarding against wrongful perjury prosecutions and convictions remains sound, it is not clearly erroneous.[62]

The court agreed that a standard of proof beyond a reasonable doubt for every element of the crime, as guaranteed in In re Winship,[63] appears at odds with the two-witness rule’s unique burden of production. However, the beyond a reasonable doubt standard had already been used in Maryland for nearly a century[64] when the court officially recognized the two-witness rule in Brown.[65] Therefore, there were no significant changes in law or fact to justify overturning its precedent.[66] Because neither of the exceptions that would allow an appellate court to overrule precedent were applicable, abandoning the rule would be inconsistent with stare decisis.[67] Accordingly, the court refused to abrogate the two-witness rule.[68]

The court also determined whether the evidence was sufficient to support O’Sullivan’s perjury conviction.[69] The court reiterated that the two-witness rule applies only if the State seeks to introduce witness testimony as direct evidence of falsity,[70] but the rule does not apply if the State seeks to prove falsity through only circumstantial evidence.[71] The court agreed with O’Sullivan that the two-witness rule applied to this case, because the State introduced Smith’s testimony as direct evidence of falsity but did not agree that a different standard of review for sufficiency of the evidence should apply.[72] The court emphasized that the burden of production under the two-witness rule should not be conflated with the State’s burden of persuasion to prove falsity beyond a reasonable doubt,[73] as had been done in prior cases.[74] The court concluded that the State had met both its burden of production under the two-witness rule and its burden of persuasion, affirming O’Sullivan’s conviction.[75]

In an opinion concurring in part and dissenting in part, Judge Raker, joined by Judge McDonald, agreed that the evidence was sufficient to sustain O’Sullivan’s conviction but would have abrogated the two-witness rule for perjury charges.[76] Judge Raker argued that it is illogical to maintain a unique burden of production for perjury as an exception to the universal beyond a reasonable doubt standard.[77] Judge Raker argues that courts should rule based on the credibility of the evidence as determined by the triers of fact[78] rather than based on the number of witnesses.[79]

IV. Analysis

A. The Court’s Holding Clarifies the Correct Application of the Two-Witness Rule.

By emphasizing that the two-witness rule creates a unique burden of production rather than a burden of persuasion,[80] the Court of Appeals distinguished the rule’s application from its holdings in Brown and McGagh, noting that such prior application had conflated the two distinct burdens.[81] Under the two witness rule, the State may meet its burden of production for falsity by direct and positive testimony from at least two witnesses, solely circumstantial evidence, or a combination of both.[82] With the Court’s ruling, circumstantial evidence introduced with direct witness testimony no longer needs to be equal in weight to that of a second witness.[83] Instead, once the State meets its burden of production in submitting the appropriate evidence, a court should review the totality of the evidence to determine whether “any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.”[84] Though the two-witness rule creates a heightened requirement for the amount of evidence the State must produce, the burden of persuasion, as for all other crimes, is to prove every element beyond a reasonable doubt.[85]

B. Despite the Court’s Clarification, the Two-Witness Requirement for Perjury Remains an Anomaly.

Though the two-witness rule may have been effective in ecclesiastical courts, preventing oath-against-oath situations when perjury was one of the few crimes in which defendants were permitted to testify,[86] defendants in the United States have the right to testify in their own defense regardless of the crime, which frequently results in oath-against-oath scenarios.[87] Additionally, the institutionalization of the American criminal justice system decreases the danger of retaliatory accusations that was prevalent among English private prosecutions.[88] Furthermore, today’s public conscience generally does not consider perjury as serious of a crime as felonies such as homicide or armed robbery.[89] The motivation for retaining a higher burden of production solely for perjury prosecutions has lost its relevance.[90]

In his study on quantitative measures of proof, John Wigmore noted that the common law rejected the quantitative system due to the widespread belief that credibility is not dependent on the number of witnesses.[91] The Supreme Court expressed similar sentiments in Weiler, where despite articulating the modern rationale for keeping the rule,[92] the Court explicitly stated, “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.”[93] By preserving the two-witness rule solely for common law perjury offenses,[94] the Court of Appeals diverts from the standard practice of deciding cases based on the credibility of the evidence.

