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ON RULES OF PRACTICE AND PROCEDURE

Minutes of a meeting of the Rules Committee virtually held

via Zoom for Government on March 12, 2021.

Members present:

Hon. Alan M. Wilner, Chair

H. Kenneth Armstrong, Esq.

Julia Doyle Bernhardt, Esq.

Hon. Pamila J. Brown

Stan Derwin Brown, Esq.

Hon. Yvette M. Bryant

Sen. Robert G. Cassilly

Hon. John P. Davey

Mary Anne Day, Esq.

Del. Kathleen Dumais

Alvin I. Frederick, Esq.

Pamela Q. Harris, State Court

Administrator

Irwin R. Kramer, Esq.

Victor H. Laws, III, Esq.

Dawne D. Lindsey, Clerk

Bruce L. Marcus, Esq.

Donna Ellen McBride, Esq.

Stephen S. McCloskey, Esq.

Hon. Douglas R. M. Nazarian

Hon. Paula A. Price

Scott D. Shellenberger, Esq.

Gregory K. Wells, Esq.

Hon. Dorothy J. Wilson

Thurman W. Zollicoffer, Esq.

In attendance:

Sandra F. Haines, Esq., Reporter

Colby L. Schmidt, Esq., Deputy Reporter

Heather Cobun, Esq., Assistant Reporter

Meredith A. Drummond, Esq., Assistant Reporter

Del. Erek Barron

Hon. Keith Baynes

Michael Baxter, Esq.

Susan Braniecki

Hon. Audrey J.S. Carrion

John P. Cox, Esq.

Stanford Fraser, Esq.

Mary Katherine Fowler, Esq.

Lara Gingerich

John Henderson, Esq.

Greg Hilton, Esq.

Gloria Lewis

Lisa Mannisi, Esq.

Hon. John P. Morrissey, Chief Judge, District Court of Maryland

Hon. Danielle Mosley

Doyle Niemann, Esq.

Kelly O’Connor, Esq.

Brian Saccenti, Esq.

Michael Schatzow, Esq.

Hon. Dennis Sweeney

Gillian Tonkin, Esq.

Rebecca Wells, Esq.

Jer Welter, Esq.

Carrie Williams, Esq.

Brian Zavin, Esq.

The Chair convened the meeting.

The Chair discussed the

results of the open meeting on the 206th Report.

He explained

that the proposed changes to Rule 14-305 were remanded for

further consideration.

The Chair noted that a comment was received from the Office

of the Attorney General regarding Agenda Item 1.

See Appendix

345.

The comment referenced the Chair’s work in regard to Rule 4The Chair stated that the effort to develop proposed

changes to Rule 4-345 involved many people.

The Chair explained that the Chair of the appropriate

Subcommittee will present each agenda item.

The Committee will

hear from individuals who have asked to speak.

The item will

then be open for discussion by Committee members.

He added that

copies of all written documents received as of 4:30 p.m.

yesterday were distributed to Committee members and will be made

available to any guests.

The Chair said that minutes from the Committee meetings of

February 7, 2020, June 18, 2020, September 10, 2020, October 16,

2020, November 20, 2020, January 8, 2021 and February 12, 2021

were distributed to the Committee for review.

to approve the subject minutes.

Judge Brown moved

The motion was seconded.

There

being no motion to further amend or reject the proposed minutes,

the minutes were approved.

The Reporter said that the Rules Committee’s Executive Aide

is no longer working for the Committee.

position was posted for applications.

She announced that the

The Reporter added that

the meeting was being recorded and that speaking will be treated

as consent to being recorded.

Agenda Item 1. Consideration of proposed amendments to Rule 4345 (Sentencing – Revisory Power of Court)

_______________________________________________________________

Mr. Marcus, Chair of the Criminal Rules Subcommittee,

presented two versions of proposed amendments to Rule 4-345

(Sentencing – Revisory Power of Court) for consideration.

SUBCOMMITTEE VERSION

MARYLAND RULES OF PROCEDURE

TITLE 4 – CRIMINAL CAUSES

CHAPTER 300 – TRIAL AND SENTENCING

AMEND Rule 4-345 by adding an exception to the

five-year limitation on the court’s revisory power set

forth in section (e); by transferring the language of

a Committee note following section (e) to new

subsection (f)(1) and a cross reference following

subsection (f)(1); by adding new subsection (f)(2),

permitting a circuit court, under certain

circumstances to modify a sentence by reason of length

of confinement; by adding new subsection (g)(1),

providing for service of a motion or petition filed

under the Rule, permitting the State’s Attorney to

file an answer within 30 days after service, and

requiring the clerk to forward a copy of the petition

by a pro se defendant to the local Office of the

Public Defender; by adding new subsection (g)(2),

permitting the court to request a certain report; by

re-lettering current subsections (e)(2) and (e)(3) as

subsections (g)(3) and (g)(4), respectively, and

adding clarifying language to the subsections; by

adding new subsection (h)(1) permitting the court to

dismiss a petition filed under subsection (f)(2)

without a hearing under certain circumstances; by

transferring the provisions of section (f) to

subsections (h)(2) and (h)(3), with certain

modifications; by deleting the phrase “in open court”

from subsection (h)(2); by adding to subsection (h)(2)

considerations pertaining to a determination of

whether relief under subsection (f)(2) should be

granted; by deleting the word “ordinarily” from

subsection (h)(3); and by making stylistic changes, as

follows:

Rule 4-345.

(a)

SENTENCING – REVISORY POWER OF COURT

Illegal Sentence

The court may correct an illegal sentence at

any time.

(b)

Fraud, Mistake, or Irregularity

The court has revisory power over a sentence in

case of fraud, mistake, or irregularity.

(c)

Correction of Mistake in Announcement

The court may correct an evident mistake in the

announcement of a sentence if the correction is made

on the record before the defendant leaves the

courtroom following the sentencing proceeding.

Cross reference: See State v. Brown, 464 Md. 237

(2019), concerning an evident mistake in the

announcement of a sentence.

(d)

Desertion and Non-Support Cases

At any time before expiration of the sentence

in a case involving desertion and non-support of

spouse, children, or destitute parents, the court may

modify, reduce, or vacate the sentence or place the

defendant on probation under the terms and conditions

the court imposes.

(e)

Modification Upon Motion - Generally

(1) Generally

Upon a motion filed within 90 days after

imposition of a sentence (A)(1) in the District Court,

if an appeal has not been perfected or has been

dismissed, and (B)(2) in a circuit court, whether or

not an appeal has been filed, the court has revisory

power over the sentence except that it may not

increase the sentence and, unless the court finds the

special circumstances set forth in subsection (f)(1)

or (f)(2) of the Rule, it may not revise the sentence

after the expiration of five years from the date the

sentence originally was imposed on the defendant. and

it may not increase the sentence.

Cross reference: Rule 7-112 (b).

Committee note: The court at any time may commit a

defendant who is found to have a drug or alcohol

dependency to a treatment program in the Maryland

Department of Health if the defendant voluntarily

agrees to participate in the treatment, even if the

defendant did not timely file a motion for

modification or timely filed a motion for modification

that was denied. See Code, Health—General Article, §

8-507.

(f)

Modification in Special Circumstances

(1) Commitment for Drug or Alcohol Dependency

Treatment

The court at any time may commit a defendant

who is found to have a drug or alcohol dependency to a

treatment program approved by the Maryland Department

of Health if the defendant voluntarily agrees to

participate in the treatment, even if the defendant

did not timely file a motion for modification or

timely filed a motion for modification that was

denied.

Cross reference:

§ 8-507.

See Code, Health - General Article,

(2) Modification by Reason of Length of

Confinement

(A) Subsection (f)(2) of this Rule applies to a

defendant who was sentenced to an aggregate

unsuspended term of imprisonment for 25 years or more

and has served two-thirds of that sentence. For

purposes of this subsection, (i) a life sentence shall

be regarded as a sentence for 60 years and (ii) any

sentence of more than 60 years shall be regarded as a

sentence for 60 years. A defendant who meets the

criteria of this paragraph is an eligible petitioner

under subsection (f)(2).

(B) Upon a petition filed by an eligible

petitioner and compliance with the requirements of

sections (g) and (h) of this Rule, the court may

modify, reduce, or vacate the sentence or place the

defendant on probation under the terms and conditions

the court imposes. Failure to have filed a timely

motion under section (e) of this Rule, or a previous

grant or denial of a motion under that section, shall

not bar relief under this subsection.

(g)

Procedure

(1) Service; Answer; Forwarding by Clerk

(A) A motion or petition filed under subsection

(e)(2) or (f)(2) of this Rule shall be filed in the

circuit court that entered the sentence sought to be

modified and served on the State’s Attorney for that

county.

(B) The State’s Attorney may file an answer

within 30 days after service of the motion or

petition.

subsection (f)(2) of this Rule is self-represented,

the clerk shall promptly forward a copy of the

petition to the local Office of the Public Defender in

the jurisdiction where the petition is filed.

(2) Request for Report

Prior to consideration of a petition filed

under subsection (f)(2) of this Rule, the court may

request a report from the Division of Correction,

Division of Parole and Probation, or Patuxent

Institution, as relevant, with respect to the

petitioner’s conduct while incarcerated.

(2)(3) Notice to Victims

Whether or not the State’s Attorney files an

answer, The the State’s Attorney shall give notice to

each victim and victim’s representative who has filed

a Crime Victim Notification Request form pursuant to

Code, Criminal Procedure Article, § 11-104 or who has

submitted a written request to the State’s Attorney to

be notified of subsequent proceedings as provided

under Code, Criminal Procedure Article, § 11-503 that

states (A) that a motion or petition to modify,

vacate, or reduce a sentence has been filed; (B) that

the motion or petition has been denied without a

hearing or the date, time, and location of the

hearing; and (C) if a hearing is to be held, that each

victim or victim’s representative may attend and

testify.

(3)(4) Inquiry by Court

Except as provided in subsection (h)(1),

Before before considering a motion or petition under

this Rule, the court shall inquire if a victim or

victim’s representative is present. If one is

present, the court shall allow the victim or victim’s

representative to be heard as allowed by law. If a

victim or victim’s representative is not present and

the case is one in which there was a victim, the court

shall inquire of the State’s Attorney on the record

regarding any justification for the victim or victim’s

representative not being present, as set forth in

Code, Criminal Procedure Article, § 11-403 (e). If no

justification is asserted or the court is not

satisfied by an asserted justification, the court may

postpone the hearing.

(f)(h)

Open Court Hearing

(1) The court may dismiss a petition filed under

subsection (f)(2) without a hearing if the court finds

in a written order filed in the record that the

petitioner does not qualify as an eligible petitioner

or if a motion or petition under this Rule was

previously denied after a hearing.

(2) The court may modify, reduce, correct, or

vacate a sentence only on the record in open court,

after hearing from the defendant, the State, and from

each victim or victim’s representative who requests an

opportunity to be heard. In determining whether to

grant relief under subsection (f)(2) of this Rule, the

court shall consider (A) the petitioner’s adjustment

to incarceration, (B) the petitioner’s plans for

housing, education, and employment if released, and

reasonable likelihood that the petitioner will be a

danger to a victim, another person, or the community.

(3) The defendant may waive the right to be

present at the hearing. No hearing shall be held on a

motion or petition to modify or reduce the sentence

until the court determines that the notice

requirements in subsection (c)(g)(2) of this Rule have

been satisfied. If the court grants the motion or

petition, the court ordinarily shall prepare and file

or dictate into the record a statement setting forth

the reasons on which the ruling is based.

Cross reference: See Code, Criminal Law Article, § 5609.1 regarding an application to modify a mandatory

minimum sentence imposed for certain drug offenses

prior to October 1, 2017, and for procedures relating

thereto.

Source: This Rule is derived in part from former Rule

774 and M.D.R. 774, and is in part new.

The Subcommittee version of Rule 4-345 was accompanied

by the following Reporter’s note.

Proposed amendments to Rule 4-345 would allow an

incarcerated person serving a lengthy sentence to ask

the trial court to exercise its revisory power once a

significant portion of the sentence has been served.

The trial court’s revisory power over its sentences is

separate and distinct from the executive branch’s

parole and pardon powers (see State v. Schlick, 465

Md. 566, n. 4 (2019)).

The Court of Appeals amended Rule 4-345 in 2004

to restrict the time to revise a sentence to five

years from the date the sentence was originally

imposed. The Criminal Rules Subcommittee was advised

that research has shown that individuals who committed

serious crimes and served significant portions of long

sentences can be safely released, either due to

maturation while incarcerated if he or she was a young

offender or by “aging out” of criminality as an older

inmate.

Proposed amendments apply section (e) to

modification upon motion in general and maintain the

current text of subsection (e)(1) with an exception

for special circumstances under subsection (f)(1) and

(f)(2). A Committee note following section (e) is

deleted and moved into the text of new subsection

(f)(1).

Proposed new subsection (f)(1) provides for

commitment to an approved treatment program if a

defendant is found to have a drug or alcohol

dependency. The text of the subsection and a cross

reference are taken from current section (e).

Proposed new subsection (f)(2)(A) permits an

individual to petition for modification of an

aggregate unsuspended sentence of 25 years or longer.

The petitioner must have served two-thirds of the

sentence. A life sentence and any sentence greater

than 60 years are regarded as 60-year sentences for

the sole purpose of calculation under this subsection.

Proposed new subsection (f)(2)(B) authorizes the

court to modify, reduce, or vacate the sentence or

place the defendant on probation, and states that

failure to file a timely petition does not bar relief.

