Judge must consider instructions, court says Jurors can be advised on how to evaluate eyewitness testimony

October 15, 1997|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

A divided state Court of Appeals ruled yesterday that a trial judge must at least consider instructing jurors on how to evaluate eyewitness testimony in a criminal trial.

The top court chided a now-retired Baltimore City judge for his blanket refusal to instruct the jury on eyewitness identification of defendants in the two cases it overturned.

Circuit Court Judge David Ross, reached at home last night, had not seen the ruling and would not comment.

"But I never give that instruction. It is regrettable it found its way into the pattern jury instructions," Ross was quoted in the opinion as telling lawyers in one of the cases.

But the majority said the requests "should have at least been given careful consideration and arbitrarily rejecting them as always inappropriate was an abuse of discretion."

The 5-2 ruling clarifies for the first time the use of the eyewitness instruction, which is part of a thick manual of explanations that a judge can give jurors to help them weigh factors in a case.

"It was never clear in Maryland whether you have to give that instruction or not," said Gary E. Bair, chief of the criminal appeals division of the attorney general's office.

The instruction, more often sought by the defense than prosecution, advises jurors to consider, among other things, whether the witness had enough time and lighting to observe the offender, and how credible the witness was.

In other states, some courts have said jurors always have to be advised on how to judge the reliability of eyewitness identification. Other states have gone the opposite way.

Maryland now joins the courts that say it is sometimes appropriate and sometimes not, but once requested must be carefully considered.

The decision means the return to the city for retrial of the cases of Mark D. Gunning Sr., convicted of a 1994 robbery with a deadly weapon and Gary L. Harris, convicted of a 1995 purse-snatching. Lawyers for the defendants could not be reached yesterday.

In a separate opinion, two judges said they agreed with reversing Gunning's conviction but would uphold Harris' conviction because the essence of the instruction was covered in other explanations to the jury.

Pub Date: 10/15/97

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