V. Conclusion

The Court’s refusal to abrogate the two-witness rule contrasted with Judge Raker’s dissent urging its abandonment[95] demonstrates the conflicting opinions among jurists across the United States.[96] Though the Court of Appeals intends for the rule to protect innocent witnesses from unfounded perjury accusations and prevent decisions based solely on oath against oath,[97] this purpose is undermined by the universal standard of proving each element beyond a reasonable doubt, based on the credibility of the evidence as determined by triers of fact.[98] As a result, the Court’s holding maintains a heightened burden of production that prosecutors must meet to secure a conviction only for the misdemeanor of perjury. To ensure uniformity among criminal prosecutions in Maryland, the state legislature should act to statutorily abandon the rule.[99]

*Devyn King is a staff editor for Law Review and a second-year student at the University of Baltimore School of Law. She is currently the Vice President of the Students Supporting the Women’s Law Center chapter at UB and is a teaching assistant for Intro​duction to Lawyering Skills/Civil Procedure I. Devyn is also a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society and a proud graduate of the University of Pittsburgh. In 2022, Devyn worked as a summer associate for Gallagher Evelius and Jones LLP. After receiving her J.D., Devyn hopes to work as a transactional attorney in Baltimore City.

[1] O’Sullivan v. State, 265 A.3d 1015, 1021 (Md. 2021).

[2] Id. at 1020.

[3] Id.

[4] Id. at 1030.

[5] See discussion infra Part IV.

[6] O’Sullivan, 265 A.3d at 1021.

[7] John H. Wigmore, Required Numbers of Witnesses; A Brief History of the Numerical System in England, 15 Harv. L. Rev. 83, 83 (1901).

[8] Id. at 84.

[9] Id. at 107.

[10] Id. at 107–08.

[11] Id.

[12] Weiler v. United States, 323 U.S. 606, 608–09 (1945).

[13] Id. at 608.

[14] Id. at 611.

[15] Id. at 609.

[16] Id.

[17] Md. Code Ann., Crim. Law § 9-101 (West 2022).

[18] Brown v. State, 171 A.2d 456, 458 (Md. 1961).

[19] Id.

[20] Id.

[21] See Smith v. State, 443 A.2d 985, 993 (Md. Ct. Spec. App. 1982).

[22] See id. (“[T]he rule is now incongruous in our present system of jurisprudence”) (internal quotations omitted); Hourie v. State, 452 A.2d 440, 443–44 (Md. Ct. Spec. App. 1982), aff’d, 467 A.2d 1016 (Md. 1983).

[23] Smith, 443 A.2d at 994.

[24] Id.

[25] Id. at 995.

[26] Id. at 993.

[27] Hourie, 452 A.2d at 443–44.

[28] Id. at 449–50.

[29] Id. at 441.

[30] Id. at 454.

[31] Hourie v. State, 467 A.2d 1016, 1017 (Md. 1983).

[32] Id. at 1024.

[33] See id. at 1022–24.

[34] Smith v. State, 443 A.2d 985, 995 (Md. Ct. Spec. App. 1982).

[35] State v. McGagh, 244 A.3d 1117, 1135 (Md. 2021).

[36] Id. at 1136.

[37] Id. at 1136–37.

[38] Id.

[39] See Goins v. United States, 99 F.2d 147, 149–50 (4th Cir. 1938) (expressing in dicta doubt as to the necessity of requiring a different burden of proof for perjury than all other crimes); Cohen v. United States, 27 F.2d 713, 714 (2d Cir. 1928) (expressing in dicta that it is difficult to justify extending the two-witness rule).

[40] See State v. Storey, 182 N.W. 613, 615 (Minn. 1921).

[41] See Alaska Stat. Ann. § 11.56.220 (West 2022); Ariz. Rev. Stat. Ann. § 13-2707 (2022); N.D. Cent. Code Ann. § 12.1-11-01(2) (West 2022); Okla. Stat. Ann. tit. 21, § 498(a) (West 2022); 11 R.I. Gen. Laws Ann. § 11-33-1(e) (West 2022). See also State v. Sands, 467 A.2d 202, 214 (N.H. 1983).

