Vermont Supreme Court Finds “Consciousness of Guilt” Evidence Prejudicial

In State v. Scales, 2017 VT 6 (Jan. 20, 2017), the Vermont Supreme Court reversed defendant’s conviction of felony lewd and lascivious conduct with a child because the trial court’s admission of “consciousness of guilt” evidence was harmful error.

Issue: Charges were filed against Defendant alleging he committed lewd and lascivious conduct with a child more than six years prior. A trooper came to arrest defendant at his Pennsylvania apartment, asking him if he was Lamar Scales. Defendant identified himself as Shahid Nur. Then a woman present in the apartment told defendant to tell the officer who he was. Defendant then acknowledged he was Lamar Scales, adding that he had changed his name to Shahid Nur. This exchange was admitted into evidence as “consciousness of guilt” evidence. Defendant was convicted. He appealed.

Holding: The Supreme Court held that the trial court erred in admitting this “consciousness of guilt” evidence. Defendant’s conduct did not demonstrate defendant was attempting to elude the police. Charge was based on conduct six years prior and defendant had had multiple arrests over that time; inference that any consciousness of guilt was consciousness of guilt of the crime charged was inappropriate. The error was not harmless, as the only other evidence against defendant was the sometimes-inconsistent testimony of a then-twelve-year-old girl and the trial court had failed to give a limiting jury instruction.