STANDING COMMITTEE ON RULES OF PRACTICE AND PROCEDURE
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STANDING COMMITTEE ON RULES OF PRACTICE AND PROCEDURE
NOTICE OF PROPOSED RULES CHANGES
The Rules Committee has submitted its One Hundred SixtySecond Report to the Court of Appeals, transmitting thereby
proposed new Title 4, Chapter 700 (Post Conviction DNA Testing),
Rules 2-507.1 and 16-778, and Appendix: Form Interrogatories,
Forms 11 and 12; and proposed amendments to Rules 1-332, 1-402,
2-504.3, 2-508, 2-516, 4-214, 4-216, 4-217, 4-252 (c) and (h)(1),
4-327, 4-314, 4-322, 4-331, 4-342, 4-343 (Alternatives 1 and 2),
4-346, 4-347, 4-351, 4-406, 4-642, 7-108, 7-114, 8-111, 8-205,
8-207, 8-302, 8-306, 8-411, 8-412, 8-413, 8-501, 8-502, 8-503,
8-504, 8-602, 9-210, 15-207, 15-303, 15-303 (b), 15-309, 15-1202,
16-101, 16-404, 16-406, 16-608, 16-751, 16-760, 16-819, 16-903,
16-1006 (d)(3) and (d)(4); Appendix: Form Interrogatories, Forms
2, 7, 8; and Rule 19 of the Rules Governing Admission to the Bar
of Maryland.
The Committee’s One Hundred Sixty-Second Report and the
proposed new rules, forms, and amendments are set forth below.
Interested persons are asked to consider the Committee’s
Report and proposed rules changes and forward on or before
August 17, 2009 any written comments they may wish to make to:
Sandra F. Haines, Esq.
Reporter, Rules Committee
2011-D Commerce Park Drive
Annapolis, Maryland
21401
BESSIE M. DECKER
Clerk
Court of Appeals of Maryland
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July 1, 2009
The Honorable Robert M. Bell,
Chief Judge
The Honorable Glenn T. Harrell, Jr.
The Honorable Lynne A. Battaglia
The Honorable Clayton Greene, Jr.
The Honorable Joseph F. Murphy, Jr.
The Honorable Sally D. Adkins
The Honorable Mary Ellen Barbera,
Judges
The Court of Appeals of Maryland
Robert C. Murphy Courts of Appeal Building
Annapolis, Maryland 21401
Your Honors:
The Rules Committee submits this, its One Hundred SixtySecond Report, and recommends that the Court adopt the new Rules
and amendments to existing Rules transmitted with this Report.
This Report is a comprehensive one, comprising fifteen categories
of proposed changes.
Category One consists of two alternative proposals to
implement Chapter 186 of the 2009 Md. Laws. That Act, which was
initially intended to repeal the death penalty in Maryland,
instead retained that penalty but added new conditions to its
imposition, namely (1) that the State has presented to the court
or jury “(i) biological evidence or DNA evidence that links the
defendant to the act of murder; (ii) a video taped, voluntary
interrogation and confession of the defendant to the murder, or
(iii) a video recording that conclusively links the defendant to
the murder,” and (2) that the State has not relied “solely on
evidence provided by eye witnesses.” That will likely require
four additional findings by the sentencing authority.
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As the Court is aware, the sentencing authority in a death
penalty case must make several other specific findings in order
to impose the death sentence. It must find that the defendant
was either a principal in the first degree to the murder or a
principal in the second degree under the circumstances set forth
in Code, Criminal Law Article, §2-202 (a)(2)(ii). To the extent
the issues are presented, it must find that the defendant was 18
years old or older when the murder was committed and that the
defendant was not mentally retarded at that time, and it must
find that at least one of the statutory aggravating factors
listed in the State’s notice of intent to seek the death sentence
exists and outweighs any mitigating factors that may be found.
The Court can implement Chapter 186 by simply adding the new
statutory conditions to the verdict form set forth in Rule 4-343.
Alternative No. 1 accomplishes that result by amending Rule 4-343
to add the four new issues, as preliminary ones for the
sentencing authority to resolve.
In considering that approach, several members of the Rules
Committee, and a number of consultants advising the Committee,
expressed concern that the task facing the sentencing authority,
particularly a jury, was already complex enough, and that adding
four more questions to the existing verdict form, especially in
light of some ambiguities inherent in each of them, might make
its task significantly more difficult. The Committee has
therefore drafted and presents to the Court for its
consideration, as Alternative No. 2, a different approach,
intended to make the sentencing process more focused and more
efficient. It would rewrite, rather than amend, Rule 4-343 to
bifurcate the sentencing proceeding.
Phase One would require the sentencing authority to consider
only six fact-based preconditions to imposition of the death
penalty – principalship, age, and the four new factors. The
evidence, instructions, and argument would be limited to those
issues and would not get into retardation, aggravating or
mitigating factors, or any weighing process. If the State does
not prevail on those Phase One issues, there would be no need for
the sentencing authority to do anything more but enter a sentence
of life imprisonment and determine whether it should be without
parole. If the State does prevail on the Phase One issues, or
such of them as would qualify the defendant for the death
penalty, the findings would be entered in the record as special
verdicts and the sentencing authority would proceed to Phase Two.
In that proceeding, it would resolve any issue of whether the
defendant was mentally retarded, determine the existence of and
weigh the aggravating and mitigating factors, and, through that
process, decide whether the sentence should be death, life
imprisonment without parole, or life imprisonment with the
possibility of parole. The Rules Committee has placed the issue
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of retardation in Phase Two, in part because the defendant has
the burden of proof on that issue, but more because much of the
evidence and argument regarding the issue could relate as well to
mitigating factors and would likely be presented in Phase Two in
any event.
The Rules Committee presents these two alternatives without
recommendation as between them, as a policy issue for the Court
to resolve.
Category Two consists of proposed new Rules 4-701 through
4-711, intended to provide a procedure for the post-conviction
DNA testing of scientific identification evidence possessed by
the State, as authorized by Code, Criminal Procedure Article,
§8-201.
Category Three consists of the addition of a new section (c)
to Rule 4-214, to define when joint representation exists in a
criminal case and to specify certain duties on the part of the
court when presented with that situation. The proposed Rule
generally tracks Fed. R. Crim. P. 44 but focuses on whether there
is an “impermissible” conflict and requires the court to advise
the defendants of their right to separate counsel and advise
counsel to consider potential areas of conflict rather than to
make specific inquiries of the defendants or counsel.
Category Four proposes the addition of a new section (e) to
Rule 4-327, to require that an objection to inconsistent verdicts
in a criminal case be made before the jury is discharged, in
order to allow the trial court an opportunity to remedy the
error. This follows a recommendation made in a Concurring
Opinion in Price v. State, 407 Md. 10, 40-42 (2008).
Category Five proposes an amendment to Rule 4-217 (d) to
require the clerks of the Circuit and District Courts to inform
the Insurance Commissioner of the names of surety insurers who
fail to resolve bond forfeitures, as required by a 2008 amendment
to Code, Insurance Article, §21-103, and to Rule 4-252 (h)(1), to
resolve a possible conflict between that Rule and Code, Courts
Article, §12-302.
Category Six proposes new cross references in Rules 4-216,
4-252 (c), 4-314, 4-331, 4-346, 4-347, 4-351, 4-406, 8-413, 15303, and 15-309 to statutes relating to victims’ rights.
