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When is evidence of flight or evidence of “consciousness of guilt” admissible? In State v. Middleton, the SC Supreme Court reversed a conviction for CSC third-degree (rape) in Charleston County.
At trial, the court permitted a detective to testify that Middleton’s reluctance to subject himself to interrogation was “evasive” and showed “consciousness of guilt,” without first proving there was a “nexus between the [conduct] and the offense charged.”
This issue – evidence of consciousness of guilt – often arises when there is evidence that a defendant actively fled from prosecution, and it is often not relevant and inadmissible because there is no connection between the defendant’s actions and the crime charged.
Below, we will review State v. Middleton, looking at:
Middleton was accused of CSC 3rd-degree – rape, but not forcible rape. CSC 3rd degree is charged when the state alleges someone had nonconsensual sex with another person who was incapable of consenting.
In this case, Middleton was accused of having nonconsensual sex with a coworker who was allegedly too intoxicated to consent. At trial, the prosecutor asked a detective “how many times did you schedule an interview with him?” in an obvious attempt to show that Middleton was evading the police.
After the court overruled an objection on grounds of relevance, the detective testified that Middleton rescheduled interviews multiple times for several weeks before he finally met with the detective for an interview. On cross-examination, the detective added that “Your client is the only one who was ducking and dodging me.”
The Supreme Court found that the objection was preserved, although defense counsel made only a general objection on grounds of relevance and did not object to later inadmissible testimony like the “ducking and dodging” comment.
Evidence of “consciousness of guilt” might be admissible in a criminal trial, but, first, the state must prove that there is a “nexus” between the conduct and the offense charged.
In other words, the conduct must be relevant under Rule 401, SCRE – did the conduct have “any tendency” to make Middleton’s consciousness of guilt more probable than it would be without the evidence?
In this case, the Supreme Court found that the state did not establish a nexus between the failed interview attempts and the offense charged because:
There were multiple possible reasons for Middleton to avoid the detective that have nothing to do with guilt or innocence, including:
Unless the prosecutor proves that there is some connection between the evidence of consciousness of guilt and the crime charged, it is irrelevant and inadmissible.
Any time the prosecution attempts to introduce evidence of “consciousness of guilt,” they must show why the evidence is relevant to the crimes charged – although this usually involves evidence of flight, there many possible scenarios including:
Middleton’s conviction has been reversed, but his case is not over. When you win your criminal appeal, the usual remedy is reversal of the conviction and remand to the trial court for a new trial – that is what happened in this case.
As the Supreme Court noted, the evidence against Middleton was not “overwhelming” – the case turned on the sole issue of whether the alleged victim was so intoxicated that she could not consent to sex, which is never a slam-dunk for the prosecution.
On remand, Middleton may be eligible to be released on bond, and his case will be retried by a new jury unless it is dismissed, or an agreement is reached.
If you have been charged with a crime in SC, if you have been convicted of a crime and need help filing your appeal, or if you won an appeal and need help retrying your case, call now at 843-353-3449 or email us online to speak with a Myrtle Beach criminal defense lawyer on the Axelrod team today.
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