Proposed new section (g) outlines the procedure

for petitions filed pursuant to section (e) and

subsection (f)(2). The petition is filed in the

circuit court where the sentence was entered and

served on the State’s Attorney, who may file an

answer. A self-represented petitioner’s filing is

forwarded to the local Office of the Public Defender.

Subsection (g)(3) maintains the current Rule’s

provisions for notification to victims. The language

is amended to clarify that the State’s Attorney must

notify each victim whether or not the State files an

answer to the motion or petition.

Proposed amendments to subsection (g)(4) create

an exception to the requirement to inquire about the

presence of a victim or victim’s representative if the

court opts to dismiss a petition pursuant to new

subsection (h)(1). Proposed new subsection (h)(1)

allows the court to dismiss a petition filed under

subsection (f)(2) by written order without a hearing

if the court finds that the petitioner does not

qualify for relief or a motion or petition was

previously denied after a hearing. Proposed

amendments to subsection (h)(2) contain factors the

court must consider in determining whether to grant

relief under subsection (f)(2).

ALTERNATE VERSION

MARYLAND RULES OF PROCEDURE

TITLE 4 – CRIMINAL CAUSES

CHAPTER 300 – TRIAL AND SENTENCING

AMEND Rule 4-345 by adding an exception to the

five-year limitation on the court’s revisory power set

forth in section (e); by transferring the language of

a Committee note following section (e) to new

subsection (f)(1) and a cross reference following

subsection (f)(1); by adding a Committee note after

subsection (f)(1); by adding new subsection (f)(2),

permitting a circuit court, under certain

circumstances to modify a sentence by reason of length

of confinement or age; by adding new subsection

(g)(1), providing for where a motion or petition shall

be filed; by adding new subsection (g)(2) providing

for service of a motion or petition filed under the

Rule and permitting the State’s Attorney to file an

answer within 30 days after service; by re-lettering

current subsections (e)(2) and (e)(3) as subsections

(g)(3) and (g)(4), respectively; by adding new

subsection (g)(5) requiring a petition by a pro se

petitioner to be forwarded to the local Office of the

Public Defender; by adding new subsection (g)(6),

permitting the court to request certain reports from

the Department of Public Safety and Correctional

Services, and adding clarifying language to the

subsections; by adding new subsection (h)(1)

permitting the court to dismiss a petition filed under

subsection (f)(2) without a hearing under certain

circumstances; by transferring the provisions of

section (f) to subsections (h)(2) and (h)(3), with

certain modifications; by deleting the phrase “in open

court” from subsection (h)(2); by deleting the word

“ordinarily” from subsection (h)(3); by adding new

subsection (h)(4) listing factors for the court to

consider in determining whether to grant relief; and

by making stylistic changes, as follows:

Rule 4-345.

(a)

SENTENCING – REVISORY POWER OF COURT

Illegal Sentence

The court may correct an illegal sentence at

any time.

(b)

Fraud, Mistake, or Irregularity

The court has revisory power over a sentence in

case of fraud, mistake, or irregularity.

(c)

Correction of Mistake in Announcement

The court may correct an evident mistake in the

announcement of a sentence if the correction is made

on the record before the defendant leaves the

courtroom following the sentencing proceeding.

Cross reference: See State v. Brown, 464 Md. 237

(2019), concerning an evident mistake in the

announcement of a sentence.

(d)

Desertion and Non-Support Cases

At any time before expiration of the sentence

in a case involving desertion and non-support of

spouse, children, or destitute parents, the court may

modify, reduce, or vacate the sentence or place the

defendant on probation under the terms and conditions

the court imposes.

(e)

Modification Upon Motion - Generally

(1) Generally

Upon a motion filed within 90 days after

imposition of a sentence (A)(1) in the District Court,

if an appeal has not been perfected or has been

dismissed, and (B)(2) in a circuit court, whether or

not an appeal has been filed, the court has revisory

power over the sentence except that it may not

increase the sentence and, unless the court finds the

special circumstances set forth in subsection (f)(1)

or (f)(2) of the Rule, it may not revise the sentence

after the expiration of five years from the date the

sentence originally was imposed on the defendant. and

it may not increase the sentence.

Cross reference: Rule 7-112 (b).

Committee note: The court at any time may commit a

defendant who is found to have a drug or alcohol

dependency to a treatment program in the Maryland

Department of Health if the defendant voluntarily

agrees to participate in the treatment, even if the

defendant did not timely file a motion for

modification or timely filed a motion for modification

that was denied.

8-507.

(f)

See Code, Health—General Article, §

Modification in Special Circumstances

(1) Commitment for Drug or Alcohol Dependency

Treatment

The court at any time may commit a defendant

who is found to have a drug or alcohol dependency to a

treatment program in the Maryland Department of Health

if the defendant voluntarily agrees to participate in

the treatment, even if the defendant did not timely

file a motion for modification or timely filed a

motion for modification that was denied.

Cross reference:

§ 8-507.

See Code, Health - General Article,

Committee note: In order to implement a commitment

under subsection (f)(1), the court must suspend all of

the sentence except the time served and place the

defendant on supervised probation, a condition of

which is the successful completion of the commitment.

(2) Modification by Reason of Length of

Confinement and Age

(A) Subsection (f)(2) of this Rule applies to a

defendant who was sentenced to an aggregate

unsuspended term of imprisonment of more than 15 years

and (i) committed the last offense for which that

sentence or any part of it was imposed before reaching

the age of 25 and has served the greater of 15 years

or sixty percent of that sentence, or (ii) has served

at least 15 years of that sentence and has reached 65

years of age. For purposes of this subsection only, a

life sentence or an aggregate unsuspended sentence of

more than 50 years shall be regarded as a sentence for

50 years. A defendant who meets the criteria of this

paragraph is an eligible petitioner under subsection

(f)(2).

(B) Upon a petition filed by an eligible

petitioner and compliance with the requirements of

sections (g) and (h) of this Rule, the court may

modify, reduce, or vacate the sentence or place the

defendant on probation under the terms and conditions

the court imposes. Failure to have filed a timely

motion under section (e) of this Rule shall not bar

relief under this subsection.

(g)

Procedure

(1) Where Filed

A motion or petition filed under this Rule

shall be filed in the circuit court that entered the

sentence sought to be modified. If an aggregate

sentence consists of two or more sentences imposed by

different courts and the petitioner seeks relief from

the aggregate sentence, separate petitions must be

filed with each court. A court has revisory power

under this Rule only with respect to a sentence that

it imposed.

(2) Service; Answer

The petition shall be and served on the

State’s Attorney for that the county. The State’s

Attorney may file an answer within 30 days after

service of the motion or petition.

(3) Notice to Victims

Whether or not the State’s Attorney files an

answer, The the State’s Attorney shall give notice to

each victim and victim’s representative who has filed

a Crime Victim Notification Request form pursuant to

Code, Criminal Procedure Article, § 11-104 or who has

submitted a written request to the State’s Attorney to

be notified of subsequent proceedings as provided

under Code, Criminal Procedure Article, § 11-503 that

states (A) that a motion or petition to modify,

vacate, or reduce a sentence has been filed; (B) that

the motion or petition has been denied without a

hearing or the date, time, and location of the

hearing; and (C) if a hearing is to be held, that each

victim or victim’s representative may attend and

testify.

(4) Inquiry by Court

Except as provided in subsection (h)(1),

Before before considering a motion or petition under

this Rule, the court shall inquire if a victim or

victim’s representative is present. If one is

present, the court shall allow the victim or victim’s

representative to be heard as allowed by law. If a

victim or victim’s representative is not present and

the case is one in which there was a victim, the court

shall inquire of the State’s Attorney on the record

regarding any justification for the victim or victim’s

representative not being present, as set forth in

Code, Criminal Procedure Article, § 11-403 (e). If no

justification is asserted or the court is not

satisfied by an asserted justification, the court may

postpone the hearing.

(5) Notice to Public Defender

If a petitioner seeking relief under

subsection (f)(2) of this Rule is self-represented,

the clerk shall promptly forward a copy of the

petition to the county or district Office of the

Public Defender.

(6) Request for Report

Prior to consideration of a petition filed

under subsection (f)(2) of this Rule, the court may

request a report from the Department of Public Safety

and Correctional Services Division of Correction with

respect to the petitioner’s conduct and adjustment

while incarcerated.

(f)(h)

Open Court Hearing

(1) The court may dismiss a petition filed under

subsection (f)(2) without a hearing if the court finds

in a written order filed in the record that the

petitioner does not qualify as an eligible petitioner

or if, during the preceding three years, a motion or

petition under this Rule was denied after a hearing.

(2) The court may modify, reduce, correct, or

vacate a sentence only on the record in open court,

after hearing from the defendant, the State, and from

each victim or victim’s representative who requests an

opportunity to be heard.

(3) The defendant may waive the right to be

present at the hearing. No hearing shall be held on a

motion or petition to modify or reduce the sentence

until the court determines that the notice

requirements in subsection (c)(g)(2) of this Rule have

been satisfied. If the court grants the motion or

petition, the court ordinarily shall prepare and file

or dictate into the record a statement setting forth

the reasons on which the ruling is based.

(4) In determining whether to grant relief under

subsection (f)(2) of this Rule, the court shall

consider (A) whether the petitioner has substantially

complied with the rules of the institution in which

the petitioner was confined; (B) the petitioner’s

plans for housing, education, and employment if

released; (C) whether, if the petitioner is released,

there is a reasonable likelihood that the petitioner

will be a danger to a victim, another person, or the

community; (D) if the petitioner is to be released on

probation, any conditions recommended by the Division

of Parole and Probation, the State’s Attorney, or a

victim; and (E) any other factor the court deems

relevant.

Cross reference: See Code, Criminal Law Article, § 5609.1 regarding an application to modify a mandatory

minimum sentence imposed for certain drug offenses

prior to October 1, 2017, and for procedures relating

thereto.

Source: This Rule is derived in part from former Rule

774 and M.D.R. 774, and is in part new.

Mr. Marcus said that there are two versions of proposed

amendments to Rule 4-345 before the Committee.

He noted that

the Chair prepared a comprehensive memorandum comparing the two

proposals.

See Appendix 2.

Mr. Marcus explained that Rule 4-

345 was before the Criminal Rules Subcommittee.

After the

Subcommittee approved proposed amendments, additional issues

were raised.

As a result, an alternate version was developed.

Mr. Marcus added that the Office of the Public Defender then

submitted a letter with proposed modifications to the alternate

version.

See Appendix 3.

Mr. Marcus thanked everyone who

assisted the Subcommittee in developing these amendments.

Mr. Marcus addressed the basic history of Rule 4-345,

including some misconceptions about the Rule.

Rule 774 b was

the predecessor to Rule 4-345, permitting revision by the court

after the original sentence was announced.

Mr. Marcus summarized a defendant’s post-trial rights,

including the right to ask the court to reconsider a sentence.

The current Rule requires that a defendant file a written motion

to reconsider within 90 days of the disposition.

Prior to a

Rule change, there was no limit imposed on the length of time

that the motion was held sub curia.

In 2004, the Court of

Appeals sua sponte imposed a limit of five years within which a

trial court must act on a pending motion to reconsider a

sentence.

Mr. Marcus explained that there are some exceptions

to the five-year limit, including allegations of fraud, mistake,

or irregularity.

Another notable exception relates to Code,

Health – General Article, § 8-507, the method by which the court

can order a defendant to participate in drug counseling or

treatment.

Mr. Marcus emphasized that the ability of the court

to revise sentences is not new.

Mr. Marcus discussed how the proposed amendments to Rule 4345 developed from several factors.

He noted that judges have

expressed concerns about the five-year limitation for ruling on

a motion to reconsider when fashioning appropriate sentences.

pending motion to reconsider enabled the court to maintain

control and supervision over a defendant because further review

and consideration of the sentence at a later date was possible.

Mr. Marcus commented that, in the last ten to 15 years,

science has evolved, and maturity, development, and neuropsychological issues are better understood.

The human brain

does not develop at the pace previously thought, and emerging

adults suffer from impulsivity.

These factors create an

environment where lengthy sentences are inappropriate.

Mr.

Marcus compared the situation to those with certain disabilities

and mental challenges.

There has been a move to look at lengthy

sentences for those in these circumstances.

The Supreme Court

of the United States has issued two opinions in the last ten

years identifying the inappropriate nature of life without the

possibility of parole and other long sentences for youthful

offenders.

Mr. Marcus stated that, in addition to addressing youthful

offenders, the other proposed amendments concern older inmates

who have spent significant time incarcerated.

The question of

continued incarceration of elder inmates needs to be closely

examined for both health and recidivism issues.

Mr. Marcus

explained that the proposed amendments began as a way to review

the status of incarcerable populations at a later point in time.

Mr. Marcus added that the trial judge is central to the

analysis.

He explained that the proposed amendments do not

mandate the release of an individual at a particular time, but

instead concern access to justice.

The proposed amendments

provide an opportunity to reconsider sentences of inmates who

have changed after spending a substantial amount of time in

prison.

He emphasized that the trial judge will need to analyze

whether the defendant should still be incarcerated for the time

originally imposed.

Mr. Marcus commented that the Subcommittee’s version of the

Rule would apply to incarcerated individuals with aggregate

unsuspended sentences of 25 years or more who have served twothirds of that sentence.

The person would be incarcerated for

at least 16.66 years before becoming eligible to file a motion.

The Subcommittee determined that, for purposes of the Rule, any

life sentence or sentence in excess of 60 years would be treated

as a 60-year sentence.

Someone serving a life sentence would

need to serve 40 years before becoming eligible for relief

pursuant to the Subcommittee’s version.