Category Seven includes proposed amendments to Rules 4-322,
2-504.3, 2-516, 16-404, 8-411, 16-406, 4-342, 4-642, 7-108,
7-114, 8-306, 8-412, 8-602, and 16-101, all dealing with court
reporters. Most of the changes merely substitute the term “court
reporter” for “stenographer.” The amendments to Rules 4-322,
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2-516, and 16-404 are of greater significance. The first two,
which are identical, require a party who offers or uses an audio,
audiovisual, or visual recording at a hearing or trial to ensure
that (1) the recording is marked for identification and made part
of the record and that a copy is given to the court, and (2) if
only a part of the recording is offered or used, a description
identifying the part offered or used is made part of the record.
Comparable requirements are proposed when the party offers or
uses a transcript of a recording. The proposed amendment to Rule
16-404 is to make clear that the court reporter need not record
an audio or audiovisual recording offered or used at a hearing or
trial.
Categories Eight, Nine, and Ten deal with attorneys.
Category Eight consists of proposed new Rule 16-778 and
amendments to Rule 16-751, which implement a 2007 amendment to
Code, Family Law Article §10-119.3. That statute includes the
Court of Appeals as a licensing authority that may sanction a
lawyer who is in arrears of child support. The proposed Rule
provides a procedure for sending a referral by the Child Support
Enforcement Administration to Bar Counsel, sets forth the duties
of Bar Counsel, the possible action by the Court, the presumptive
effect of a referral, and the termination of any suspension
imposed by the Court.
Category Nine proposes amendments to Rule 16-608 to provide
for the decertification of lawyers who fail to file an annual
report providing information on IOLTA accounts, similar to the
provision for decertifying lawyers who fail to file pro bono
reports. The Court requested the Rules Committee to consider and
draft such a proposal. Conforming amendments are proposed to
Rules 16-903 and 16-1006 (d)(4).
Category Ten proposes several sets of amendments to Bar
Admission Rule 19, all dealing with the confidentiality and
permissible disclosures of information collected by the Board of
Law Examiners. Proposed amendments to sections (a) and (b)
provide for the confidentiality of information collected by the
Accommodation Review Committee and its panels. Amendments to
subsection (c)(4) would permit disclosures to Bar Admission and
lawyer and judicial disciplinary agencies in other States.
Amendments to subsection (c)(7) revise the kind of information
that may be sent to the National Conference of Bar Examiners.
Amendments to subsections (c)(8) and (c)(9) would permit
disclosures of certain information to members of character
committees and to the Child Support Enforcement Administration.
Finally, amendments to section (d) would clarify the extent of
confidentiality when an application reaches the Court of Appeals.
A conforming amendment is also proposed to Rule 16-1006 (d)(3).
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Category Eleven consists of proposed new Rule 2-507.1 and a
proposed cross reference in Rule 2-508. Rule 2-507.1 would
require the court to stay an action upon a joint motion by all
parties. The cross reference in Rule 2-508 is to the Chief
Judge’s Administrative Order for Continuances for Conflicting
Case Assignments or Legislative Duties.
Category Twelve consists of amendments to Rule 1-402, to
call attention that a court may accept as security for a
supersedeas bond assets other than the commitment of a surety.
Category Thirteen consists of largely housekeeping
amendments to Rules 8-111, 8-205, 8-207, 8-302, 8-501, 8-502,
8-503, and 8-504.
Category Fourteen consists of additions to Form
Interrogatories 2, 7, and 8, and new Form Interrogatories 11 and
12. New Forms 11 and 12 contain form interrogatories for use in
medical malpractice cases.
Category Fifteen consists of miscellaneous amendments to
Rules 9-210, 15-207, 15-303, 15-1202, 16-760, 16-819, and 1-332.
For the further guidance of the Court and the public,
following each proposed amendment to each Rule is a Reporter’s
Note describing in further detail the reasons for the proposal
and any changes that would be effected in current law or
practice. We caution that the Reporter’s Notes are not part of
the Rules, have not been debated or approved by the Committee,
and are not to be regarded as any kind of official comment or
interpretation. They are included solely to assist the Court in
understanding some of the reasons for the proposed changes.
Respectfully submitted,
Alan M. Wilner
Chair
Linda M. Schuett
Vice Chair
AMW/LMS:cdc
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ALTERNATIVE #1
[Amend current Rule 4-343, without bifurcation of
sentencing proceeding]
MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 300 - TRIAL AND SENTENCING
AMEND Rule 4-343 by adding to the form set forth in section
(h) a new “Preliminary” section containing five issues for
determination, by adding a new paragraph to Section VI of the
form referring to the new “Preliminary” section, by deleting
the last sentence of section (i), and by making stylistic
changes, as follows:
Rule 4-343.
SENTENCING - PROCEDURE IN CAPITAL CASES
. . .
(h)
Form of Written Findings and Determinations
Except as otherwise provided in section (i) of this Rule,
the findings and determinations shall be made in writing in the
following form:
(CAPTION)
FINDINGS AND SENTENCING DETERMINATION
VICTIM:
[Name of murder victim]
Preliminary
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Based upon the evidence, we unanimously find that each of
the following statements marked “proved” has been proved BEYOND A
REASONABLE DOUBT and that each of those statements marked “not
proved” has not been proved BEYOND A REASONABLE DOUBT.
Statement 1.
The State has produced biological evidence or
DNA evidence that links the defendant to the act of murder.
_____
proved
Statement 2.
_____
not
proved
The State has produced a videotaped, voluntary
interrogation and confession of the defendant to the murder.
______
proved
Statement 3.
______
not
proved
The State has produced a video recording that
conclusively links the defendant to the murder.
______
proved
______
not
proved
(If one or more of the above statements are marked “proved,”
proceed to statements 4 and 5. If statements 1, 2, and 3 are all
marked “not proved,” proceed to Section VI and enter
“Imprisonment for Life.”)
Statement 4.
At the time of the murder, the defendant was
18 years of age or older.
______
proved
Statement 5.
______
not
proved
The State has not relied solely on evidence
provided by eyewitnesses.
______
proved
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______
not
proved
(If statements 4 and 5 are BOTH marked “proved,” proceed to
Section I. If one or both statements are marked “not proved,”
proceed to Section VI and enter “Imprisonment for Life.”)
Section I
Based upon the evidence, we unanimously find that each of
the following statements marked "proved" has been proved BEYOND A
REASONABLE DOUBT and that each of those statements marked "not
proved" has not been proved BEYOND A REASONABLE DOUBT.
1. The defendant was a principal in the first degree to the
murder.
______
______
proved
not
proved
2. The defendant engaged or employed another person to commit
the murder and the murder was committed under an agreement or
contract for remuneration or the promise of remuneration.
______
proved
______
not
proved
3. The victim was a law enforcement officer who, while in the
performance of the officer's duties, was murdered by one or more
persons, and the defendant was a principal in the second degree
who:
(A) willfully, deliberately, and with premeditation
intended the death of the law enforcement officer; (B) was a
major participant in the murder; and (C) was actually present at
the time and place of the murder.
______
proved
______
not
proved
(If one or more of the above statements are marked "proved,"
proceed to Section II. If all are marked "not proved," proceed
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to Section VI and enter "Imprisonment for Life.")
