Evidence – Dead man’s testimony is admissible in later trial

Where a man who previously gave trial testimony was now dead, his testimony was admissible under Federal Rule of Evidence 804(b)(1). It permits the introduction of testimony given as a witness at another hearing if a predecessor in interest had an opportunity and similar motive to develop the testimony by examination.

Background

After a Maryland court determined they were actually innocent of crimes for which the state incarcerated them for over two decades, brothers Kenneth McPherson and Eric Simmons sued the Baltimore Police Department and five detectives. The district court dismissed the claims against all but two defendants, Robert Patton and Frank Barlow.

During a hearing on their summary judgment motion, the district court raised an evidentiary issue about the admissibility of witness Marcus King’s state trial testimony. King, now deceased, allegedly participated in the murder conspiracy and gave a statement to Patton and Barlow implicating the brothers that he later recanted at their trial. The district court excluded the testimony and granted Patton and Barlow’s summary judgment motion.

Hearsay

“Federal Rule of Evidence 804(b)(1) permits the introduction of testimony given as a witness at another hearing if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” McPherson and Simmons must show that the motive that Patton and Barlow’s counsel would have had when questioning King in a civil action today is similar to the one State’s Attorney Sharon Holback had when she questioned King during the criminal trial in 1995.

At first glance, the dissimilarities leap off the page. Holback, initially at least, called King to identify McPherson and Simmons as participants in a murder. Patton and Barlow’s counsel, by contrast, would question King to discredit claims that the detectives fabricated evidence in investigating that murder. But King’s recantation makes all the difference. When that happened, Holback attempted to rehabilitate King—or at least bolster the credibility of his recorded statement—and, in doing so, attempted to defend the interrogation that produced the statement.

Holback was concerned with proving that the detectives acted lawfully because she ensured the jury heard, at bottom, that Patton and Barlow Mirandized King before questioning him and allowed his mother in the room with him. She also made sure the jury knew that the detectives had King acknowledge his rights in writing before he gave any statement.

Holback also asked Patton on direct to explain what purpose his interrogative techniques—like handcuffing and shackling King, yelling at him and banging on the desk—served in questioning King. In short, the common threads from King’s examination to Patton’s examination to Holback’s closing were to convey both Patton’s and his investigation’s integrity. The district court thus abused its discretion in excluding King’s testimony under Rule 804(b)(1).

Fabrication claim

McPherson and Simmons must show that Patton and Barlow deliberately, or with reckless disregard for the truth, manufactured false testimony from King in his recorded statement.

In the light most favorable to McPherson and Simmons, King’s testimony supports that (1) King first denied his and the brothers’ involvement in the unrecorded portion of the interrogation; (2) he changed his story in the recorded portion after Patton berated him and made him “say stuff out of [his] mouth” about his and the brothers’ involvement and (3) this new version of events was a “lie.” That is enough to raise a triable issue. The circumstantial evidence that McPherson and Simmons cite confirms this conclusion.

Suppression claim

“[T]o make out a claim that an officer violated one’s constitutional rights by suppressing exculpatory evidence, [a plaintiff] must prove that (1) the evidence at issue was favorable to him; (2) the officers suppressed the evidence in bad faith; and (3) prejudice ensued.”

Even in the light most favorable to McPherson and Simmons, there’s not “a reasonable probability” that the suppressed evidence would have led the jury to acquit the brothers of conspiracy to murder. And because the undisclosed witness notes didn’t include “especially pertinent exculpatory evidence,” McPherson and Simmons haven’t met the bad faith element (assuming they properly raised it in the first place).

Vacated in part, affirmed in part and remanded with instructions.

McPherson v. Patton, Case No. 24-2143, May 21, 2026. 4th Cir. (Diaz), from DMD at Baltimore (Gallagher). Gayle Horn for Appellants. Michael Patrick Redmond for Appellees. VLW 026-2-183. 30 pp.

Full-Text Opinion
VLW 026-2-183