11.4 Presenting the Evidence

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

11.4 PRESENTING THE EVIDENCE

11.401 Testimony of the Accused. An accused may elect to testify on his or her own behalf. If sworn and examined, he or she is deemed to have waived the privilege of not giving evidence against himself or herself and will be subject to cross-examination as would any other witness. ²⁰⁴ However, when a defendant testifies in support of a motion to suppress, that testimony may not thereafter be admitted against the defendant at trial on the issue of guilt unless the defendant makes no objection. ²⁰⁵ It can be used for impeachment. ²⁰⁶ The defendant's failure to testify creates no presumption against him or her, nor may it be the subject of any comment before the court or jury by the prosecuting attorney. ²⁰⁷ But such comment may be proper under the invited error doctrine when the area has been opened to fair comment by argument of the defense counsel. ²⁰⁸

If an accused makes a statement upon legal examination in another legal matter in which he or she was not testifying on his or her own behalf, this statement may not be used against him or her in a subsequent criminal trial, except in a prosecution for perjury or action on a penal statute. ²⁰⁹ The question of whether the accused was testifying on his or her own behalf is more complicated than simply identifying the parties to the prior case and can yield some surprising results. ²¹⁰

When a defendant voluntarily takes the stand to testify in his or her own defense during the criminal proceeding, the defendant may be asked for impeachment purposes only about the existence and number of prior convictions for any type of felony or for misdemeanors involving moral turpitude; the name of the crimes and details about them are not admissible. ²¹¹ However, in Harmon v. Commonwealth, the Virginia Supreme Court held that a

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defendant who voluntarily takes the stand and admits a prior homicide conviction is subject to cross-examination on the degree of that homicide. ²¹² This case suggests that when a defendant, on direct examination, admits the commission of a specific felony, he or she may be cross-examined on the relevant details of that felony.

It is worth mentioning that whether or not the defendant testifies, prior bad acts may be admissible if their probative value outweighs the danger of unfair prejudice. ²¹³ An additional exception to the rule governing the admissibility of evidence of prior bad acts states that, in felony sexual offense cases involving a child victim, evidence of the defendant's prior sex offense convictions may be admissible. ²¹⁴ That rule is still subject to the probative/prejudicial test, but as a practical matter, it increases the likelihood the court will admit the evidence of prior offenses in child sex cases.

Of equal concern in deciding whether or not defendant should testify is that the defendant's testimony may inadvertently "open the door" to damaging inquiries from the prosecutor on cross-examination. Matters raised by the defendant on direct examination are subject to cross-examination relevant to that testimony. ²¹⁵

11.402 Witnesses.

A. Statutory Requirements. A witness in a criminal case must attend the trial and may be proceeded against for failing to do so, even where there has not been any previous payment or tender to him or her of payment for attendance, mileage, or tolls. ²¹⁶

B. Convicted Felons. A person convicted of a felony is competent to testify, but the fact of conviction may be shown in evidence to impeach his or her credibility. ²¹⁷ Counsel may also inquire into prior convictions for misdemeanors involving moral turpitude. ²¹⁸

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But it is improper for the prosecutor to attempt to use impeachment of a defense witness as a means to dredge up the inadmissible prior criminal history of the defendant, such as by connecting the witness's prior criminal activity to the defendant. ²¹⁹ A witness other than the defendant may be questioned about the name, number, and nature, but not the details, of prior felony convictions and crimes of moral turpitude and may also be questioned concerning promises of favorable treatment by the prosecution. ²²⁰ The credibility of a witness may be questioned by the existence of a deal with the prosecution, and false evidence presented to the jury on that issue may be grounds for a new trial. In a Fourth Circuit case, the defendant's accomplice, who implicated the defendant by his testimony, falsely denied the existence of a promise of leniency offered by the government in exchange for his cooperation. The court held that since his denial, when coupled with the prosecutor's emphasis upon altruistic motivation, constituted false evidence that had a reasonable likelihood of influencing the jury verdict, the conviction had to be reversed. ²²¹ The Fourth Circuit Court of Appeals has held that a witness' alleged conduct underlying an SEC complaint and the government's pursuit of a fraud investigation against that witness, even though not a conviction, is permissible impeachment evidence relating to that witness's bias and motivation to testify on behalf of the government. ²²²