Section II
Based upon the evidence, we unanimously find that the
following statement, if marked "proved," has been proved BY A
PREPONDERANCE OF THE EVIDENCE or that, if marked "not proved," it
has not been proved BY A PREPONDERANCE OF THE EVIDENCE.
At the time the murder was committed, the defendant was
mentally retarded.
______
proved
______
not
proved
(If the above statement is marked "proved," proceed to Section VI
and enter "Imprisonment for Life." If it is marked "not proved,"
complete Section III.)
Section III
Based upon the evidence, we unanimously find that each of the
following aggravating circumstances that is marked "proved" has
been proved BEYOND A REASONABLE DOUBT and we unanimously find
that each of the aggravating circumstances marked "not proved"
has not been proved BEYOND A REASONABLE DOUBT.
1. The victim was a law enforcement officer who, while in the
performance of the officer's duties, was murdered by one or more
persons.
______
proved
______
not
proved
2. The defendant committed the murder at a time when while
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confined in a correctional facility.
______
proved
______
not
proved
3. The defendant committed the murder in furtherance of an
escape from or an attempt to escape from or evade the lawful
custody, arrest, or detention of or by an officer or guard of a
correctional facility or by a law enforcement officer.
______
proved
______
not
proved
4. The victim was taken or attempted to be taken in the
course of a kidnapping or abduction or an attempt to kidnap or
abduct.
______
proved
______
not
proved
5. The victim was a child abducted in violation of Code,
Criminal Law Article, §3-503 (a)(1).
______
proved
______
not
proved
6. The defendant committed the murder under an agreement or
contract for remuneration or the promise of remuneration to
commit the murder.
______
proved
______
not
proved
7. The defendant engaged or employed another person to commit
the murder and the murder was committed under an agreement or
contract for remuneration or the promise of remuneration.
______
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______
proved
not
proved
8. At the time of the murder, the defendant was under the
sentence of death or imprisonment for life.
______
proved
______
not
proved
9. The defendant committed more than one offense of murder in
the first degree arising out of the same incident.
______
proved
______
not
proved
10. The defendant committed the murder while committing or
attempting to commit a carjacking, armed carjacking, robbery,
under Code, Criminal Law Article, §3-402 or §3-403, arson in the
first degree, rape in the first degree, or sexual offense in the
first degree.
______
proved
______
not
proved
(If one or more of the above statements are marked "proved,"
complete Section IV. If all of the above are marked "not proved,"
do not complete Sections IV and V and proceed to Section VI and
enter "Imprisonment for Life.")
Section IV
From our consideration of the facts and circumstances of this
case, we make the following determinations as to mitigating
circumstances:
1. The defendant has not previously (i) been found guilty of
a crime of violence; (ii) entered a plea of guilty or nolo
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contendere to a charge of a crime of violence; or (iii) been
granted probation before judgment for a crime of violence.
(As used in the preceding paragraph, "crime of violence"
means abduction, arson in the first degree, carjacking, armed
carjacking, escape in the first degree, kidnapping, mayhem,
murder, robbery under Code, Criminal Law Article,
§3-402 or §3-403, rape in the first or second degree, sexual
offense in the first or second degree, manslaughter other than
involuntary manslaughter, an attempt to commit any of these
offenses, or the use of a handgun in the commission of a felony
or another crime of violence.)
(Mark only one.)
[ ] (a) We unanimously find that it is more likely than not
that the above circumstance exists.
[ ] (b) We unanimously find that it is more likely than not
that the above circumstance does not exist.
[ ] (c) After a reasonable period of deliberation, one or more
of us, but fewer than all 12, find that it is more
likely than not that the above circumstance exists.
2. The victim was a participant in the defendant's conduct or
consented to the act which caused the victim's death.
(Mark only one.)
[ ] (a) We unanimously find that it is more likely than not
that the above circumstance exists.
[ ] (b) We unanimously find that it is more likely than not
that the above circumstance does not exist.
[ ] (c) After a reasonable period of deliberation, one or more
of us, but fewer than all 12, find that it is more
likely than not that the above circumstance exists.
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3. The defendant acted under substantial duress, domination,
or provocation of another person, even though not so substantial
as to constitute a complete defense to the prosecution.
(Mark only one.)
[ ] (a) We unanimously find that it is more likely than not
that the above circumstance exists.
[ ] (b) We unanimously find that it is more likely than not
that the above circumstance does not exist.
[ ] (c) After a reasonable period of deliberation, one or more
of us, but fewer than all 12, find that it is more
likely than not that the above circumstance exists.
4. The murder was committed while the capacity of the
defendant to appreciate the criminality of his or her conduct or
to conform his or her conduct to the requirements of law was
substantially impaired as a result of mental incapacity, mental
disorder, or emotional disturbance.
(Mark only one.)
[ ] (a) We unanimously find that it is more likely than not
that the above circumstance exists.
[ ] (b) We unanimously find that it is more likely than not
that the above circumstance does not exist.
[ ] (c) After a reasonable period of deliberation, one or more
of us, but fewer than all 12, find that it is more
likely than not that the above circumstance exists.
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5. The defendant was of a youthful age at the time of the
murder.
(Mark only one.)
[ ] (a) We unanimously find that it is more likely than not
that the above circumstance exists.
[ ] (b) We unanimously find that it is more likely than not
that the above circumstance does not exist.
[ ] (c) After a reasonable period of deliberation, one or more
of us, but fewer than all 12, find that it is more
likely than not that the above circumstance exists.
6. The act of the defendant was not the sole proximate cause
of the victim's death.
(Mark only one.)
[ ] (a) We unanimously find that it is more likely than not
that the above circumstance exists.
[ ] (b) We unanimously find that it is more likely than not
that the above circumstance does not exist.
[ ] (c) After a reasonable period of deliberation, one or more
of us, but fewer than all 12, find that it is more
likely than not that the above circumstance exists.
7. It is unlikely that the defendant will engage in further
criminal activity that would constitute a continuing threat to
society.
(Mark only one.)
[ ] (a) We unanimously find that it is more likely than not
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that the above circumstance exists.
[ ] (b) We unanimously find that it is more likely than not
that the above circumstance does not exist.
[ ] (c) After a reasonable period of deliberation, one or more
of us, but fewer than all 12, find that it is more
likely than not that the above circumstance exists.
8. (a) We unanimously find that it is more likely than not
that the following additional mitigating circumstances exist:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Use reverse side if necessary)
(b) One or more of us, but fewer than all 12, find that it is
more likely than not that the following additional mitigating
circumstances exist:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Use reverse side if necessary)
(If the jury unanimously determines in Section IV that no
mitigating circumstances exist, do not complete Section V.
Proceed to Section VI and enter "Death." If the jury or any
juror determines that one or more mitigating circumstances exist,
complete Section V.)
-18-
Section V
Each individual juror has weighed the aggravating
circumstances found unanimously to exist against any mitigating
circumstances found unanimously to exist, as well as against any
mitigating circumstance found by that individual juror to exist.
We unanimously find that the State has proved BY A
PREPONDERANCE OF THE EVIDENCE that the aggravating circumstances
marked "proved" in Section III outweigh the mitigating
circumstances in Section IV.
______
yes
______
no
Section VI
Enter the determination of sentence either "Imprisonment for
Life" or "Death" according to the following instructions:
a.