Mr. Marcus explained that the alternate version of the Rule

addresses the unique characteristics of emerging adults when a

crime is committed before the age of 25.

A person committing a

crime before the age of 25 would serve the greater of 15 years

or 60% of the sentence before becoming eligible for relief.

For

the purpose of calculations, life sentences or sentences in

excess of 50 years would be treated as 50-year sentences.

Someone serving a life sentence would be eligible for relief

after 30 years pursuant to the alternate version.

Mr. Marcus referenced charts prepared by Ms. Williams and

her team at the Office of the Attorney General demonstrating the

years to serve until eligibility and a defendant’s age at

eligibility for the Subcommittee version of Rule 4-345.

Appendix 4.

The Office of the Attorney General prepared the

same charts for the alternate version of Rule 4-345.

Appendix 5.

See

He added that the Office of the Public Defender

submitted its own proposal for amendments to Rule 4-345.

Mr.

Marcus praised the collaboration between the two offices, noting

that the Office of the Attorney General created charts for the

Office of the Public Defender’s proposal as well.

See Appendix

Mr. Marcus explained that the Office of the Public

Defender’s proposal adopted the alternate version with two

modifications.

The Office of the Public Defender’s version

would permit an older inmate to file a petition after serving at

least 15 years and reaching the age of 60.

A life sentence or a

sentence greater than 40 years would be considered a sentence of

40 years.

Mr. Marcus noted that a dashboard from the Department of

Public Safety and Correctional Services was requested to learn

more about the inmate population.

See Appendix 6.

In 2019,

almost half of the incarcerated population in Maryland was

serving a sentence of 15 years to life.

In 2019, there were

about 2,200 inmates serving a life sentence in Maryland,

representing 12% of incarcerated individuals.

Mr. Saccenti commented that he was very involved in the

Office of the Public Defender’s proposal.

He first worked with

people who have been incarcerated for 30 years or longer when

working with groups affected by Unger v. State, 427 Md. 383

(2012).

Mr. Saccenti said that he developed a sense of awe at

the capacity of people to change and rehabilitate, even in the

difficult circumstances of prison.

He added that he aspires to

be as thoughtful, compassionate, and giving as these people have

become.

Mr. Saccenti explained that there is no straightforward way

to ask the court for a later modification of sentence, even if

the individual has demonstrated outstanding rehabilitation, and

the judge would like to modify the sentence.

Although State’s

Attorneys point to other mechanisms to review convictions and

sentences, most options either occur soon after the conviction

and before the person has an opportunity to rehabilitate, or

require legal error to give the court authority to act.

legal error cannot be found 30 years later, the person will not

be able to be heard in front of the court.

He acknowledged that

some argue that the parole system should be permitted to do its

job, but there have been issues with the system.

are underway in the legislature.

Reform efforts

One issue with the parole

system is that there is no right to counsel.

Mr. Saccenti

explained that, even for individuals facing parole hearings with

counsel, there is a limited opportunity for counsel to

participate in a meaningful way.

This process contrasts with a

court hearing, which involves attorneys and creates an open

process to review all evidence to make an informed decision.

Mr. Saccenti urged the Committee to pass the alternate

version of Rule 4-345, with two amendments proposed by the

Office of the Public Defender.

See Appendix 3.

When the

calculation is completed for young offenders using the alternate

version of Rule 4-345, a person serving a life sentence or

another lengthy aggregate sentence who committed a crime under

the age of 25 will be eligible to petition the court for relief

after 30 years.

Mr. Saccenti noted that, pursuant to the

alternate version, a 17-year-old serving a lengthy sentence

would reach age 47 before he or she can first apply for this

relief.

He suggested reducing the wait time to around 25 years,

which is still a substantial period of time.

Many individuals

can turn their lives around within that time.

Mr. Saccenti

noted that the 25-year period can be established by redefining a

life sentence in subsection (f)(2) as 40, instead of 50 or 60,

years.

Mr. Saccenti explained that the second proposed amendment

to the alternate version concerns the age at which older

offenders become eligible to petition for relief.

suggested changing the age 65 to 60 years old.

Mr. Saccenti

He noted that

this change would be in line with how the legislature has

addressed geriatric parole in Code, Criminal Law Article, § 14101.

Mr. Saccenti concluded that the alternate version, with or

without modifications, would vastly improve the system, reduce

the problem of mass incarceration in Maryland, and help address

the appalling racial disparity in Maryland’s prison system.

Ms. Williams thanked the Committee for letting her comment

on this issue.

She acknowledged that the alternate version was

a collaborative effort.

She explained that the Attorney General

believes that the alternate version, targeting inmates who

committed crimes under age 25 and inmates who have reached the

age of 65 or older, is the correct way to address the issue of

individuals serving extensive sentences.

The formula in the

alternate version is the right balance to strike.

Research

shows that inmates age out of the likelihood of recidivism

significantly at age 65.

Ms. Williams noted that the Attorney

General submitted a letter explaining his preference.

See

Appendix 1.

Mr. Niemann stated that he has worked on issues involving

youthful offenders for the past year and a half as the Chief of

the Conviction and Sentencing Integrity Unit.

His comments are

on behalf of the State’s Attorney of Prince George’s County.

Mr. Niemann expressed strong support for the alternate proposal.

He added that he is sympathetic to points raised by the Office

of the Public Defender and is aware of the science concerning

emerging adults, brain development, impulse control, and other

factors identified by the U.S. Supreme Court and the Court of

Appeals of Maryland.

There is not a good mechanism to address

these factors, and there is no straightforward method to get the

issues back before the same court.

Mr. Niemann addressed three current mechanisms to modify

sentences.

First, the current ability to reconsider sentences

expires at five years, long before change is demonstrated.

Second, a motion pursuant to Code, Health – General Article, §

8-507 is aimed at drug users and is not appropriate for an

individual incarcerated for 20 years or more.

Third, the parole

process has serious limitations and is not equipped to deal with

the volume of cases being discussed here.

Mr. Nieman added

that, in cases involving juvenile offenders, more than 400

people in the Department of Public Safety and Correctional

Services have served 20 years or more, including a large number

that served over 30 years.

About 70 of these referenced inmates

are in Prince George’s County.

If the numbers are expanded to

include emerging adults, there would be more inmates and a

larger backlog that is not being handled by the parole

commission.

Mr. Niemann explained that a judge is more than capable of

using his or her discretion to decide a direct motion to

reconsider.

A motion to reconsider provides for notice to

victims, an opportunity to be heard, and an impartial

examination of the record.

Mr. Niemann remarked that, based on

his own experience, there are some impressive records of

rehabilitation.

He commented that he has two letters today from

the Department of Public Safety and Correctional Services

discussing one individual who has distinguished himself in a

significant way in the prison system.

It is in the interests of

fairness and justice to address these records of rehabilitation.

He said that the alternate proposal is more effective because

the Subcommittee proposal does not give inmates an opportunity

to establish themselves and create a life when released.

Those

individuals would likely rely on public support or engage in

inappropriate activities ten years down the road.

Mr. Niemann

urged the Committee to adopt the alternate proposal to provide a

clear mechanism to look at these types of cases and to release

those deserving in time to become productive members of society.

He expressed thanks for all the work that has been done on this

topic.

Mr. Shellenberger stated that he is very opposed to the

Rule change.

He commented that, although the Chair worked with

two State’s Attorneys to develop the proposed changes, the vast

majority of the State’s Attorneys are opposed to the amendments.

Mr. Shellenberger stated that he will explain the reasons why

the change is not needed with a Powerpoint presentation.

See

Appendix 7.

Mr. Shellenberger explained that the Rule is premature.

There are six bills pending in the State legislature that, if

passed, will necessitate another Rule change in June.

For

example, Senate Bill 494, the Juvenile Restoration Act, passed

the Senate and is in the House.

He added that the proposed

alternate version of the Rule was not reviewed by the

Subcommittee.

Mr. Shellenberger commented that the Committee has been

here before.

There had been no required timeframe to decide

motions filed pursuant to Rule 4-345 until public outcry

resulted in the changes to the Rule in 2004.

Mr. Shellenberger

offered examples of cases that led to the public outcry and the

Rule change.

He discussed the impact of State v. Greco, 347 Md.

423 (1997).

The defendant killed his girlfriend’s grandmother

and was given two consecutive life sentences, having been

convicted of first-degree murder and rape.

Ten years later, a

motion to modify was granted, and the two life sentences became

concurrent.

All but 50 years of the sentence were suspended.

Mr. Shellenberger explained that there was a lot of litigation

in the case, including a post-conviction proceeding.

In 2012,

the Court of Appeals ordered a re-sentencing, and the defendant

was released.

The victim’s family talked about the difficulty

of repeatedly going through the process.

Mr. Shellenberger noted that Greco was not the only case

that influenced the Rule change in 2004.

He cited another case

involving rape in Prince George’s County in 1995.

served only two years of a seven-year sentence.

The defendant

In 2000, a

reconsideration of the sentence was granted, without the victim

having been notified, and the defendant received a probation

before judgment.

As a result, after having been convicted of

rape and serving time in the Department of Public Safety and

Correctional Services, the defendant became eligible for

expungement.

Mr. Shellenberger presented quotations from The Washington

Post demonstrating the public outcry.

He pointed out that, in

2003, Chief Judge Robert Bell stated that state judges would

support a limit on the time in which to reconsider sentences.

The Washington Post reported that Maryland was the only state at

that time allowing reconsiderations with no time limit.

Mr.

Shellenberger provided additional quotations from The Washington

Post concerning the bench’s opinions about a time limit.

said that the 2004 Rule change limiting the power to reconsider

a sentence to five years resulted from a problem that the

Committee is going to reopen.

Mr. Shellenberger explained that there are already 13 posttrial rights available to defendants.

While many of the rights

concern the defendant’s innocence, there are several other

rights available.

He added that victims have not yet been

mentioned in the discussion before the Committee.

Mr. Shellenberger emphasized that defendants can utilize

the parole system.

The proposed Rule change attempts to take

the place of the parole system.

He added that, if Senate Bill

495 passes, three additional post-trial hearings will be

allowed.

Victims may need to attend 16 additional hearings

after conclusion of the case.

The proposed Rule change would

create an additional hearing, resulting in 17 possible hearings

after closure of the case, with one version of the Rule

permitting a hearing every three years.

Mr. Shellenberger stated that the proposed Rule changes

create a separation of powers issue.

controls parole.

The Executive Branch

If a judge sentences an individual to life

without parole, the Executive Branch cannot change that

sentence.

Mr. Shellenberger indicated that he received current

numbers regarding the 374 individuals in Maryland serving life

without parole in the Division of Corrections.

The motion to

reconsider a sentence may occur thirty years later, with a

different judge.

A different prosecutor will need to present

the case again and the family, previously told that the

defendant received life without parole, will need to be informed

that the defendant’s sentence can change.

and families that will go through this.

There are 374 victims

Examples of crimes that

may result in life without parole include first-degree murder,

first-degree rape, and first-degree sex offense.

Mr. Shellenberger referred to the proposed amendments as a

solution in search of a problem.

Although former governors

paroled no inmates serving life sentences, Governor Hogan has

already paroled 26 lifers.

The State’s Attorney’s office

receives many letters from the Governor asking for its stance on

parole for certain inmates serving life sentences.

Mr. Shellenberger reiterated that there is a separation of

powers issue.

The legislature has determined that 50% of a

sentence for violent crime must be served before the defendant

is eligible for parole.

The proposed Rule changes do not limit

the filings of defendants convicted of violent crimes.

Mr.

Shellenberger indicated that the Rule permits the Judiciary to

work around a law that the legislature passed just a few years

ago regarding how violent criminals should be treated.

Mr. Shellenberger noted that if either version of Rule 4345 is approved today, the current 2,785 lifers in the Division

of Corrections will be able to file motions.

2,785 victims and

families will also receive a letter indicating that they are

coming back to court.

Mr. Shellenberger argued that there may

be even more hearings because it appears difficult for a court

to address the factors included in the Rule without a hearing.

Mr. Shellenberger said that he asked Mr. Robert Green,

Secretary of the Maryland Department of Public Safety and

Correctional Services, how many incarcerated individuals would

qualify for relief under this Rule.

Mr. Shellenberger stated

that Mr. Marcus was close with his numbers.

There are 18,000

inmates in the Division of Corrections and somewhere between 45%

to 47% will qualify as either youthful offenders or geriatric

inmates under either version of the Rule.

The proposed Rule

change will result in about 8,000 or more hearings, requiring

notice to 8,000 or more victims and families that their case is

not over.

Mr. Shellenberger provided the example of Officer Amy

Caprio.

She was murdered in 2018 and there are four co-

defendants in her case.

Mr. Shellenberger presented video

evidence from the case and noted that it was the worst he has

seen.

He pointed out that Officer Caprio’s family will need to

be in the courtroom when the video is played again in 30 years

at a reconsideration hearing for a judge who did not preside

over the original trial.

every hearing in the case.

Officer Caprio’s family has attended

Mr. Shellenberger presented a video

news clip featuring the family of Officer Caprio.

He explained

that one defendant was sentenced to life in prison and three codefendants were each sentenced to 30 years in prison.

If Rule

4-345 is approved, Officer Caprio’s family will need to return

to court multiple times for multiple defendants, in addition to

receiving letters from the parole commission.

Mr. Shellenberger

acknowledged the chart prepared by the Office of the Attorney

General and responded that Officer Amy Caprio will be forever 29

years old.

He commented that those convicted for involvement in

her death should serve their time and the parole commission

system should decide when the defendants may be released.

There

needs to be a point where the State’s Attorney can inform a

victim or victim’s family that the case is over.

Mr.