C. Judicial Officials. Judges are not competent to testify in civil or criminal proceedings about any matters that have come before them in the course of their official duties. Except in perjury cases or matters involving nonpayment of certain fines or costs, clerks, magistrates, or other persons having the power to issue warrants are also incompetent to testify in civil or criminal proceedings as to matters that have come before them in the course of their official duties. ²²³ Thus, a magistrate who issued a search warrant could not be called as a witness at a hearing on a motion to suppress evidence obtained by execution of the warrant. It is not permissible for a judge to

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testify as a fact witness in a contempt hearing because the institution of the court, and not the judge personally, was the actual victim under section 19.2-271 of the Virginia Code. ²²⁴ However, if a finding of contempt is appealed, a certificate of the summary contempt conviction and the particular circumstances of the offense should be transmitted by the district court sentencing judge to the circuit court, and the circuit court judge may hear the appeal of the case upon the certificate and any legal testimony adduced on either side. ²²⁵

D. Spouses and Children. The Virginia Code provides that:

In criminal cases husband and wife . . . may be compelled to testify in behalf of each other, but neither shall be compelled to be called as a witness against the other, except (i) in the case of a prosecution for an offense committed by one against the other, against a minor child of either, or against the property of either, (ii) in any case where either is charged with forgery of the name of the other . . . or (iii) in any proceeding relating to . . . criminal sexual assault . . . or abuse of children. ²²⁶

Unless one of the enumerated types of cases is involved, the statute prohibits the witness spouse from testifying against the defendant over the defendant's objection. Under some circumstances, when the communication was made confidentially during the marriage, the defendant spouse may be able to prevent the witness spouse from testifying, even if the witness spouse is willing to do so. ²²⁷

The privilege is determined at the time of trial and depends on the couple's being validly married at the time of the confidential disclosure. The privilege continues regardless of whether the defendant and the witness are subsequently divorced. ²²⁸ If a marriage is void, the parties have no privilege. ²²⁹ The spouse is competent to testify as to the status of the marriage. ²³⁰

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An estranged spouse still can assert the privilege even though the defendant had intended to kill his wife when he killed her companion. This was not "a criminal offense committed by one [spouse] against the other" since the indictment charged only murder of the companion and use of a firearm in the commission of a felony. ²³¹ On the other hand, when a spouse is charged both with an offense against the other spouse and with a violation of a statute regulating conduct that is implicated in the offense against the spouse (such as possession of a firearm by a convicted felon), the victim spouse can testify against the offending spouse on both charges. ²³²

The privilege applies only to adversarial proceedings, not to other stages of the criminal investigation. ²³³ A spouse can waive the privilege by testifying at the preliminary hearing and then successfully invoke the privilege to refuse to testify at trial. However, in those circumstances, the spouse becomes "unavailable" for hearsay purposes, and the preliminary hearing testimony can be used at the trial. ²³⁴ Unlike hearing testimony, statements made during a police interview may not be usable at trial where the spouse later invokes the privilege because the statements were not subject to cross-examination and their use would violate the Confrontation Clause. ²³⁵

There are two arms to the spousal privilege. First, there is the privilege that belongs to the witness spouse to refuse to testify against the defendant spouse. That privilege is not limited to confidential communications but applies to any communication from the defendant spouse to the witness spouse regardless of whether it was made in confidence. Second, there is the privilege that belongs to the defendant spouse to refuse to allow the witness spouse to testify. The only matters covered by the second arm of the privilege are confidential communications made within the marital relationship and not intended to be disclosed to third parties. ²³⁶ Neither arm of the privilege prohibits the introduction of marital communications that are in the possession of a third party, such as a letter written by the defendant to his or

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her spouse that was turned over to the police by the spouse and authenticated...