If statements 1, 2, and 3 in the “Preliminary” Section
are all marked “not proved,” enter “Imprisonment for Life.”
b.
If statement 4 in the “Preliminary” Section is marked
“not proved,” enter “Imprisonment for Life.”
c.
If statement 5 in the “Preliminary” Section is marked
“not proved,” enter “Imprisonment for Life.”
1. d. If all of the answers in Section I are marked "not
proved," enter "Imprisonment for Life."
2. e. If the answer in Section II is marked "proved," enter
"Imprisonment for Life."
3. f. If all of the answers in Section III are marked "not
proved," enter "Imprisonment for Life."
-19-
4. g. If Section IV was completed and the jury unanimously
determined that no mitigating circumstance exists, enter "Death."
5. h. If Section V was completed and marked "no," enter
"Imprisonment for Life."
6. i. If Section V was completed and marked "yes," enter
"Death."
We unanimously determine the sentence to be ____________________.
Section VII
If "Imprisonment for Life" is entered in Section VI, answer
the following question:
Based upon the evidence, does the jury unanimously determine
that the sentence of imprisonment for life previously entered
shall be without the possibility of parole?
______
yes
______
no
____________________________
Foreperson
____________________________
Juror 7
____________________________
Juror 2
____________________________
Juror 8
____________________________
Juror 3
____________________________
Juror 9
____________________________
Juror 4
____________________________
Juror 10
____________________________
Juror 5
____________________________
Juror 11
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____________________________
Juror 6
____________________________
Juror 12
or,
____________________________
JUDGE
(i)
Deletions from Form
Section II of the form set forth in section (h) of this
Rule shall not be submitted to the jury unless the issue of
mental retardation is generated by the evidence.
Unless the
defendant requests otherwise, Section III of the form shall not
include any aggravating circumstance that the State has not
specified in the notice required under Code, Criminal Law
Article, §2-202 (a) of its intention to seek a sentence of death.
Section VII of the form shall not be submitted to the jury unless
the State has given the notice required under Code, Criminal Law
Article, §2-203 of its intention to seek a sentence of
imprisonment for life without the possibility of parole.
Committee note: Omission of some aggravating circumstances from
the form is not intended to preclude argument by the defendant
concerning the absence of those circumstances.
. . .
REPORTER’S NOTE
Amendments to Rule 4-343 are proposed to conform the Rule to
Chapter 186, Acts of 2009 (SB 279), which precludes a sentence of
death unless the State did not rely solely on evidence provided
by eyewitnesses and there is (1) biological evidence or DNA
evidence that links the defendant to the act of murder, (2) a
videotaped, voluntary interrogation and confession of the
defendant to the murder, or (3) a video recording that
conclusively links the defendant to the murder.
Because the issues are threshold ones, a new section is
added to the beginning of the Findings and Sentencing
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Determination form in section (h), requiring determination as to
whether any of the conditions for eligibility for the death
penalty have been proved. Imposition of the death penalty also
is prohibited if the defendant was under 18 years of age at the
time of the murder. A determination as to that issue also is
added to the new section. References to this new “Preliminary”
section are added to Section VI.
The statute provides that if the State failed to present the
requisite evidence and had filed a notice under Code, Criminal
Law Article, §2-202 that it intended to seek the death penalty,
that notice is considered to have been withdrawn, and it is
deemed that the State filed the proper notice under Code,
Criminal Law Article, §2-203 to seek a sentence of life
imprisonment without the possibility of parole. Therefore, the
last sentence of section (i), which requires the State to give
§2-203 notice before Section VII can be submitted to the jury, is
deleted.
The changes to Sections I and III of the form set forth in
section (h) are stylistic, only.
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ALTERNATIVE #2
[Rule 4-343 - Bifurcated Sentencing Proceeding]
MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 300 - TRIAL AND SENTENCING
DELETE current Rule 4-343 and ADD new Rule 4-343, as
follows:
Rule 4-343.
(a)
SENTENCING - BIFURCATED PROCEDURE IN CAPITAL CASES
Applicability
This Rule applies when:
(1) a sentence of death is sought under Code, Criminal Law
Article, §2-303; and
(2) the defendant has been found guilty of murder in the
first degree, the State has given the notice required under Code,
Criminal Law Article, §2-202 (a), and the defendant may be
subject to a sentence of death.
(b)
Statutory Sentencing Procedure; Bifurcation of Proceeding
A sentencing proceeding, separate from the proceeding at
which the defendant's guilt was adjudicated, shall be conducted
as soon as practicable after the trial pursuant to the provisions
of Code, Criminal Law Article, §2-303 and this Rule.
Upon
recording the verdicts returned by the jury or judge, the court
shall bifurcate the sentencing proceeding into two phases. A
Phase I Findings form required by section (h) of this Rule and,
if necessary, a separate Phase II Findings and Sentencing
-23-
Determination form required by section (i) of this Rule shall be
completed with respect to each death for which the defendant is
subject to a sentence of death.
(c)
Presentence Disclosures by the State's Attorney
If not previously disclosed pursuant to Rule 4-263, the
State’s Attorney shall disclose to the defendant or counsel,
sufficiently in advance of Phase I of the sentencing proceeding
to afford the defendant a reasonable opportunity to investigate,
any information that the State expects to present to the court or
jury for consideration in sentencing.
Upon request by the
defendant, the court may postpone the sentencing proceeding if
the court finds that the defendant reasonably needs additional
time to investigate the State’s disclosure.
(d)
Reports of Defendant's Experts
Upon request by the State after the defendant has been
found guilty of murder in the first degree, the defendant shall
produce and permit the State to inspect and copy all written
reports made in connection with the action by each expert the
defendant expects to call as a witness at the sentencing
proceeding, including the results of any physical or mental
examination, scientific test, experiment, or comparison, and
shall furnish to the State the substance of any such oral report
or conclusion.
The defendant shall provide this information to
the State sufficiently in advance of Phase I of the sentencing
proceeding to afford the State a reasonable opportunity to
investigate the information.
Upon request by the State, the
-24-
court may postpone the sentencing proceeding if the court finds
that the State reasonably needs additional time to investigate
the defendant’s disclosure.
(e)
Judge
Except as provided in Rule 4-361, the judge who presided
at trial shall preside at both phases of the sentencing
proceeding.
(f)
Notice and Right of Victim's Representative to Address the
Court or Jury
(1)
Notice and Determination
Notice to a victim's representative of proceedings under
this Rule is governed by Code, Criminal Procedure Article,
§11-104 (e).
The court shall assure that the requirements of
that section have been satisfied.
(2)
Right to Address the Court or Jury
The right of a victim's representative to address the
court or jury during a sentencing proceeding under this Rule is
governed by Code, Criminal Procedure Article, §§11-403 and 11404.
That right may be exercised only during Phase II of the
sentencing proceeding.
Committee note: Code, Criminal Procedure Article, §11-404
permits the court (1) to hold a hearing outside the presence of
the jury to determine whether a victim's representative may
present an oral statement to the jury and (2) to limit any unduly
prejudicial portion of the proposed statement. See Payne v.
Tennessee, 501 U.S. 808 (1991), generally permitting the family
members of a victim to provide information concerning the
individuality of the victim and the impact of the crime on the
victim's survivors to the extent that the presentation does not
offend the Due Process Clause of the Fourteenth Amendment, but
-25-
leaving undisturbed a prohibition against information concerning
the family member's characterization of and opinions about the
crime, the defendant, and the appropriate sentence.