Shellenberger concluded that there will never be finality if

either version of Rule 4-345 is approved.

The Chair responded that portions of Mr. Shellenberger’s

presentation were incorrect, as well as out of touch with

current social science and judicial policy.

The Chair

emphasized that the Rule assumes sentences were appropriate at

the time of disposition, but reconsideration looks at a

different person at a different time.

He added that it is not

clear what bills pending in the legislature, if any, will pass.

If the legislature addresses this issue, the Rule can be

adjusted.

The Chair commented that there is no violation of the

separation of powers because the court has control over its own

judgments.

Although the Governor can commute sentences, the

Executive Branch cannot change a judicial sentence by statute.

The Executive Branch may decide where a prisoner will serve the

sentence.

Parole, an executive function, is simply serving a

sentence outside of prison walls.

The Chair added that he has not seen any cases with 17

different post-trial hearings.

The various mechanisms for post-

trial relief concern different issues, primarily dealing with an

illegality in the proceeding or a claim of innocence.

The Chair

emphasized that proposed amendments to Rule 4-345 address a

different situation.

The Chair acknowledged the previous statements of Judge

Bell in 2004, but noted that Judge Bell had not been asked for

his current view.

For years, there was no limit on a court’s

ability to review and revise a sentence and there is no

constitutional limit.

The Chair added that the Committee

opposed the addition of the five-year limitation in 2004.

The

Court acted on its own because of pressure from the legislature

after certain case results.

The Chair stated that the Committee

needs to consider, as part of sound judicial policy, whether

rehabilitation has any role in the revision of a sentence years

later.

If the philosophy is to lock defendants up and throw

away the key, then the Rule should not be amended.

The Chair

said, however, that he does not believe that the Committee, the

General Assembly, or the country currently hold that position.

Ms. Gingerich introduced herself as an advocate with the

National Organization for Victims of Juvenile Murderers.

She

expressed concerns with the current proposed versions of the

Rule and the impact on victims.

Although most juvenile

offenders can be reformed, life and long sentences are

appropriate in some cases.

She noted that some juveniles commit

evil crimes with full knowledge of their actions and an

understanding of the results of their actions.

Ms. Gingerich

provided two examples of juvenile offenders who met this

description.

She first discussed the case of 17-year-old Daniel

LePlant from Massachusetts.

She explained that Ms. Gustafson,

who was pregnant at the time, and her children returned to their

home while Mr. LePlant was burglarizing it.

Mr. LePlant then

raped Ms. Gustafson and shot her twice in the head, killing her.

He drowned the five-year-old and seven-year-old children.

The

second example was Johnny Freeman from Chicago, also 17-years33

old.

Ms. Gingerich recounted that Mr. Freeman lured a five-

year-old child to a vacant apartment on the 14th floor of a

housing project.

After committing rape, Mr. Freeman tried to

kill the five-year-old by throwing her out of the 14th-floor

window.

Although the victim initially grabbed the window ledge,

Mr. Freeman shoved her again and the child fell to her death.

Ms. Gingerich added that many victims and families oppose

the release of convicted killers.

murder when speaking out.

They are forced to relive the

Traumatizing criminal justice

hearings should be kept to an absolute minimum.

Ms. Gingerich

raised the issue that the Rule gives murderers a lot of chances

to be released.

In Maryland, a defendant sentenced to life with

parole gets his or her first parole hearing after 15 years.

The

hearing may occur after only 11 and a half years for good

behavior.

In addition to these parole hearings, the defendant

would now have judicial review hearings after 20 years, each

review just 3 years apart.

As a result, a victim or victim’s

family may go through four or five hearings for just one

offender in 26 years.

Cases involving multiple juveniles would

need even more hearings, such as in the case of Officer Caprio.

Ms. Gingerich noted that the proponents of this Rule talk about

second chances, but the Rule goes further by granting third,

fourth, and even fifth chances.

Ms. Gingerich requested that

the number of traumatizing hearings be reduced.

Mr. Marcus directed the Committee to the materials.

noted that the alternate version of Rule 4-345 shows the changes

from the Subcommittee version in bold.

He said that he will

lead the discussion with the alternate version because it

contains new changes, as well as the changes proposed in the

Subcommittee version.

Mr. Marcus highlighted the proposed changes to section (e),

including a stylistic change to amend the tagline and to add

language in the middle of the paragraph reaffirming the existing

state of the Rule.

He said that later added language concerning

special circumstances relates to other proposed additions to the

Rule of an additional opportunity for the court to review a

sentence.

Mr. Shellenberger inquired whether the Committee should

first address larger issues, such as whether it should wait

until June to address this Rule.

Mr. Shellenberger made a

motion to defer consideration of the Rule unless or until the

General Assembly finishes its work and the Committee knows what

bills may affect the Rule.

The motion was seconded.

The Chair opposed the motion.

He stated that the Committee

does not need to wait for the legislature to act as if the Court

has no role to play.

Each year the Committee deals with new

laws passed by the legislature.

The Chair emphasized that Rule

4-345 concerns a matter within the authority of the Committee.

The Rule is currently before the Committee with a proposal from

the Subcommittee.

Mr. Zollicoffer agreed with the Chair’s opposition.

added that the Committee should not waste the time and efforts

of the multiple agencies that weighed in on this issue.

Mr.

Zollicoffer commented that this Rule is ripe to address and

there are a lot of incarcerated people who have had the

opportunity to change.

Is there a Department of Public Safety

and Correctional Services or should the name be changed to the

department of warehousing?

Mr. Zollicoffer said that

foreclosing this issue because the legislature may act is

inappropriate and the Committee should act while the issue is

currently before it.

Mr. Kramer commented that this is a fascinating issue.

member of the Committee would contend that people cannot change

or that no one should ever get an opportunity at life again.

Mr. Kramer stated that he has been advocating that sentiment for

his own colleagues for many years.

A person may change, but

that does not mean that the sentence imposed was unjust or

unfair.

If the Judiciary does not believe that defendants

should be locked up and the key thrown away, then it should not

be a sentencing option.

When life without parole is an option,

the very notion that a judge or factfinder with no familiarity

with the case can later poke holes in the original sentence does

not make a lot of sense.

Mr. Kramer noted that problems with

the parole board should be addressed with the parole board.

These discussions involve public policy decisions that sound

very legislative.

Mr. Kramer questioned the purpose of a parole

board if the court has continuing jurisdiction to modify a

sentence in every case and suggested that a separation of powers

issue exists.

Judge Bryant commented that the Supreme Court has taken up

the issue of the constitutionality of juvenile life sentences

several times since 2008.

the Court.

The issue is properly addressed by

She added that the motion currently before the

Committee is not a policy issue, but a question of whether the

Committee should go forward at this time.

Mr. Marcus inquired whether Mr. Kramer supported Mr.

Shellenberger’s motion to defer consideration of the proposed

Rule changes.

motion.

Mr. Kramer responded that he supported the

He further suggested that he does not know why the

Court of Appeals would limit sentence revision to five years

unless it was concerned with binding any action on a sentence to

the circumstances surrounding the imposition of the sentence.

Mr. Marcus clarified that the current discussion concerns the

motion of whether to defer consideration of the proposed

amendments and that policy issues will not be addressed at this

time if the matter is delayed.

Judge Price added that there was a discussion at the

Subcommittee meeting as to whether there should be limitations

for who is eligible for relief based on age.

Judge Price

opposed using an age limitation because the cut off was

arbitrary.

She echoed Mr. Shellenberger’s point that the

General Assembly appears ready to address this issue in a month.

The delay to consider the Rule would be only for a month to see

what action the legislature takes.

Shellenberger’s motion.

Judge Price supported Mr.

Mr. Shellenberger noted that a meeting

can be scheduled for April 14, when the Committee will know if

there is a statute that requires changes to the proposed

amendments.

Judge Nazarian opposed Mr. Shellenberger’s motion.

explained that the Committee can consider the Rule today and the

issue can be addressed again in April or May if the legislature

takes action.

The proposed amendments can also be revised in

the Report to the Court or fixed by the Court before the amended

Rule is adopted.

Mr. Saccenti commented that there are two bills with the

potential to pass in the legislature, but he is unsure whether

the bills would affect any action of the Committee.

The first

bill is to remove the Governor from the parole system, which

does not affect Rule 4-345.

The second bill is the Juvenile

Restoration Act, allowing juvenile offenders to file a motion

for modification after serving 20 years.

If the Committee were

to recommend one of the amendments proposed today and the

Juvenile Restoration Act passes, aspects of the Rule would need

to be slightly tweaked for those who committed crimes while

under the age of 18.

There was no further discussion on the motion to defer

consideration of the Rule. The motion failed with a majority

opposed.

Mr. Marcus directed the Committee’s attention to the

language of the proposed amendments.

(f) of the alternate version.

He started with section

Two special circumstances do not

require having a motion for reconsideration filed or pending

within 90 days after the disposition.

The first special

circumstance in subsection (f)(1) is a civil commitment pursuant

to Code, Health – General Article, § 8-507.

Mr. Marcus noted

that subsection (f)(1) contains the special circumstance that

already appeared in the Rule, but it is presented in a new

format in the alternate version.

A Committee note clarifies

that, for the civil commitment to occur, a defendant must be

placed on probation or have his sentence suspended.

A defendant

cannot be civilly committed to a facility if incarcerated.

Mr. Marcus next pointed to subsection (f)(2).

The

Subcommittee’s version requires a defendant sentenced to 25

years or more to have served two-thirds of that sentence before

seeking relief.

The alternate version requires a defendant who

committed the offense prior to age 25 to have served 15 years or

60% of the sentence.

Mr. Marcus noted that the letter from the

Office of the Public Defender presents another alternative.

See

Appendix 3.

Mr. Marcus clarified the differences between the alternate

version and the version proposed by the Office of the Public

Defender.

He explained that the suggestion from the Office of

the Public Defender primarily concerns what amount of time

should be used for calculations involving life sentences and

greater aggregate sentences.

Mr. Shellenberger pointed out that the Department of Public

Safety and Correctional Services considers a life sentence to be

60 years.

He stated that the Committee should be consistent

with the parole process and the Department.

The Chair asked why

the Committee should be bound by the parole board or the

Department.

Mr. Shellenberger responded that he was not

suggesting that the Committee should be bound, but that using

the same definition of a life sentence would make court actions

consistent with the actions of the Department.

The Chair stated

that the issue is what time period is best for the purpose of

judicial review and Rule 4-345.

The Chair completed comparisons.

If a person committed a

crime at 18 years old and was sentenced to 40 years, the person

would need to serve 27 years pursuant to the Subcommittee’s

version of the Rule, but would need to serve only 24 years under

the alternate version.

There is a difference of five years

before the defendant is eligible to file a motion.

If a person

committed a crime at age 24 and received a 30-year sentence, the

person would need to serve 20 years under the Subcommittee

version or 18 years under the alternative version before

becoming eligible to file a motion.

The Chair added that the

Subcommittee’s version tries to help all those incarcerated,

while the alternate version focuses on the young and old

populations by making those groups eligible for relief earlier.

Mr. Kramer inquired whether there have been any studies

done, irrespective of age, concerning how the duration of

incarceration may impact recidivism.

He expressed concern that

the cut off at age 25 may be arbitrary.

Mr. Marcus stated that Rule 4-345 addresses at what point

in time the court cannot entertain further review of a sentence.

The Rule does not guarantee release, but gives the court an

opportunity to review the sentence.

Mr. Kramer asked, if this

change is not about release, why not give judges continuing

jurisdiction over sentences?

Chief Judge Morrissey noted that he was a guest at the

Subcommittee meeting addressing these proposed amendments.

said that he is in favor of the amendments because of the

science on brain development and the lack of recidivism when

older inmates are released.

He wondered, however, whether the

amendment should apply to everyone.

It seems unfair that

someone who committed a crime when 25 years old would be treated

differently than someone who committed a crime when 26 years

old.

This rationale is why the Subcommittee version takes a

different approach than the alternate version, which was

rejected at the Subcommittee hearing.

Judge Price echoed Chief Judge Morrissey’s statements.

The

comparisons given by the Chair do not seem to create such a

great differential that the Rule should exclude the rest of the

population from this relief.

Judge Price agreed that the

proposed amendments are discriminating based on age, especially

by utilizing cut-off ages.

changes to tax brackets.

She compared the proposed Rule

Judge Price stated that the Rule

should provide a chance for review for every person after

serving a certain amount of his or her sentence.

The Chair

responded that a simple solution to this issue would be

repealing the five-year provision and the 90-day filing

requirement currently in Rule 4-345.

Mr. Laws spoke in favor of some bright-line Rules.

These

changes are addressing defendants who either committed crimes

before their brains were fully formed or are geriatric

prisoners.

If the criteria for these populations is taken out

of the equation, the Committee needs to weigh more carefully the

idea of finality and the concern of repetitive proceedings.

Mr.

Laws expressed concern that the Subcommittee version already

veers too far in favor of repetitive hearings.

He wondered how

much of the court’s time will be taken up by these petitions.

He added that keeping a case open should be the exception,

rather than the rule.

For example, a bankruptcy petitioner

cannot file another bankruptcy petition for eight years after

receiving a discharge.

Mr. Laws stated that permitting filings

every three years raises the possibility of many repetitive

hearings that victims and State’s Attorneys will need to devote

a lot of resources to address.

Judge Bryant commented that the bright-line version is

premised on science and social science, specifically on the

premises that brains do not mature until age 25 and recidivism

decreases with age.

Judge Price questioned whether the brain of

a person who is 25 and a half years old is really different from

the brain of a 25-year-old.