[42] See Ala. Code § 13A-10-105 (2022); Ark. Code Ann. § 5-53-107 (West 2022); Cal. Penal Code § 118(b) (West 2022); Del. Code Ann. tit. 11, § 1234 (West 2022); Haw. Rev. Stat. § 710-1067 (2022); Ky. Rev. Stat. Ann. § 523.060 (West 2022); Mo. Rev. Stat. § 575.070 (2022); Mont. Code Ann. § 45-7-201(7) (2022); Neb. Rev. Stat. § 28- 915(7) (2022); N.J. Stat. Ann. § 2C:28-1(e) (West 2022); N.Y. Penal Law § 210.50 (McKinney 2022); Ohio Rev. Code Ann. § 2921.11(E) (West 2022); Or. Rev. Stat. § 162.115 (2022); 18 Pa. Cons. Stat. § 4902(f) (2022); Tex. Code Crim. Proc. Ann. art. 38.18(a) (West 2022); Utah Code Ann. § 76-8-505(1) (West 2022).

[43] Weiler v. United States, 323 U.S. 606, 608–09 (1945).

[44] In re Winship, 397 U.S. 358, 364 (1970).

[45] O’Sullivan v. State, 265 A.3d 1015, 1025 (Md. 2021).

[46] Id.

[47] Id. at 1028.

[48] Id. at 1026.

[49] Id. at 1028.

[50] Id. at 1028–29.

[51] Id. at 1029.

[52] Id. (quoting O’Sullivan v. State, No. 2275, 2020 WL 7419686, at *8 (Md. Ct. Spec. App. Dec. 18, 2020)).

[53] Id.

[54] Id. at 1035.

[55] Id. at 1029.

[56] Id. at 1030.

[57] Id. (quoting Wallace v. State, 158 A.3d 521, 535 (Md. 2017)).

[58] Id. at 1031.

[59] Id.

[60] Id. at 1032.

[61] Id. at 1032–33.

[62] Id. at 1031–33.

[63] Id. at 1034 (citing In re Winship, 397 U.S. 358, 364 (1970)).

[64] Id. (citing Norwood v. State, 45 Md. 68, 75 (1876)).

[65] Id.

[66] Id.

[67] Id. at 1034.

[68] Id. at 1030.

[69] Id. at 1034.

[70] Id.

[71] Id. at 1035.

[72] Id.

[73] Id.

[74] See discussion supra Section II.B.

[75] O’Sullivan, 256 A.3d at 1036.

[76] Id. at 1040 (Raker, J., dissenting).

[77] Id. at 1041 n.1 (Raker, J., dissenting).

[78] Id. (Raker, J., dissenting) (quoting Hourie v. State, 452 A.2d 440, 443–44 (Md. Ct. Spec. App. 1982), aff’d, 467 A.2d 1016 (Md. 1983)).

[79] Id. at 1042 (Raker, J., dissenting).

[80] Id. at 1035.

[81] Id.

[82] Id. at 1036.

[83] Id.

[84] Id. (quoting State v. McGagh, 244 A.3d 1117 (Md. 2021) (internal citation omitted)).

[85] Id. at 1035–36.

[86] Wigmore, supra note 6, at 107–08.

[87] Hourie v. State, 452 A.2d 440, 447–49 (Md. Ct. Spec. App. 1982), aff’d, 467 A.2d 1016 (Md. 1983).

[88] Id. at 451.

[89] Id. at 452.

[90] See id. at 447–49.

[91] O’Sullivan v. State, 256 A.3d 1015, 1041 n.3 (Md. 2021) (Raker, J., dissenting) (quoting Hourie, 452 A.2d at 446).

[92] Weiler v. United States, 323 U.S. 606, 609 (1945).

[93] Id. at 608.

[94] O’Sullivan, 256 A.3d at 1030.

[95] See discussion supra Part III.

[96] See discussion supra Section II.C.

[97] See discussion supra Part III.

[98] See discussion supra Section IV.B.

[99] O’Sullivan, 256 A.3d at 1041 (Raker, J., dissenting).

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