Cross reference: See Code, Criminal Procedure Article, §§11-103
(b), 11-403 (e), and 11-404 (c) concerning the right of a
victim's representative to file an application for leave to
appeal under certain circumstances.
(g)
Allocution
Before sentence is determined, the court shall afford the
defendant the opportunity, personally and through counsel, to
make a statement, and shall afford the State the opportunity to
respond.
If the defendant elects to allocute during the
sentencing proceeding, the statements and response shall be made
during Phase II of that proceeding.
Committee note: A defendant who elects to allocute may do so
before or after the State's rebuttal closing argument. If
allocution occurs after the State's rebuttal closing argument,
the State may respond to the allocution.
(h)
Phase I of Sentencing Proceeding
(1)
Issues, Evidence, Instruction, and Argument
In Phase I of the Sentencing proceeding, only the issues
contained on the “Phase I Findings” form set forth in subsection
(h)(2) of this Rule shall be presented to the sentencing jury or
judge for determination by special verdict.
The Court shall
limit additional evidence, instructions, and argument in the
Phase I proceeding to the issues presented.
(2)
Findings
The findings of the jury or judge in the Phase I
proceeding shall be made in the following form, except that the
-26-
requirement of unanimity applies only if the issues are submitted
to a jury:
(CAPTION)
PHASE I FINDINGS
VICTIM: [Name of murder victim]
Based upon the evidence, we unanimously find that each of
the following statements marked “proved” has been proved BEYOND A
REASONABLE DOUBT and that each of those statements marked “not
proved” has not been proved BEYOND A REASONABLE DOUBT.
1. At the time of the murder, the defendant was 18 years of
age or older.
______
proved
2.
______
not
proved
The State has produced biological evidence or DNA
evidence that links the defendant to the act of murder.
______
proved
3.
______
not
proved
The State has produced a videotaped, voluntary
interrogation and confession of the defendant to the murder.
______
proved
-27-
______
not
proved
4.
The State has produced a video recording that
conclusively links the defendant to the murder.
______
proved
5.
______
not
proved
The State has not relied solely on evidence provided by
eyewitnesses.
______
proved
6.
______
not
proved
The defendant was a principal in the first degree to the
murder.
______
proved
7.
______
not
proved
The defendant engaged or employed another person to
commit the murder and the murder was committed under an agreement
or contract for remuneration or the promise of remuneration.
______
proved
8.
______
not
proved
The victim was a law enforcement officer who, while in
the performance of the officer's duties, was murdered by one or
more persons, and the defendant was a principal in the second
degree who: (A) willfully, deliberately, and with premeditation
intended the death of the law enforcement officer; (B) was a
major participant in the murder; and (C) was actually present at
the time and place of the murder.
______
proved
-28-
______
not
proved
____________________________
Foreperson
____________________________
Juror 7
____________________________
Juror 2
____________________________
Juror 8
____________________________
Juror 3
____________________________
Juror 9
____________________________
Juror 4
____________________________
Juror 10
____________________________
Juror 5
____________________________
Juror 11
____________________________
Juror 6
____________________________
Juror 12
or,
____________________________
JUDGE
(4)
Entry of Findings
If the Phase I findings were made by a jury, the written
findings shall be returned to the court and entered as special
verdicts.
If the findings were made by a judge, they shall be
entered in the record.
(i) Phase II of Sentencing Proceeding
(1)
Findings and Sentencing Determinations
(A) In Phase II, subject to the deletions permitted or
required by section (j) of this Rule, the sentencing jury or
judge shall complete the Phase II Findings and Sentencing
Determination form set forth in this section if on the Phase I
Findings form:
(i) the statement numbered 1, if submitted to the
sentencing authority, was marked “proved;”
-29-
(ii) at least one of the statements numbered 2, 3, or 4
was marked “proved;”
(iii) the statement numbered 5 was marked “proved;” and
(iv) at least one of the statements numbered 6, 7, or 8
was marked “proved.”
(B) In all other cases, if the judge is the sentencing
authority, the judge shall enter a sentence of “Imprisonment for
Life” and determine whether the imprisonment shall be without the
possibility of parole.
If the jury is the sentencing authority,
the judge shall instruct the jury to enter a sentence of
“Imprisonment for Life,” and to complete only Section V of the
Findings and Sentencing Determination form.
(2)
Form of Written Phase II Findings and Determinations
Except as otherwise provided in section (j) of this
Rule, the Phase II findings and determinations shall be made in
writing in the following form:
(CAPTION)
PHASE II
FINDINGS AND SENTENCING DETERMINATION
VICTIM:
[Name of murder victim]
Section I
Based upon the evidence, we unanimously find that the
following statement, if marked “proved,” has been proved BY A
PREPONDERANCE OF THE EVIDENCE or that, if marked “not proved,” it
has not been proved BY A PREPONDERANCE OF THE EVIDENCE.
-30-
At the time the murder was committed, the defendant was
mentally retarded.
_____
proved
_____
not
proved
(If the above statement is marked “proved,” proceed to Section V
and enter “Imprisonment for Life.” If it is marked “not proved,”
complete Section II.)
Section II
(Aggravating Circumstances)
Based upon the evidence, we unanimously find that each of
the following aggravating circumstances that is marked "proved"
has been proved BEYOND A REASONABLE DOUBT and we unanimously find
that each of the aggravating circumstances marked "not proved"
has not been proved BEYOND A REASONABLE DOUBT.
1. The victim was a law enforcement officer who, while in the
performance of the officer's duties, was murdered by one or more
persons.
______
proved
______
not
proved
2. The defendant committed the murder while confined in a
correctional facility.
______
proved
______
not
proved
3. The defendant committed the murder in furtherance of an
escape from or an attempt to escape from or evade the lawful
custody, arrest, or detention of or by an officer or guard of a
-31-
correctional facility or by a law enforcement officer.
______
proved
______
not
proved
4. The victim was taken or attempted to be taken in the
course of a kidnapping or abduction or an attempt to kidnap or
abduct.
______
proved
______
not
proved
5. The victim was a child abducted in violation of Code,
Criminal Law Article, §3-503 (a)(1).
______
proved
______
not
proved
6. The defendant committed the murder under an agreement or
contract for remuneration or the promise of remuneration to
commit the murder.
______
proved
______
not
proved
7. The defendant engaged or employed another person to commit
the murder and the murder was committed under an agreement or
contract for remuneration or the promise of remuneration.
______
proved
______
not
proved
8. At the time of the murder, the defendant was under the
sentence of death or imprisonment for life.
______
proved
-32-
______
not
proved
9. The defendant committed more than one offense of murder in
the first degree arising out of the same incident.
______
proved
______
not
proved
10. The defendant committed the murder while committing or
attempting to commit a carjacking, armed carjacking, robbery,
under Code, Criminal Law Article, §3-402 or §3-403, arson in the
first degree, rape in the first degree, or sexual offense in the
first degree.
______
proved
______
not
proved
(If one or more of the above are marked "proved," complete
Section III.)
(If all of the above are marked "not proved," do not complete
Sections III and IV but proceed to Section V, enter "Imprisonment
for Life," and complete Section VI.)