Judge Bryant indicated that she

cannot respond to that issue because she did not complete the

research.

She noted that while a 17-year-old may be considered

mature enough to work at a restaurant, the Rule indicates that

another 17-year-old holding up the restaurant is not mature

enough to commit the crime.

Mr. Laws stated that the Subcommittee version appears to

give defendants one bite of the apple.

After a petition is

denied, it cannot be brought back to court.

In the alternate

draft, a defendant can file again after three years.

noted that the three-year time period is short.

Mr. Laws

He suggested

that the time period for re-filing be every six or seven years.

Judge Davey moved to adopt the alternate version of

subsection (f)(2). The motion was seconded.

Judge Nazarian

requested that Judge Davey accept an amendment to his motion to

incorporate the changes from the version of subsection (f)(2)

offered by the Office of the Public Defender.

Judge Davey

declined to amend the motion.

The motion to recommend Rule 4-345 (f)(2)(A) as it appears

in the alternate version passed by a majority vote.

Judge Nazarian noted that the Committee needs to determine

whether it will stick with the parameters in the alternate

proposal or consider the amendments within subsection (f)(2)

that were proposed by the Office of the Public Defender.

Mr. Shellenberger commented that he wanted the Committee to

understand how these amendments give inmates an opportunity for

release.

Judge Nazarian commented that he was a member of the

Subcommittee that voted to remove the age restriction based on

the arbitrariness of the bright line, but it had the unintended

consequence of turning the resulting chart into something less

desirable than the alternatives considered today.

Judge

Nazarian acknowledged that Mr. Shellenberger is correct about

the effect of these amendments, but noted that he believes this

is the correct effect.

Judge Nazarian moved to amend subsection (f)(2)(A)(ii) of

the alternate version to change age 65 to age 60 and to change

the reference in the next sentence from 50 years to 40 years, as

proposed by the Office of the Public Defender.

The motion was

seconded and passed by a majority vote.

Mr. Marcus directed the Committee’s attention to subsection

(f)(2)(B), addressing the court’s authority to entertain a

motion or a petition to revisit a sentence.

He acknowledged

that there was robust debate about the change in the Rule, but

stated that this subsection effectuates only what was discussed.

Mr. Marcus next addressed section (g), explaining that the

differences between the two versions are largely stylistic.

stated that the language in subsection (g)(1) clarifies that, if

there were multiple sentences in different jurisdictions, a

petition must be filed in each court where the sentence was

handed down.

Mr. Marcus explained that the alternate version

states this idea more clearly than the Subcommittee version.

Mr. Zollicoffer moved to adopt subsection (g)(1) of the

alternate versions.

The motion was seconded and passed by a

majority vote.

Mr. Marcus next discussed subsection (g)(2) of the

alternate version, providing that the State’s Attorney may, but

is not required to, file an answer.

The State’s Attorney,

however, is required to ensure that each victim is given notice

of the pending petition in accordance with Code, Criminal

Procedure Article, Title 11.

Judge Brown moved to adopt subsections (g)(2) and (g)(3) of

the alternate version.

The motion was seconded and passed by a

majority vote.

Mr. Marcus highlighted the stylistic changes to subsection

(g)(4) of the alternate version.

Mr. Marcus explained that

subsections (g)(5) and (g)(6) of the alternate version relate to

notice to the Office of the Public Defender and provide that the

Court will have an opportunity to request a report concerning

inmate status and conduct during the period of incarceration,

respectively.

Judge Bryant raised an issue of ethical discomfort with a

judge requesting factual information and seeking out information

that may either help or hinder a movant.

She noted that asking

for a competency evaluation or an evaluation of the propriety of

the sentence is different than the actual fact-finding proposed

in this Rule.

Judge Bryant concluded that, if the Rule requires

a judge to consider such a report by using the term “shall” in

subsection (h)(4) of the alternate version, the onus should be

placed on either the defendant or the State to request a report.

Mr. Marcus responded that he thought the report would be

kept and maintained by the Department of Public Safety and

Correctional Services and would be fairly confined.

He asked

whether there is an issue with limiting the request to a report

kept and maintained by the institution recording an inmate’s

incarcerated conduct.

Judge Bryant stated that the problem concerns a judge

asking for the information.

She proposed amending the language

to state that the person seeking action from the court should

provide a certified copy of his or her adjustment record.

Mr.

Marcus asked whether Judge Bryant sought to place the onus on

the defendant to present the record if the defendant wished to

include that information.

Judge Bryant responded that it is not

a matter of whether the defendant wishes to have the information

because the Rule requires the Court to consider it.

She

clarified that she would prefer a certified copy to ensure there

are no alterations.

The Chair inquired whether an inmate can

receive a report from the Department of Public Safety and

Correctional Services simply by asking.

Judge Bryant noted that

attorneys have secured the report and submitted it to court

before.

Mr. Marcus added that a caseworker is normally

involved, helping the flow of information.

The Reporter asked for clarification as to the name of the

referenced report.

Judge Bryant noted that it may be called an

institutional adjustment record.

Judge Bryant moved to amend subsection (g)(1) of the

alternate version to require a movant to submit a certified copy

of the institutional adjustment record with the petition.

The

motion was seconded and passed by majority vote.

Mr. Marcus next addressed section (h) concerning a hearing

pursuant to the Rule.

He explained that subsection (h)(1) in

the alternate version permits dismissal of a petition without a

hearing if a petition under this Rule was denied after a hearing

during the preceding three years.

A hearing will not be held

unless the petitioner makes his or her eligibility for review

under this section clear in the petition.

If the court

determines in a review of the petition that the petitioner does

not qualify for relief, that determination can be made without a

hearing.

Mr. Laws noted that repetitive filings would be a burden on

the offices involved and an imposition on victims.

He suggested

that the three-year limitation in subsection (h)(1) be changed

to six years.

Mr. Laws added that the Rule is permissive, and

repetitive filings may occur if not summarily dismissed.

Permitting hearings every three years tips the balance too far

in favor of repetitive reviews of youthful and geriatric

prisoner cases.

Mr. Zollicoffer commented that he has no issue with

youthful offenders being permitted to file every six instead of

three years.

He noted, however, that when a geriatric offender

is not eligible until age 60, the impact of a motion being heard

only every six years may be too severe.

Mr. Wells agreed and

added that the Rule is a combination of age and percentage of

sentence served.

file one petition.

Some inmates may only have the opportunity to

Mr. Laws acknowledged the concerns, but

noted that keeping the permissive word “may” in the Rule creates

a safety valve that enables a judge to consider a geriatric

inmate’s petition less than six years after another petition was

filed.

Mr. Shellenberger explained that he supported changing

the time in subsection (h)(1) to six years because in cases with

multiple defendants, such as the Officer Caprio case, victims or

families are constantly coming back for hearings.

It is not

unreasonable to be required to wait a little longer between

petitions.

Mr. Kramer added that if an older inmate cannot

demonstrate reform at age 62, it is unlikely he or she will be

able to demonstrate reform at age 65.

Mr. Zollicoffer stated that the Committee must also

consider the effect on the government.

Money can be used in a

more positive way to help society instead of being used to house

an inmate over age 60 who poses no threat of recidivism.

Mr.

Zollicoffer noted that the letter from the Office of the Public

Defender indicated that two young adults can attend college for

the cost it takes to imprison one elderly individual for one

year.

See Appendix 3.

Mr. Shellenberger noted that there is a

bill in Annapolis to change the geriatric parole limit from 65

years to 60 years.

Mr. Marcus asked whether the use of “may” in the first line

of subsection (h)(1) may be misconstrued and read as an

exclusion of further consideration of a motion filed within

three years of an earlier motion.

Mr. Laws responded that it is

difficult to comment on the correct interpretation because he

did not prepare the draft.

Mr. Marcus agreed that the phrase

was meant to be permissive, but he wanted to make the intention

clear.

Mr. Laws commented that it appears the court has the

power, but is not required, to dismiss for either ground

mentioned in subsection (h)(1).

He added that the Style

Subcommittee may clarify the language.

Mr. Laws moved to amend the three-year limitation in

subsection (h)(1) to six years.

The motion was seconded and

passed by a majority vote.

Mr. Marcus next addressed subsection (h)(4) of the

alternate version.

This subsection lists items to be considered

by the trial judge and was added to the Subcommittee proposal.

The subsection in the alternate version sets out a series of

factors that the court must consider in ruling on the petition.

Judge Bryant commented that subsection (h)(4)(A) should use the

term “institutional adjustment record” to be consistent with

subsection (g)(1).

She added that she does not understand the

sliding scale of substantial compliance with the rules of the

institution referenced in subsection (h)(4)(A).

Judge Bryant

noted that the range of discretion may become problematic.

Judge Price suggested that the Rule state that the court

shall consider the defendant’s institutional record.

Judge

Bryant responded that consistency is key because judges may read

the Rule differently.

Using the term “institutional adjustment

record” makes clear exactly what is being considered.

Judge Bryant moved to amend subsection (h)(4)(A) to refer

to consideration of the petitioner’s institutional adjustment

record.

The motion was seconded and passed by a majority vote.

Judge Bryant questioned how to judge the defendant’s

ability to waive his presence as noted in subsection

(h)(3) of the alternate version.

Considering a waiver requires

judging the maturity of the defendant without the defendant

present.

She noted that the waiver language is not new, and she

has not had any defendant waive his presence for a hearing under

this Rule.

It is difficult for judges to consider a waiver when

the only information available is from the paperwork.

The Chair

responded that requiring notice to the Office of the Public

Defender will help an attorney enter the case, which makes a

waiver more unlikely.

Judge Bryant commented that, as a practical matter, a judge

hearing the motion may not have tried the case and does not have

the ability to judge sincerity or other intangibles without the

defendant’s presence.

The Chair noted that the alternative is

to require the defendant’s presence.

Judge Bryant suggested

that the waiver be eliminated from this special category.

The

victims should have the right to see the maturity of the

defendant.

Judge Bryant noted that she has personal experience

with murders and a range of responses from family members, with

some unable to speak the victim’s name years later.

The Chair asked about a waiver if the defendant is

physically or mentally incapable of appearing.

Judge Bryant

responded that appearance can be by video conferencing, but she

opposed a flat waiver in the special circumstances of this

subsection.

The Chair stated that a defendant may have dementia

or be physically incapable of appearing.

Judge Bryant commented

that a defendant may submit a medical certification, but the

need to appear is different if the person is whole and able.

Judge Bryant moved to require the defendant’s presence at

hearings pursuant to this Rule unless the defendant is

physically or mentally incapable of actively participating in

the hearing.

The motion was seconded and passed by majority

vote.

By consensus, the Committee approved the alternate version

of the Rule as amended.

Agenda Item 2. Consideration of proposed Rules changes

pertaining to Virtual Jury Trials

_______________________________________________________________

Judge Davey, Chair of the Trial Subcommittee, presented

proposed amendments to Rule 2-801 (Definitions), proposed new

Rule 2-807 (Virtual Jury Trials), proposed amendments to Rule

16-302 (Assignment of Actions for Trial; Case Management Plan),

proposed new Rule 16-309 (Remote Electronic Participation in

Jury Cases), and proposed amendments to Rule 16-803 (Continuity

of Operations Plan), Rule 2-504 (Scheduling Order), and Rule 2504.1 (Scheduling Conference), for consideration.

MARYLAND RULES OF PROCEDURE

TITLE 2 – CIVIL PROCEDURE – CIRCUIT COURT

CHAPTER 800 – REMOTE ELECTRONIC PARTICIPATION IN

JUDICIAL PROCEEDINGS

AMEND Rule 2-801 to define “evidentiary

proceedings” in new section (a), to define “judicial

proceeding” in new section (b), to define “virtual

jury trial” in new section (h), and to renumber

current sections (a), (b), (c), (d), and (e), as

follows:

RULE 2-801.

DEFINITIONS

In this Chapter, the following definitions apply

except as otherwise provided or as necessary

implication requires:

(a)

Evidentiary Proceeding

“Evidentiary proceeding” means a judicial

proceeding, including a motions hearing, bench trial,

jury trial, or hybrid jury trial (virtual jury

selection with in-person evidence presentation and

deliberation) where testimony and documentary or

physical evidence will be presented to a jury or a

judge.

(b)

Judicial Proceeding

“Judicial proceeding” means any evidentiary or

non-evidentiary proceeding over which a judicial

officer presides, to include a judge, magistrate,

auditor, or examiner.

(a)(c)

Non-evidentiary Proceeding

“Non-evidentiary proceeding” means a judicial

proceeding, including a conference, presided over by a

judge, magistrate, auditor, or examiner, where neither

testimony nor documentary or physical evidence will be

presented, other than by stipulation by all parties.

Committee note: Consideration of documents attached

to a motion or a response to a motion does not,

itself, preclude a hearing on the motion from being

deemed a “non-evidentiary proceeding.”

(b)(d)

Participant

“Participant” includes a party, witness,

attorney for a party or witness, judge, magistrate,

auditor, or examiner, and any other individual

entitled to speak or make a presentation at the

proceeding.

(c)(e)

Remote Electronic Participation

“Remote electronic participation” means

simultaneous participation in a judicial proceeding or

conference from a remote location by means of

telephone, video conferencing, or other electronic

means approved by the court pursuant to the Rules in

this Chapter.

(d)(f)

Remote Location

“Remote location” means a place other than the

courtroom or other physical location where a judicial

proceeding or conference is to be conducted.

(e)(g)

Video Conferencing

“Video conferencing” means a method of

conducting a judicial proceeding, including a virtual

jury trial under Rule 2-807, conducted by the use of

an interactive technology that sends video, voice, and

data signals over a transmission circuit so that two

or more individuals or groups can communicate with

each other simultaneously using video monitors and

related audio equipment.

