# COURT OF APPEALS STANDING COMMITTEE

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/court_rules%3Amd%3A28f6c3a045dcf2ef

## Record

- **Collection:** Court rules
- **Document type:** Court rule

## Text

COURT OF APPEALS STANDING COMMITTEE
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
1

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.
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,
2

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
3

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.
4

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
5

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.
6

(B) The State’s Attorney may file an answer
within 30 days after service of the motion or
petition.
(C) 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 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
7

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
(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.
(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.

8

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
9

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
10

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.
11

(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
12

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
13

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

14

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.
15

(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
16

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.
17

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.

A

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
18

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
19

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

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

3.
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.
20

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
21

and before the person has an opportunity to rehabilitate, or
require legal error to give the court authority to act.

If

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,
22

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
23

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
24

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
25

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.
26

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.
27

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.

He

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
28

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.
29

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
30

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.
31

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.
32

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.
34

Mr. Marcus directed the Committee to the materials.

He

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.
35

The Rule is currently before the Committee with a proposal from
the Subcommittee.
Mr. Zollicoffer agreed with the Chair’s opposition.

He

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.

No

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
36

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.
37

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.

He

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
38

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
39

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
40

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
41

He

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
42

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.

43

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
44

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.

He

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.
45

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

46

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.
47

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

48

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
49

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.
50

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.
51

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
52

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
53

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
54

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
55

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
56

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
57

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.
(C) Considerations at Pretrial Conference
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);

58

(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.
59

(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.
(C) Additional Jurors
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.
60

(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.
(C) After all evidence has been presented, and
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.
61

(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
62

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
63

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.
(C) The County Administrative Judge shall
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.
64

(C) procedures for summoning jurors;
(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.
65

. . .
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
66

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;

67

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
(C) provide a method for jurors to communicate
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
68

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.
69

. . .
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
70

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
71

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
72

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.

73

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
74

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.
75

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

A

76

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
77

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
78

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
79

within the exclusive jurisdiction of the District Court.

A

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.
80

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
81

virtual jury trials.

He added that he will always take the

positio

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/court_rules%3Amd%3A28f6c3a045dcf2ef. Public record. Not legal advice.