Section III
(Mitigating Circumstances)
From our consideration of the facts and circumstances of
this case, we make the following determinations as to mitigating
circumstances:
1. The defendant has not previously (i) been found guilty of
a crime of violence; (ii) entered a plea of guilty or nolo
contendere to a charge of a crime of violence; or (iii) been
granted probation before judgment for a crime of violence.
-33-
(As used in the preceding paragraph, "crime of violence"
means abduction, arson in the first degree, carjacking, armed
carjacking, escape in the first degree, kidnapping, mayhem,
murder, robbery under Code, Criminal Law Article,
§3-402 or §3-403, rape in the first or second degree, sexual
offense in the first or second degree, manslaughter other than
involuntary manslaughter, an attempt to commit any of these
offenses, or the use of a handgun in the commission of a felony
or another crime of violence.)
(Mark only one.)
[ ] (a) We unanimously find that it is more likely than not
that the above circumstance exists.
[ ] (b) We unanimously find that it is more likely than not
that the above circumstance does not exist.
[ ] (c) After a reasonable period of deliberation, one or more
of us, but fewer than all 12, find that it is more
likely than not that the above circumstance exists.
2. The victim was a participant in the defendant's conduct or
consented to the act which caused the victim's death.
(Mark only one.)
[ ] (a) We unanimously find that it is more likely than not
that the above circumstance exists.
[ ] (b) We unanimously find that it is more likely than not
that the above circumstance does not exist.
[ ] (c) After a reasonable period of deliberation, one or more
of us, but fewer than all 12, find that it is more
likely than not that the above circumstance exists.
3. The defendant acted under substantial duress, domination,
or provocation of another person, even though not so substantial
-34-
as to constitute a complete defense to the prosecution.
(Mark only one.)
[ ] (a) We unanimously find that it is more likely than not
that the above circumstance exists.
[ ] (b) We unanimously find that it is more likely than not
that the above circumstance does not exist.
[ ] (c) After a reasonable period of deliberation, one or more
of us, but fewer than all 12, find that it is more
likely than not that the above circumstance exists.
4. The murder was committed while the capacity of the
defendant to appreciate the criminality of his or her conduct or
to conform his or her conduct to the requirements of law was
substantially impaired as a result of mental incapacity, mental
disorder, or emotional disturbance.
(Mark only one.)
[ ] (a) We unanimously find that it is more likely than not
that the above circumstance exists.
[ ] (b) We unanimously find that it is more likely than not
that the above circumstance does not exist.
[ ] (c) After a reasonable period of deliberation, one or more
of us, but fewer than all 12, find that it is more
likely than not that the above circumstance exists.
5. The defendant was of a youthful age at the time of the
murder.
-35-
(Mark only one.)
[ ] (a) We unanimously find that it is more likely than not
that the above circumstance exists.
[ ] (b) We unanimously find that it is more likely than not
that the above circumstance does not exist.
[ ] (c) After a reasonable period of deliberation, one or more
of us, but fewer than all 12, find that it is more
likely than not that the above circumstance exists.
6. The act of the defendant was not the sole proximate cause
of the victim's death.
(Mark only one.)
[ ] (a) We unanimously find that it is more likely than not
that the above circumstance exists.
[ ] (b) We unanimously find that it is more likely than not
that the above circumstance does not exist.
[ ] (c) After a reasonable period of deliberation, one or more
of us, but fewer than all 12, find that it is more
likely than not that the above circumstance exists.
7. It is unlikely that the defendant will engage in further
criminal activity that would constitute a continuing threat to
society.
(Mark only one.)
[ ] (a) We unanimously find that it is more likely than not
that the above circumstance exists.
[ ] (b) We unanimously find that it is more likely than not
-36-
that the above circumstance does not exist.
[ ] (c) After a reasonable period of deliberation, one or more
of us, but fewer than all 12, find that it is more
likely than not that the above circumstance exists.
8. (a) We unanimously find that it is more likely than not
that the following additional mitigating circumstances exist:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Use reverse side if necessary)
(b) One or more of us, but fewer than all 12, find that it is
more likely than not that the following additional mitigating
circumstances exist:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Use reverse side if necessary)
(If the jury unanimously determines in Section III that no
mitigating circumstances exist, do not complete Section IV.
Proceed to Section V and enter "Death." If the jury or any juror
determines that one or more mitigating circumstances exist,
complete Section IV.)
Section IV
(Weighing of Aggravating and Mitigating Circumstances)
Each individual juror has weighed the aggravating
circumstances found unanimously to exist against any mitigating
-37-
circumstances found unanimously to exist, as well as against any
mitigating circumstance found by that individual juror to exist.
We unanimously find that the State has proved BY A
PREPONDERANCE OF THE EVIDENCE that the aggravating circumstances
marked "proved" in Section II outweigh the mitigating
circumstances in Section III.
______
yes
______
no
Section V
(Determination of Sentence of Death or Imprisonment for Life)
Enter the determination of sentence either "Imprisonment for
Life" or "Death" according to the following instructions:
1. If, based upon the special verdicts entered in Phase I,
the court finds or instructs the jury to enter “Imprisonment for
Life,” enter “Imprisonment for Life.”
2.
If the answer in Section I is marked “proved,” enter
“Imprisonment for Life.”
3. If all of the answers in Section II are marked "not
proved," enter "Imprisonment for Life."
4. If Section III was completed and the judge, if sitting as
the sentencing body, or the jury unanimously determined that no
mitigating circumstance exists, enter "Death."
5. If Section IV was completed and marked "no," enter
"Imprisonment for Life."
6. If Section IV was completed and marked "yes," enter
-38-
"Death."
We unanimously determine the sentence to be ____________________.
Section VI
(Parole Eligibility)
If "Imprisonment for Life" is entered in Section V or
if the judge has instructed you that the defendant’s sentence is
determined to be “Imprisonment for Life,” answer the following
question:
Based upon the evidence, does the jury unanimously determine
that the sentence of imprisonment for life shall be without the
possibility of parole?
______
yes
____________________________
______
no
____________________________
Foreperson
Juror 7
____________________________
____________________________
Juror 2
Juror 8
____________________________
____________________________
Juror 3
Juror 9
____________________________
____________________________
Juror 4
Juror 10
____________________________
____________________________
Juror 5
Juror 11
-39-
____________________________
____________________________
Juror 6
Juror 12
or,
____________________________
JUDGE
(j)
Deletions from Phase II Form
Section I of the Phase II form set forth in section (i) of
this Rule should not be submitted to the jury unless the issue of
mental retardation is generated by the evidence.
Unless the
defendant requests otherwise, Section III of the Phase II form
shall not include any aggravating circumstance that the State has
not specified in the notice required under Code, Criminal Law
Article, §2-202 (a) of its intention to seek a sentence of death.
Committee note: Omission of some aggravating circumstances from
the form is not intended to preclude argument by the defendant
concerning the absence of those circumstances.
(k)
Advice of the Judge
At the time of imposing a sentence of death, the judge
shall advise the defendant that the determination of guilt and
the sentence will be reviewed automatically by the Court of
Appeals, and that the sentence will be stayed pending that
review.
At the time of imposing a sentence of imprisonment for
life, the court shall cause the defendant to be advised in
accordance with Rule 4-342 (i).
Cross reference:
Rule 8-306.