(h) Virtual Jury Trial

“Virtual jury trial” means a jury trial

conducted by remote electronic participation.

Source: This Rule is new.

MARYLAND RULES OF PROCEDURE

TITLE 2 – CIVIL PROCEDURE – CIRCUIT COURT

CHAPTER 800 – REMOTE ELECTRONIC PARTICIPATION IN JUDICIAL

PROCEEDINGS

ADD new Rule 2-807, as follows:

RULE 2-807.

(a)

VIRTUAL JURY TRIALS

Applicability

This Rule applies to situations in which any

proceeding in a case that may be tried before a jury

may or will be conducted by remote electronic

participation. Except to the extent of any

inconsistency with the Rules in this Chapter, the

other applicable Maryland Rules apply. To the extent

there is any inconsistency, the Rules in this Chapter

prevail.

(b)

Circumstances Warranting Virtual Jury Trial

In any case where (1) the parties and the

county administrative judge consent to a virtual jury

trial or (2) the court orders a trial to be heard

remotely due to a state of emergency as declared by

the Governor and the Chief Judge of the Court of

Appeals, the trial shall proceed through remote video

conferencing.

Committee note: The advent and implementation of this

Rule was deemed necessary as a consequence of the

COVID-19 pandemic. While not limited to pandemics or

other natural disasters, it is the intention that the

invocation of this Rule be considered only in the most

dire and emergent circumstances. The Rule is not

intended to supplant or substitute trial processes on

virtual platforms for trials conducted in courthouses

or suitable substitute locations with all parties,

counsel, witnesses, and jurors physically present in a

designated location. Trial judges are reminded to

employ virtual jury trials as a procedure of last

resort and to preserve the time-honored process of

public trials with full and unfettered opportunity of

all parties to participate in the proceedings in

person, except as otherwise permitted elsewhere in the

Rules of Procedure.

(c)

Subpoenas

(1) Generally

Any subpoena issued to require the presence of

an individual at a proceeding to be conducted by

remote electronic participation shall, in addition to

the content requirements of Rule 2-510, describe the

method by which that presence will be implemented and

shall state that details will be supplied by a court

official before the court proceeding. The party

requesting the subpoena shall in writing provide the

court official with an e-mail address for the

individual subject to the subpoena. Unless

impracticable, the court official shall send log-in

information at least five days before the date of the

virtual jury trial.

The subpoena shall direct the individual to

contact the party who requested the subpoena within

three days if the individual is unable to effect his

or her presence in that manner.

(2) If Remote Electronic Participation by Witness

is Impracticable

If it is impracticable for a witness to

appear by remote electronic participation for the

proceeding, the subpoena may direct the witness to

appear at the courthouse to participate with lawful

and appropriate assistance from court personnel. The

party requesting the subpoena shall (A) file a return

of service and (B) notify the clerk in writing at

least three days before the trial if a witness was

served with a subpoena pursuant to subsection (c)(2)

of this Rule.

Committee note: The party requesting the subpoena

should make reasonable efforts to secure an e-mail

address for the witness to comply with subsection

(c)(1). However, in the instance where remote

electronic participation cannot be secured, subsection

(c)(2) requires the witness to physically appear at

the courthouse for assistance.

(d)

Pretrial Proceedings

(1) Scheduling Conference

If the court anticipates that a jury trial

will be conducted by remote electronic participation,

or upon motion of a party, the court shall conduct a

scheduling conference pursuant to Rule 2-504.1. At the

scheduling conference, any party may note an objection

to a virtual jury trial and provide reasons for the

objection. The court shall consider the objection

prior to determining whether a jury trial shall be

conducted by remote electronic participation.

(2) Pretrial Conference

(A) Timing

The court shall conduct a pretrial

conference no later than ten (10) days before the

virtual jury trial.

(B) Prior to Pretrial Conference

To the extent practicable, all proposed

exhibits, other than rebuttal and impeachment

exhibits, and requested jury selection questions shall

be filed with the court and served on the other

parties at least ten days before pretrial conference.

To the extent practicable, any objections to the

admissibility of exhibits shall be filed and served

within three days after service.

In addition to the matters listed in Rule 2504.2 (b), the court shall consider the following

matters in preparation for a virtual jury trial:

(i) An inquiry to confirm that each attorney,

party, and witness have the technology required to

participate;

Committee note: The Court should direct all

participants to troubleshoot the video conferencing

software, exhibit presentation, use of breakout rooms,

bench conferences, and other aspects of the virtual

trial to gain familiarity with the process.

(ii) Appropriate virtual backgrounds to be

displayed by each attorney, party, and witness at all

times;

(iii) Resolution of any objections raised

pursuant to subsection (d)(2)(B);

(iv) Conversion into electronically viewable

format of exhibits to be offered into evidence and, as

appropriate, made available to jurors and witnesses;

(v) Identification and determination of any

objections to depositions under Rule 2-419 (d) at the

pretrial conference;

(vi) Additional instructions that are to be

given pertaining to the remote nature of the jury

trial;

Committee note: Instructions should include

guidelines for participating in the virtual

proceedings, such as a requirement that video cameras

remain powered on throughout the entirety of the

hearing, background noises and other distractions

should be minimized, participants may only use their

technological device to attend the proceeding, and all

other technological devices must be powered off.

(vii) The method for providing jury

instructions to jurors, such as through e-mail or via

a court approved secure file sharing service;

(xiii) The judge and attorneys shall agree on

a trial schedule designed to minimize the fatigue

associated with online participation in a virtual

trial. After a reasonable effort to reach an

agreement, the court shall enter a trial schedule;

Committee note: A trial schedule designed to minimize

fatigue may include limiting morning and afternoon

sessions to three hours and scheduling periodic

breaks.

(ix) Any other matters that can be resolved

prior to trial to minimize sidebar conferences or

otherwise expedite the trial proceedings.

(D) Pretrial Conference Order

Following the pretrial conference, all parties

shall sign a Pretrial Conference Order reciting the

actions taken and stipulations made. The Order shall

control the subsequent proceedings and may only be

modified to prevent injustice.

(e)

Jurors

(1) Jury Selection

(A) Juror Qualification Forms

Juror qualification forms may be used to

collect information regarding the juror’s ability to

participate in a virtual trial and the contents of the

form shall comply with Rule 16-309 (b). Except as

provided in Rule 2-512 (c), responses to juror

qualification forms shall remain confidential.

(B) Examination

Jury selection may occur by video

conferencing. In advance of the examination, casespecific written questionnaires may be used to elicit

appropriate information. The parties shall have

access to the jurors’ responses to case-specific

written questionnaires in advance of the examination

to expedite the selection process.

The Court may select up to two additional

alternate jurors to serve on the jury panel. This

will be in addition to the alternates ordinarily

selected for an in-person jury trial. The extras will

account for jurors who experience technical

difficulties, which could prevent them from continuing

with the trial, or who develop a COVID-19 or other

health-related issue that requires them to be excused.

(2) Jury Instructions

(A) Empaneled jurors will receive instructions

and training on the use of remote technology and the

protocol for informing the judge if they experience

technical problems during the trial. As with other

virtual court events, designated staff will be

available and responsible to monitor and address

technical issues. All jurors will have a way to

contact designated court staff (including by phone) to

convey any technical problems or other issues during

trial.

(B) At the commencement of trial, the court

shall provide specific instructions and information to

the jury that pertain to the remote format of the

trial.

Committee note: The trial judge should provide an

enhanced jury charge that emphasizes the need for

jurors to give their full attention to the trial and

to maintain the secrecy of jury proceedings.

pursuant to Rule 2-520, the court shall issue

instructions to the jury by video conferencing. At

the court’s discretion, jury instructions may be made

available to jurors during deliberations in a digital

viewing format.

(3) Jurors’ Notes

Jurors shall be permitted to take notes but

shall be instructed to destroy or delete those notes

at the conclusion of the trial. A juror’s notes may

not be reviewed by or relied upon for any purpose by

any person other than the author.

Cross reference: See Rule 2-521 (a) for treatment of

jurors’ notes during an in-person trial.

(4) Juror Review of Evidence

The court shall arrange for documentary

evidence and a verdict sheet to be converted into a

digital viewing format that shall be secure but

available for juror access during deliberations.

(5) Deliberations

Jurors shall deliberate using the same video

conferencing software used to participate during the

virtual jury trial. However, jurors shall be placed

in a separate virtual breakout room where access will

be restricted to jurors. Except for the jurors, no

one will be permitted access to the virtual

deliberation room. Once a verdict has been reached,

the jury foreperson shall notify the designated

officer of the court, who will then notify the judge.

(6) Jury Verdict

Once a verdict has been reached, the jury

shall be moved from the separate virtual breakout room

to the virtual courtroom to return the verdict in open

court. The jury shall be polled before it is

discharged. If the poll discloses that the jury, or

stated majority, has not concurred in the verdict, the

court may direct the jury to retire for further

deliberations or may discharge the jury.

(7) Communication with Court

All communications by a juror shall be made to

the court employee designated by the judge to receive

them, who shall forward them to the judge. If the

judge determines that the communication pertains to

the action, the judge shall promptly, and before

responding to the communication, direct that the

parties be notified of the communication and invite

and consider, on the record, the parties’ position on

any response.

Cross reference: See Rule 2-521 (d) for

communications with the jury during an in-person

trial.

(f)

Use of Electronic Devices

In accordance with Rule 2-805 standards and

requirements, all court personnel, parties to a case,

and witnesses are permitted to use technological

equipment and video conferencing software to

facilitate a virtual jury trial. Jurors shall be

permitted to use an electronic device with audio and

video capabilities, and video conferencing software,

to participate in the virtual jury trial. Jurors

shall be prohibited from using their electronic device

for any purpose other than participating in the

virtual jury trial while the trial is in session.

Except during periods specified by the judge, other

electronic devices shall be turned off or put on

vibrate while the trial is in session.

(g)

Recording Proceedings

A person may not record, download, or transmit

an audio, audio-video, video, or still image of

proceedings under this Rule except as directed by the

court for compliance with Rule 2-804 (e) and (f).

MARYLAND RULES OF PROCEDURE

TITLE 16 – COURT ADMINISTRATION

CHAPTER 300 – CIRCUIT COURTS – ADMINISTRATION AND CASE

MANAGEMENT

AMEND Rule 16-302 to require a certain addition

to a case management plan pertaining to virtual jury

trials; to renumber current subsections (b)(5) and

(b)6) as subsections (b)(6) and (b)(7), respectively;

and to add a Committee note and cross-reference

following new subsection (b)(5), as follows:

RULE 16-302. ASSIGNMENT OF ACTIONS FOR TRIAL; CASE

MANAGEMENT PLAN

(a)

Generally

The County Administrative Judge in each county

shall supervise the assignment of actions for trial in

a manner that maximizes the efficient use of available

judicial personnel, brings pending actions to trial,

and disposes of them as expeditiously as feasible.

(b)

Case Management Plan; Information Report

(1) Development and Implementation

(A) The County Administrative Judge shall

develop and, upon approval by the Chief Judge of the

Court of Appeals, implement a case management plan for

the prompt and efficient scheduling and disposition of

actions in the circuit court. The plan shall include

a system of differentiated case management in which

actions are classified according to complexity and

priority and are assigned to a scheduling category

based on that classification and, to the extent

practicable, follow any template established by the

Chief Judge of the Court of Appeals.

(B) The County Administrative Judge shall send a

copy of the plan and all amendments to it to the State

Court Administrator. The State Court Administrator

shall review the plan or amendments and transmit the

plan or amendments, together with any recommended

changes, to the Chief Judge of the Court of Appeals.

monitor the operation of the plan, develop any

necessary amendments to it, and, upon approval by the

Chief Judge of the Court of Appeals, implement the

amended plan.

. . .

(5) Virtual Jury Trials

In any jurisdiction where the County

Administrative Judge deems it appropriate, the plan

shall include procedures for the operation of virtual

jury trials. The plan shall consider each phase of a

trial and the roles of the judge, courtroom clerk,

bailiff, jury office, clerk’s office, and IT

department. The plan for conducting a virtual jury

trial shall include:

(A) criteria to evaluate and determine which

cases are appropriate for virtual jury trials;

Committee note: Examples of criteria to determine a

case’s suitability for a virtual trial include the

number of plaintiffs and defendants, the number of

parties that require translation services, and the

complexity of legal issues raised.

(B) criteria to evaluate and determine which

cases are appropriate for virtual trials;

Committee note: Examples of criteria to determine a

case’s suitability for a virtual trial include the

number of plaintiffs and defendants, the number of

parties that require translation services, and the

complexity of legal issues raised.

(D) methods to determine whether prospective

jurors have access to technology with which to

participate and the ability to participate in a

private space;

(E) alternative means, if available, to offer

prospective jurors that lack the ability to

participate virtually;

Committee note: Alternative means may include

providing each juror a technological device to use

throughout the virtual proceedings or providing a

secluded location, such as a conference room inside

the courthouse or other Remote Location pursuant to

Rule 2-801 (d), within which jurors may participate.

(F) exhibits and evidence management;

(G) technical training for bailiffs or other

designated court personnel to assist prospective

jurors with technical issues during check-in, trial,

and deliberations; and

(H) measures to provide public access to virtual

trials pursuant to Rule 2-804 (g).

Committee note: The intent of subsection (b)(5) is to

allow for the possibility of remote electronic

participation where appropriate, pursuant to the

Seventh Administrative Order Restricting Statewide

Judiciary Operations Due to the COVID-19 Emergency

issued by the Chief Judge of the Court of Appeals on

December 22, 2020, and any subsequent orders issued by

the Court.