-40-
(l)
Report of Judge
After sentence is imposed, the judge promptly
shall prepare and send to the parties a report in the following
form:
(CAPTION)
REPORT OF TRIAL JUDGE
I. Data Concerning Defendant
A. Date of Birth
B. Sex
C. Race
D. Address
E. Length of Time in Community
F. Reputation in Community
G. Family Situation and Background
1.
Situation at time of offense (describe defendant's
living situation including marital status and number
and age of children)
2.
Family history (describe family history including
pertinent data about parents and siblings)
H. Education
I. Work Record
J. Prior Criminal Record and Institutional History (list any
prior convictions, disposition, and periods of
incarceration)
K. Military History
-41-
L. Pertinent Physical or Mental Characteristics or History
M. Other Significant Data About Defendant
II.
Data Concerning Offense
A. Briefly describe facts of offense (include time, place,
and manner of death; weapon, if any; other participants
and nature of participation)
B. Was there any evidence that the defendant was impaired by
alcohol or drugs at the time of the offense? If so
describe.
C. Did the defendant know the victim prior to the offense?
Yes
.......
No
.......
1. If so, describe relationship.
2. Did the prior relationship in any way precipitate the
offense? If so, explain.
D. Did the victim's behavior in any way provoke the offense?
If so, explain.
E. Data Concerning Victim
1. Name
2. Date of Birth
3. Sex
4. Race
5. Length of time in community
6. Reputation in community
F. Any Other Significant Data About Offense
III.
A. Plea Entered by Defendant:
Not guilty
.......; guilty .......; not criminally
-42-
responsible .......
B. Mode of Trial:
Court
..... Jury
.....
If there was a jury trial, did defendant challenge the
jury selection or composition? If so, explain.
C. Counsel
1. Name
2. Address
3. Appointed or retained
(If more than one attorney represented defendant,
provide data on each and include stage of proceeding
at which the representation was furnished.)
D. Pre-Trial Publicity - Did defendant request a mistrial
or a change of venue on the basis of publicity? If so,
explain.
Attach copies of any motions made and exhibits
filed.
E. Was defendant charged with other offenses arising out of
the same incident? If so, list charges, state whether
they were tried at same proceeding, and give
disposition.
IV. Data Concerning Sentencing Proceeding
A. List aggravating circumstance(s) upon which State relied
in the pretrial notice.
B. Was the proceeding conducted
before same judge as trial?
.......
before same jury?
.......
-43-
If the sentencing proceeding was conducted before a jury
other than the trial jury, did the defendant challenge the
selection or composition of the jury?
If so, explain.
C. Counsel - If counsel at sentencing was different from
trial counsel, give information requested in III C above.
D. Which aggravating and mitigating circumstances were raised
by the evidence?
E. On which aggravating and mitigating circumstances were the
jury instructed?
F. Sentence imposed:
Imprisonment for life
Death
Imprisonment for life without
the possibility of parole
V. Chronology
Date of Offense
Arrest
Charge
Notification of intention to seek penalty of death
Trial (guilt/innocence) - began and ended
Post-trial Motions Disposed of
Sentencing Proceeding - began and ended
Sentence Imposed
VI.
Recommendation of Trial Court As To Whether Imposition of
Sentence of Death is Justified.
VII. A copy of the Findings and Sentencing Determination made in
this action is attached to and made a part of this report.
-44-
......................................
Judge
CERTIFICATION
I certify that on the ...... day of ..............., ......,
(month)
(year)
I sent copies of this report to counsel for the parties for
comment and have attached any comments made by them to this
report.
......................................
Judge
Within five days after receipt of the report, the parties
may submit to the judge written comments concerning the factual
accuracy of the report.
The judge promptly shall file with the
clerk of the trial court and with the Clerk of the Court of
Appeals the report in final form, noting any changes made,
together with any comments of the parties.
Committee note: The report of the judge is filed whenever a
sentence of death is sought, regardless of the sentence imposed.
Source: This Rule is derived in part from the 2008 version of
former Rule 4-343 and is in part new.
REPORTER’S NOTE
The proposed revision of Rule 4-343 provides for a
bifurcated sentencing procedure in capital cases.
In Phase I, the sentencing jury or judge makes the initial
findings necessary to determine whether the technical
requirements of eligibility for the death penalty have been met.
-45-
In Phase II, the sentencing jury or judge, after determining
whether any “mental retardation” defense has been proved, finds
and weighs aggravating and mitigating circumstances and
determines whether the sentence is for “imprisonment for life” or
“death.” Also in Phase II, if “imprisonment for life” is the
sentence, whether as a result of the Phase I determinations or as
a result of the Phase II process, the sentencing jury or judge
then determines whether “imprisonment for life” is with or
without the possibility of parole.
-46-
MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 700 – POST CONVICTION DNA TESTING
TABLE OF CONTENTS
Rule 4-701.
SCOPE
Rule 4-702.
DEFINITIONS
Rule 4-703.
COMMENCEMENT OF PROCEEDING; VENUE
(a) Generally
(b) Venue
Rule 4-704.
PETITION
(a) Content
(1) In General
(2) Request for DNA Testing
(3) Request for Search of Law Enforcement Database
or Log
(b) Amendment
(c) Withdrawal
Rule 4-705.
NOTICE OF PETITION
(a) To State’s Attorney
(b) To Public Defender
Rule 4-706.
ANSWER; MOTION TO TRANSFER
(a) Duty to File
(b) Motion to Transfer
(1) Time for Filing
(2) Content
(3) Determination; Transfer
(4) Notice of Transfer
-47-
(c) Answer
(1) Time for Filing
(2) Content
(d) Service
Rule 4-707.
DENIAL OF PETITION; APPOINTMENT OF COUNSEL
(a) Denial of Petition
(b) Appointment of Counsel
Rule 4-708.
RESPONSE TO ANSWER
Rule 4-709.
HEARING; PROCEDURE IF NO HEARING
(a) When Required
(b) When Not Required
(1) For Denial of Petition
(2) For Grant of Petition
(c) When Hearing is Discretionary
(d) Time of Hearing
(e) Written Order If No Hearing
Rule 4-710.
DISPOSITION OF PETITION AFTER A HEARING
(a) DNA Testing
(1) Denial of Petition
(2) Grant of Petition
(A) Order for DNA Testing
(B) Contents of Order
(3) Inability of State to Produce Scientific Evidence
(b) DNA Database or Log Search
Rule 4-711.
FURTHER PROCEEDINGS FOLLOWING TESTING
(a) If Test Results Unfavorable to Petitioner
(b) If Test Results Favorable to Petitioner
-48-
MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 700 – POST CONVICTION DNA TESTING
ADD new Rule 4-701, as follows:
Rule 4-701.
SCOPE
The Rules in this Chapter apply to proceedings filed under
Code, Criminal Procedure Article, §8-201.
Source:
This Rule is new.
REPORTER’S NOTE
Rules 4-701 through 4-710 are new and implement the
provisions of Chapter 337, Acts of 2008 (SB 211), which became
effective on January 1, 2009 and amended Code, Criminal Procedure
Article, §8-201.
-49-
MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 700 – POST CONVICTION DNA TESTING
ADD new Rule 4-702, as follows:
Rule 4-702.
DEFINITIONS
In this Chapter, the terms “biological evidence,” “DNA,”
“law enforcement agency,” and “scientific identification
evidence” have the meanings set forth in Code, Criminal Procedure
Article, §8-201 (a).