Cross reference: See Title 2, Chapter 800 and Rule

16-309 for provisions that may be included in the case

management plan concerning the operation of remote

jury trials.

(5)(6) Consultation.

. . .

(6)(7) Information Report.

. . .

Source:

(2016).

This Rule is derived from former Rule 16-202

MARYLAND RULES OF PROCEDURE

TITLE 16 – COURT ADMINISTRATION

CHAPTER 300 – CIRCUIT COURTS – ADMINISTRATION AND CASE

MANAGEMENT

ADD new Rule 16-309, as follows:

RULE 16-309.

CASES

(a)

REMOTE ELECTRONIC PARTICIPATION IN JURY

Applicability

This Rule applies to situations in which any

significant proceeding in a case that may be tried

before a jury may or will be conducted by remote

electronic participation under Rule 2-807.

(b)

Jury Plan

The Jury Plan adopted by the court pursuant to

Code, Courts Article, Title 8, Subtitle 2 shall

require that the juror qualification form created

pursuant to Code, Courts Article, § 8-302 (1) inform a

prospective juror that one or more proceedings in a

case in which he or she may be called to sit as a

juror may be conducted by remote electronic

participation; (2) explain in sufficient detail and

with clarity what that means and what that would

require of a prospective juror; (3) inquire whether

the prospective juror has the kind of equipment and

the knowledge and ability to operate that equipment

necessary to be able to participate by means of remote

electronic participation; and (4) inform the

prospective juror that, if the answer to that question

is “no” and if the prospective juror is otherwise

found qualified and summoned to act as a juror, he or

she may be able to participate from the courthouse

with lawful and appropriate assistance from court

personnel.

Committee note: Code, Courts Article, § 8-212 permits

a jury plan to state any question to be included in

the juror qualification form consistent with the

interest of sound administration of justice and not

inconsistent with the Code. It is critical, even when

physical appearance at a proceeding is not feasible,

that virtual jury pools represent a fair cross-section

of the qualified citizenry. Remote electronic

participation may be impossible or inordinately

difficult for some people. Jury plans must take

account of that and, when possible, make suitable

provision for an alternative.

(c)

Trial

(1) Generally

The county administrative judge, with the

assistance of the court administrator, the clerk of

the court, the Administrative Office of the Courts,

and such other persons or entities that the county

administrative judge finds necessary or useful, shall

make reasonable efforts to make courtrooms, jury

rooms, and other facilities safely available for

jurors, witnesses, and court personnel to use, to

avoid the need for individual remote electronic

participation in the trial itself or to reduce that

need to the extent practicable.

(2) If Remote Electronic Participation at Trial is

Required

If remote electronic participation at trial is

required, the county administrative judge shall:

(A) designate and authorize one or more judicial

employees to assist prospective jurors who require

assistance in participating in juror selection

procedures by remote electronic participation;

Committee note: Those employees should be instructed

that their role is strictly limited to assisting the

prospective juror in responding to questions and that

they are not to discuss what the juror’s responses

should be.

(B) assure that all members of the jury,

including alternates, witnesses, and court personnel

are able to participate by remote electronic

participation; and

with the judge when necessary and appropriate.

MARYLAND RULES OF PROCEDURE

TITLE 16 – COURT ADMINISTRATION

CHAPTER 800 – MISCELLANEOUS COURT ADMINISTRATION

MATTERS

AMEND Rule 16-803 by adding a reference to

Emergency Orders in section (b), as follows:

RULE 16-803.

CONTINUITY OF OPERATIONS PLAN

. . .

(b) Conformance to AOC Guidelines and Emergency

Orders

The plan shall conform to guidelines

established by the Administrative Office of the Courts

and is subject to emergency orders issued by the Chief

Judge of the Court of Appeals pursuant to Rules 161001 through 16-1003. The plan and any amendments to

it shall be submitted to the State Court

Administrator.

Committee note: Jury plans are governed in part by

Code, Courts Article, Title 8, Subtitle 2, but the

Court of Appeals may adopt Rules to govern the

provisions and implementation of those plans. See

Code, Courts Article, § 8-202. Jury plans proposed by

the circuit courts are subject to approval by the

Court of Appeals. See Code, Courts Article, § 8-203.

. . .

MARYLAND RULES OF PROCEDURE

TITLE 2 – CIVIL PROCEDURE – CIRCUIT COURT

CHAPTER 500 – TRIAL

AMEND Rule 2-504 by amending subsection (b)(2)(I)

to reference remote electronic participation and by

making stylistic changes, as follows:

RULE 2-504.

SCHEDULING ORDER

. . .

(b)

Contents of Scheduling Order

. . .

(2) Permitted

A scheduling order may also may contain:

. . .

(H) a process by which the parties may assert

claims of privilege or of protection after production;

and

(I) any other matter pertinent to the management

of the action. procedures and requirements the court

finds necessary when any proceedings in the action

will be conducted by remote electronic participation

pursuant to Title 2, Chapter 800 of these Rules; and

(J) any other matter pertinent to the management

of the action.

. . .

MARYLAND RULES OF PROCEDURE

TITLE 2 – CIVIL PROCEDURE – CIRCUIT COURT

CHAPTER 500 – TRIAL

AMEND Rule 2-504.1 by amending section (a) to

reference remote electronic proceedings, by adding new

subsection (a)(3) regarding proceedings conducted by

remote electronic means, and by making stylistic

changes, as follows:

RULE 2-504.1.

(a)

SCHEDULING CONFERENCE

When Required

In any of the following circumstances, the

court shall issue an order requiring the parties to

attend a scheduling conference, in person or by remote

electronic participation pursuant to the Rules in

Title 2, Chapter 800 of these Rules:

(1) in an action placed or likely to be placed in

a scheduling category for which the case management

plan adopted pursuant to Rule 16-302 (b) requires a

scheduling conference;

(2) in an action in which an objection to

computer-generated evidence is filed under Rule 2504.3 (d); or

(3) in an action in which jury selection or any

other significant proceeding will be conducted by

remote electronic participation; or

(3)(4) in an action, in which a party requests a

scheduling conference and represents that, despite a

good faith effort, the parties have been unable to

reach an agreement (i)(A) on a plan for the scheduling

and completion of discovery, (ii)(B) on the proposal

of any party to pursue an available and appropriate

form of alternative dispute resolution, or (iii)(C) on

any other matter eligible for inclusion in a

scheduling order under Rule 2-504.

. . .

Judge Davey commented that these Rules governing virtual

jury trials are not the start of a slippery slope.

The proposed

amendments to Rule 16-309 direct county administrative judges to

do everything reasonable to make courthouses safe for live jury

trials.

Judge Davey pointed out that a Committee note in Rule

2-807 reminds judges that virtual jury trials are a last resort

and these Rules are not an attempt to move away from the timehonored process of public trials and live courtrooms.

Judge Davey added that the Rules in Title 2, Chapter 800

already govern remote electronic participation.

The Chief Judge

has authorized courts to try as many cases as possible using

virtual opportunities.

The most recent Administrative Order

provides that courts will attempt to resume in-person jury

trials, but also indicates that virtual formats may be used when

there is the opportunity.

Judge Davey explained that the Trial

Subcommittee built on these precedents and specified that civil

jury trials may be conducted virtually when there is an

appropriate case.

He pointed out that, if these Rules are

adopted by the Court of Appeals, each county administrative

judge will need to amend the county’s case management and jury

plans to indicate how virtual jury trials will be conducted in

that county.

Mr. Baxter introduced himself as a civil trial attorney in

Baltimore City.

He has tried jury trials in jurisdictions

throughout the state.

Although a former President of the

Maryland State Bar Association, Mr. Baxter indicated that his

comments today are his own.

Mr. Baxter suggested that instead

of stating in Rule 2-807 (b) that a virtual jury trial may be

held when the parties agree or when emergency orders are issued,

the Rule should state that the parties’ agreement is always

required.

Live jury trials are infinitely better than virtual

jury trials because the crucial face-to-face dynamic is lost in

virtual trials.

Mr. Baxter acknowledged the backlog of cases,

but suggested that requiring virtual trials absent full party

consent is not a good answer.

He added that there are concerns

about the efficacy and fairness of virtual trials.

Issues about

the jury pool may arise, for example, in Baltimore City where

many citizens only access the internet by phone.

Mr. Baxter proposed two possible alternatives instead of

proceeding with virtual jury trials.

First, the Judiciary may

continue the current plan of reopening for socially distanced

jury trials on April 26. He acknowledged that this alternative

requires some participants to submit to jury trials and face the

risks of gathering with strangers in one room before vaccines

have been made available to them.

President Biden said that

vaccines should be widely available by the Fourth of July.

Mr.

Baxter proposed, as a second alternative, that the start date

for in-person trials can be moved back.

He acknowledged that

these alternatives may not be within the authority of the

Committee.

Judge Davey directed the Committee’s attention to Rule 2801.

He explained that additional definitions have been added

to clarify the definition of what constitutes a virtual jury

trial.

These definitions create the building blocks to develop

a uniform definition.

Judge Davey next addressed Rule 2-807.

He noted that

section (b) sets forth when the Rule applies and initially

included three circumstances.

The Trial Subcommittee narrowed

section (b) to only two options.

The third option, letting the

county administrative judges make independent decisions, was

considered too broad.

Mr. Wells moved to amend Rule 2-807 (b) by changing “or” to

“and,” as suggested by Mr. Baxter.

This amendment would also

necessitate the deletion of the second sentence about objections

to a virtual jury trial.

He commented that the amendment

prevents a slippery slope and emphasized the intangibles of a

jury trial.

The Chair inquired whether the amendment aims to limit the

ability to hold a virtual jury trial to circumstances where

there is consent by the parties.

Mr. Wells responded that the

amendment limits virtual jury trials to instances where there is

consent by the parties and the county administrative judge.

The

Chair further inquired how the amendment would address the

language about virtual jury trials when an emergency is declared

by the Governor or the Chief Judge.

Mr. Wells responded that he

did not believe any Orders from the Governor or the Chief Judge

directed remote virtual jury trials, but just encouraged the

courts to consider remote proceedings to the extent practicable.

The Chair noted that the Rule states that remote virtual jury

trials would not be allowed except when an emergency is declared

by the Governor and the Chief Judge.

Mr. Wells agreed that

language is consistent with the Committee note and should remain

in the Rule.

Judge Davey commented that Mr. Wells’s proposal means that

no virtual jury trials can be held without the consent of the

parties.

There is no need for the Rule if it will be limited to

that extent.

Judge Davey indicated that his courthouse has

about 4,500 track 2 civil trials waiting to be heard.

Those

cases have had opportunities all year to use other mechanisms,

such as mediations or bench trials.

He noted that the Rule is

needed for the court to address a backlog that continues to

grow, including cases that involve one- or two-day trials with

only two parties and minimal witnesses.

Judge Davey explained

that criminal cases will get priority when in-person trials are

permitted.

Pursuant to safety procedures, every criminal trial

at his courthouse will utilize three courtrooms, leaving limited

space for civil trials.

Mr. Wells responded that the failure to use remote jury

trials earlier expresses a preference for the constitutional

right to a jury trial.

The backlog of cases forces attorneys

and parties to face reality: either wait to get a jury trial or

resolve the case.

Mr. Wells noted that the Rule is not limited

to the kinds of cases described by Judge Davey.

The Rule

removes the consideration of the parties and the attorneys in

determining whether a virtual jury trial should be held.

Judge Bryant expressed concern that a party may not have

the required technology to appear.

She pointed to section

(c)(2) of Rule 2-807, suggesting that the section may be amended

to include those who do not have access to appropriate

technology.

The Chair noted that the subsection was intended to

mean that those without access to technology should go to the

courthouse for assistance.

worded more clearly.

He noted that the section can be

There is a concern about ensuring that

persons can appear at trial, including pursuant to a subpoena,

if the appearance occurs electronically.

Mr. Wells stated that trial attorneys he has spoken to are

worried about two things.

The first concern is holding a jury

trial before there is reasonable certainty that it is safe, such

as before vaccinations are available.

The second concern is

dealing with technical issues and losing the essence of a jury

trial by participating in a remote proceeding.

Although there

is frustration about waiting for a trial, Mr. Wells has not

heard that anyone would prefer a virtual jury trial instead of

waiting a year for an in-person jury trial.

The Chair asked whether there has been consideration of the

impact on the pool of potential jurors if vaccinations are

required for individuals to be a part of the jury.

that some communities may refuse vaccination.

He noted

Mr. Wells

responded that the concern exists for any vaccine.

There will

be a point where there are reasonable assurances that most

individuals entering the courthouse have the vaccine available

to them.

He added that there will not be a point where those

who refuse the vaccine are eliminated from the jury pool.

Mr. Marcus seconded Mr. Wells’s proposed amendment.

Ms.

McBride agreed with the proposed amendment, stating that it is

difficult to imagine the same results with virtual trials.

She

commented that the trials lose too much when held virtually and

she would hate to be forced into trying a case virtually.

balance is needed.

Ms. McBride acknowledged the backlog of

cases, but noted that this issue may not need to be addressed

because vaccines are becoming available.

Judge Bryant suggested including a mechanism in the Rule

allowing a court to defer a case on an individual basis.

Judge

Davey stated that such a mechanism is in the Rule because

objections for any reason may be raised at the scheduling

conference.

Mr. Laws asked whether certain types of proceedings are

more amenable to virtual jury trials.

about the proposed Rules.

He raised some concerns

For example, a member of the virtual

jury may be gaming on a different device and not paying

attention to the trial.

He added that the dynamics affecting

credibility determinations are impacted.

Judge Davey pointed to

Rule 16-302 requiring that the criteria to evaluate and

determine appropriate cases for virtual jury trials be put in

writing.

He added that Prince George’s County has already

created a workgroup in anticipation of virtual jury trials.

Most cases being considered are motor torts, contract disputes,

and slip and fall cases.

More complex cases would not be tried

virtually.

Mr. Wells inquired whether the Trial Subcommittee

considered drafting a Rule limited to cases as described in the

differentiated case management (“DCM”) plan.

Judge Davey

responded that the Rule applies to all cases, but the county

administrative judge is required to identify cases that can be

considered for virtual jury trials in the DCM plan.

Mr. Wells

noted that, conceivably, a virtual jury trial can be required

for a two-week jury trial with multiple witnesses, including

out-of-state experts.

Judge Davey commented that it would

depend on whether the DCM plan approved by the Administrative

Office of the Courts permits a virtual jury trial in that case.

Mr. Wells questioned whether Rule 2-807 should be considered in

conjunction with the proposed changes to DCM plans.

Judge Davey

noted that the DCM plans are completed by individual

jurisdictions.

He added that the Rule should be more specific

and precise about what to include or exclude in the plans

concerning virtual jury trials.

Judge Bryant asked about the timing.

She stated that

attorneys would want to know the court’s action as early as

possible.

Early notice should alleviate some of the anxiety

associated with virtual jury trials.

Trial attorneys would like

to be informed well before a trial date if an in-person jury

trial is not permitted.

Jurisdictions handle matters

differently, and the scheduling conference may occur at various

times at different courthouses.

The Chair asked whether the DCM plan should categorically

limit the cases considered for virtual jury trials.

If a case

falls within a specific track, a prompt scheduling conference

should be held to determine if the case is a good candidate for

a virtual jury trial.

different counties.

He acknowledged that the tracks vary in

Judge Davey responded that specific

language can be added to subsection (d)(1) of Rule 2-807

clarifying the timing of a scheduling conference.

may be set as soon as an answer is filed.

A conference

Judge Bryant noted

that there may not be the capacity to conduct scheduling

conferences immediately in jurisdictions with heavy caseloads.

Instead, scheduling orders are issued without a conference in

some cases, and parties move to modify the orders.

Judge Davey

pointed out that holding an early scheduling conference would

apply only in a case that the court believes is a candidate for

a virtual jury trial.

The Chair questioned whether potential qualifying cases

should be categorized with quick scheduling conferences held in

those cases.

Judge Davey responded that a category should be

created for likely candidates for virtual jury trials, such as

judicial review of Worker’s Compensation Commission cases.

The

Chair commented that those cases typically involve only a

plaintiff, a defendant, and two doctors.

Mr. Marcus recognized that there should be some mechanism

to deal with the backlog.

He commented that he is in favor of

determining certain case types that can be considered for this

process.

In the District Court, a statute states what cases are

within the exclusive jurisdiction of the District Court.

category for virtual jury trial cases should be similarly

defined.

If the case types considered for virtual jury trials

involve an amount in controversy of less than a certain amount,

such as $30,000, there would be no concern about determining

specific case types.

This approach would require an accurately

pled addendum clause.

The cases that may be candidates for

virtual jury trials would be easily identifiable.

Judge Davey

responded that complaints simply plead above that statutory

number to qualify for circuit court.

An exact amount in

controversy is not specified.

Mr. Wells acknowledged the problem of backlogs and

suggested redrafting the Rule to delineate the kinds of cases

contemplated.

For example, the case information sheet may have

a box for individuals to check indicating the qualifications for

a virtual jury trial.

suggestion.

Mr. Brown agreed with Mr. Wells’s

He added that the civil cover sheet can list case

types to inform the court and the parties what cases can be

mandated to proceed as virtual jury trials.

Judge Davey

responded that virtual jury trial may be limited to tracks 1 and

2 at his courthouse, but noted that he does not know the

categories or tracks used by other courts.

Ms. Harris commented

that such a notice may be difficult to create due to the

different case tracks used in different courts.

Judge Davey asked whether there is a definition for complex

litigation.

Mr. Wells responded that it depends what the

attorney checks off on the case information sheet.

He added

that most jurisdictions require an anticipated length of the

trial to be provided, and that time can be used to determine

applicability of the Rules.

Ms. Day commented that filers would

simply change the time estimate of the trial.

If a box needs to

be checked for virtual jury trials, no one is going to check it.

Mr. Wells responded that most attorneys prefer an in-person

trial.

He noted that the current version of the Rule has no

assurances that other judges or courts will limit the types of

cases that can be mandated to have virtual jury trials.

The Chair acknowledged that there is a suggestion to hold

virtual jury trials only when both parties consent, but the

court has a role in the decision as well.

He raised a

comparison to the medical field, noting that doctors used to

schedule surgeries until the hospitals began creating the

schedules.

The doctors were not running the hospitals.

The

court has an interest in not allowing these cases to create a

backlog because they will have to be addressed at some point, as

well as all the new cases.

The Chair inquired what compromise

would honor both interests.

Mr. Wells said that a compromise would be to better

differentiate in the Rule which cases can be considered for

virtual jury trials.

He added that he will always take the

position that the parties’ consent should be needed, but

creating a list of eligible cases can be a compromise.

The

Chair expressed concern that the Rule cannot delineate by case

tracks and suggested that county administrative judges should

determine applicable case types for their own counties.

The

parties may then argue up front why their case should not be

considered for a virtual jury trial.

It may be more work for

the court to hold these scheduling conferences, but they are

already permitted.

Judge Davey explained that the proposed Rules contemplate

that the Administrative Judge in each jurisdiction will either

develop criteria or state which trials could be held virtually.

He noted that he is trying to work from the court’s current

management system in giving the Administrative Judge some

flexibility.

The plan would still need to be approved as

provided in Rule 16-302 (b).

Judge Davey added that the list of

case types should either indicate which cases may be considered,

or which cases may not be considered for virtual jury trials.

Mr. Wells proposed amending section (a) to state that the

Rule applies to those cases described in the county DCM plan as

eligible for consideration for virtual jury trials.

agreed with the proposed change.

Judge Davey

The Reporter clarified that

the change to section (a) is to reference cases described in the

county’s DCM plan as cases that are eligible for virtual jury

trials.

Ms. Harris noted that there will not be uniformity

because every circuit court may choose different cases.

The

Chair noted that there has never been uniformity with the

different case tracks.

Some judges wanted tracks to be based on

the length of trial, while others wanted them to be based on how

much money was involved.

Ms. Harris noted that case tracks are

still different throughout the State.

The Chair noted that the

lack of uniformity in this instance may be acceptable because

the facilities of each court will be different and may require

different actions to make them safe.

Virtual jury trials may

need to be more limited in one county than another.

Judge Davey

noted that a jurisdiction can decide not to hold virtual jury

trials.

The Chair suggested letting county administrative

judges make the first call.

Mr. Wells said that he would interpret this Rule, with the

proposed amendment to section (a), as permitting virtual jury

trials when the parties consent or when there is a declared

state of emergency.

Absent a declared state of emergency, the

court would not have the authority to order a virtual jury trial

without the parties’ consent.

Judge Davey agreed with Mr.

Wells’s interpretation.

Judge Davey noted that administrative orders recently have

been issued by the Chief Judge regarding the reopening of the

courts in phases.

An administrative order will need to

specifically indicate whether virtual jury trials are authorized

under the circumstances.

Mr. Wells clarified that when the

emergency is over, courts will not have unilateral authority to

order virtual jury trials.

The Chair noted that the category of

cases appropriate for virtual jury trials as determined by the

county administrative judge will only be relevant in case of an

emergency.

Judge Davey next addressed the section of Rule 2-807

concerning subpoenas.

The Trial Subcommittee faced several

issues related to the section concerning subpoenas.

Mr.

Armstrong and Ms. Lindsey helped draft the section to try to

satisfy both the court and the litigators.

The requestor must

indicate in the subpoena that the appearance is virtual, and an

e-mail address must be provided to the clerk so that login

information may be sent to the witness.

If the witness is

unable to appear virtually, there is a method to notify the

requestor and a process for the witness to come to the

courthouse to participate and testify.

Judge Davey explained the scheduling conference in

subsection (d)(1) gives attorneys the right to argue that the

case is not appropriate for a virtual jury trial.

All parties

will be aware at that time that the case is scheduled for a

virtual jury trial.

Judge Davey pointed out expanded subsection (d)(2)

concerning pretrial conferences.

Pretrial conferences for

virtual jury trials should resolve as many issues as possible so

that there are limited bench conferences during the virtual

proceedings and the exhibits can be pre-filed.

He noted that

the Rule has a mechanism for challenging exhibits.

The pretrial

conference also involves development of a trial schedule with

the understanding that people can be kept in a virtual

environment for only so many hours a day and breaks will be

needed.

Judge Bryant questioned how to get voir dire into the

jurors’ hands and how to handle sensitive information, such as

the name of a rape victim.

She suggested that voir dire be

discussed in the Rule just as jury instructions are addressed.

Judge Davey said that, in the virtual jury selection process,

the judge will ask the questions and identify jurors with

positive responses.

The potential juror would then be moved

into a separate breakout room, similar to when the juror and the

parties are at the bench during voir dire.

Potentially

sensitive information would only be addressed in this separate

breakout room.

Judge Bryant noted that, in Baltimore City, a

written questionnaire is circulated to jurors in advance.

She

expressed concern about the written portion of voir dire, not

the questioning of individual jurors.

Judge Davey added that

parties can formulate a case-specific voir dire under the Rule.

The first questionnaire typically deals with the statutory

requirements to be a juror, followed by a supplemental

questionnaire determining the potential juror’s ability to serve

virtually.

A case-specific questionnaire is then permitted.

Judge Davey noted that jurors are asked to complete

questionnaires online before they become part of the jury pool.

Judge Bryant commented that it does not appear that there will

be a universal process.

Judge Davey presented additional sections of Rule 2-807.

The judge will need to caution potential jurors as to behavior,

including that the jurors should not be on other electronic

devices during the trial.

The Rule requires a specific order

from the pretrial conference to memorialize the agreed-upon

procedures.

Judge Davey noted that subsection (e)(2) addresses

jury instructions.

Jury instructions and exhibits must be

collected, categorized, and put into a shared drive to permit

the jury to have access to the instructions and the exhibits

during deliberation.

Judge Davey noted that once deliberations

begin, the jury will be moved to a separate breakout room with

restricted access.

The Rule requires that the jury receive

explicit instructions on how to communicate with the court when

there are questions and when a verdict is reached.

Judge Davey

pointed out that there is no recording, downloading, or

transmitting of anything as it relates to the trial.

The court

will have to rely on the jury’s honesty to a great extent.

Judge Davey next addressed Rule 16-302, noting that the

Rule requires that DCM plans be modified to include a section on

virtual jury trials.

He reviewed the information required in

the section about virtual jury trials and noted that courts will

need to have alternative processes available for those unable to

participate virtually.

The Chair asked whether the list of cases eligible for

virtual jury trials should be included in Rule 16-302 or Rule 2807.

Judge Davey responded that he prefers the information up

front in Rule 2-807 to address the issue right away.

Judge Davey explained that the training requirements

included in Rule 16-302 (b)(5) will require tremendous effort

between court officers and the Administrative Office of the

Courts.

Fundamental changes will be needed to the way court

employees have done business in the past.

On a local level, a

lot of work still needs to be done to be able to successfully

conduct virtual jury trials.

The Chair noted that Judge Davey

was planning to conduct mock trials as training exercises and

asked whether the training should be more uniform throughout

jurisdictions.

Ms. Harris responded that every court conducts

virtual hearings a little differently, including the District

Court.

Judge Davey noted that some jurisdictions have their own

information technology (“IT”) systems.

Ms. Harris noted that

there are some other IT people in large courts, but everyone is

trained by the Judiciary.

She noted that the same trainings on

virtual hearings have been held repeatedly.

a lot of people will need training.

She commented that

Judge Davey noted that

contested family hearings now have been held virtually for six

or seven months, and cases are getting resolved.

Although those

cases do not involve juries, witnesses and exhibits are handled

virtually.

Judge Davey noted that Rule 16-309 requires amendments to

jury plans.

He stated that there will need to be a buy-in by

the public that this is an alternate way to serve jury duty.

This is a mechanism where jurors will not need to come out in

public.

He added that the Rules require an alternate mechanism

for those unable to appear virtually.

Judge Davey explained that Rule 16-309 (c)(1) provides that

the county administrative judge must make reasonable efforts to

modify courtrooms and the courthouse to make jury trials as safe

as possible.

Rule 16-803 addresses requirements of the

continuity of operations plans.

Proposed changes to Rule 2-504

ensure that new Rules are in compliance with already existing

Rules regarding scheduling conferences.

The Chair noted that the proposed new Rules and amendments

are Subcommittee recommendations and do not require a motion for

approval.

Mr. Wells withdrew his motion to amend Rule 2-807 (b)

based on the discussed changes to wording in Rule 2-807 (a).

Mr. Wells moved to amend the first sentence of Rule 2-807

(a).

Judge Davey responded that the amendment was agreed to.

The Reporter clarified that there was a consensus to add to

section (a) the concept that the ability to hold a virtual jury

trial applies only to cases in a category of cases that are

eligible for virtual jury trials as set forth in the county’s

DCM plan.

There being no further motion to amend or reject the

proposed Rules, they were approved as amended.

There being no further business before the Committee, the

Chair adjourned the meeting.

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