Source:
This Rule is new.
-50-
MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 700 – POST CONVICTION DNA TESTING
ADD new Rule 4-703, as follows:
Rule 4-703.
(a)
COMMENCEMENT OF PROCEEDING; VENUE
Generally
A proceeding under this Chapter is commenced by the filing
of a petition under Code, Criminal Procedure Article, §8-201 by a
person who:
(1) was convicted of a violation of one or more of the
following sections of Code, Criminal Law Article:
§§2-201,
2-204, 2-207, 3-303, 3-304, 3-305, and 3-306; and
(2) seeks (A) DNA testing of scientific identification
evidence that (i) the State either possesses or may acquire, on
its own initiative or by court order, from a third party and (ii)
is related to the judgment of conviction, or (B) a search by a
law enforcement agency of a law enforcement database or log for
the purpose of identifying the source of physical evidence used
for DNA testing.
(b)
Venue
The petition shall be filed in the criminal action in the
circuit court where the charging document was filed.
Source:
This Rule is new.
-51-
MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 700 – POST CONVICTION DNA TESTING
ADD new Rule 4-704, as follows:
Rule 4-704.
PETITION
(a) Content
(1)
In General
Each petition shall state:
(A) the petitioner’s name and, if applicable, place of
confinement and inmate identification number;
(B) the court in which the charging document was filed, the
date and place of trial, each offense of which the petitioner was
convicted, and the sentence imposed for each offense;
(C) a description of all previous proceedings in the case,
including direct appeals, motions for new trial, habeas corpus
proceedings, post-conviction proceedings, and all other
collateral proceedings, including (i) the court in which each
proceeding was filed, (ii) the case number of each proceeding,
(iii) the determinations made in each proceeding, and (iv) the
date of each determination; and
(D) a statement regarding whether the petitioner is able to
pay the cost of testing and to employ counsel.
If indigent, the
petitioner may request that the court appoint counsel.
(2)
Request for DNA Testing
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If the request is for DNA testing of scientific
identification evidence, the petition shall contain:
(A) a description of the specific scientific identification
evidence that the petitioner seeks to have tested;
(B) a statement of the factual basis for the claims that
(i) the State possesses that evidence or is able to acquire it
from a third party on its own initiative or by court order, (ii)
the evidence is related to the conviction, including a concise
description of how the evidence is related to the conviction, and
(iii) a reasonable probability exists that the requested DNA
testing has the scientific potential to produce exculpatory or
mitigating evidence relevant to a claim of wrongful conviction or
sentencing; and
(C) to the extent known: (i) a description of the type of
DNA testing the petitioner seeks to employ and (ii) a statement
of the factual basis for a claim that the DNA testing method has
achieved general acceptance within the relevant scientific
community.
(3)
Request for Search of Law Enforcement Database or Log
If the request is for a search of a law enforcement
agency database or log for the purpose of identifying the source
of physical evidence used for DNA testing, the petition shall:
(A) identify with particularity the law enforcement agency
whose database or log is to be searched; and
(B) state the factual basis for any claim that there is a
reasonable probability that a search of the database or log will
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produce exculpatory or mitigating evidence relevant to a claim of
wrongful conviction or sentencing or will identify the source of
physical evidence used for DNA testing of a law enforcement
database or log.
Committee note: A petition filed by an unrepresented petitioner
may be lacking in some of the details required by subsections
(a)(2) and (3) of this Rule. To justify an order requiring DNA
testing or a search of law enforcement databases or logs,
however, those details must be provided at some point. That may
be achieved by the appointment of counsel under Rule 4-707 and an
appropriate amendment to the petition.
(b)
Amendment
Amendments to the petition shall be freely allowed in
order to do substantial justice.
If an amendment is made, the
court shall allow the State a reasonable opportunity to respond
to the amendment.
(c)
Withdrawal
On motion of a petitioner, the court may grant leave for
the petitioner to withdraw a petition.
If the motion is filed
before the court orders DNA testing or a search of a law
enforcement agency DNA database or log, the leave to withdraw
shall be without prejudice.
If such an order has been issued,
the leave to withdraw shall be with prejudice unless the court,
for good cause, orders otherwise.
Source:
This Rule is new.
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MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 700 – POST CONVICTION DNA TESTING
ADD new Rule 4-705, as follows:
Rule 4-705.
(a)
NOTICE OF PETITION
To State’s Attorney
Upon receipt of a petition, the clerk promptly shall
forward a copy of it to the State’s Attorney and the county
administrative judge.
If the petition seeks a search of the DNA
database or log of an identified law enforcement agency, the
State’s Attorney shall send a copy of the petition to that law
enforcement agency.
(b)
To Public Defender
If the petition alleges that the petitioner is unable to
pay the costs of testing or to employ counsel, the clerk shall
promptly forward a copy of the petition to the Public Defender’s
Inmate Services Division.
Source:
This Rule is new.
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MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 700 – POST CONVICTION DNA TESTING
ADD new Rule 4-706, as follows:
Rule 4-706.
(a)
ANSWER; MOTION TO TRANSFER
Duty to File
The State’s Attorney shall file an answer to the petition
or a motion to transfer based on improper venue.
(b) Motion to Transfer
(1)
Time for Filing
A motion to transfer shall be filed no later than 30
days after the State’s Attorney receives notice of the petition.
(2)
Content
A statement of facts establishing proper venue,
including the case number of the case in which the judgment of
conviction was entered, shall be attached to the motion to
transfer.
(3)
Determination; Transfer
The court promptly shall grant or deny the motion to
transfer.
If the court grants the motion, the court shall
transfer the action to the circuit court of the county where the
petition should have been filed.
(4)
Notice of Transfer
If an action is transferred pursuant to subsection
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(b)(3) of this Rule, the clerk of the receiving court promptly
shall comply with the notice requirements of Rule 4-705.
(c)
Answer
(1)
Time for Filing
The answer shall be filed no later than the later of 60
days after the State’s Attorney receives notice of the filing or
transfer of the petition or 60 days after the court denies a
motion to transfer.
If an answer is not filed within the time
required by this Rule or an extended time allowed by the court,
the court shall take such action as it deems appropriate.
Cross reference:
1-204.
(2)
For extension of time requirements, see Rule
Content
The answer shall state or contain:
(A) whether the specific scientific identification evidence
that the petitioner desires to have tested exists and, if so, the
location of the evidence, the name and business address of the
custodian of the evidence, whether the evidence is appropriate
for DNA testing, and if not, the reasons why it is not
appropriate for DNA testing;
(B) if the State asserts that it has been unable to locate
the evidence, an affidavit containing a detailed description of
all steps it took to locate the evidence, including (i) a
description of all law enforcement records, databases, and logs
that were searched, (ii) a description and documentation of when
and how the searches were conducted, and (iii) the names and
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business addresses of the persons who conducted them;
(C) if the State asserts that the evidence has been
destroyed, an affidavit (i) containing a description and
documentation of all relevant protocols and legal requirements
pertaining to the destruction of the evidence, and (ii) stating
whether the evidence was destroyed in conformance with those
protocols and legal requirements and, (a) if so, providing
documentation of that fact, and, (b) if not, stating the reasons
for non-compliance with the protocols or legal requirements; and
(D) a response to each allegation in the petition.
(d) Service
The State’s Attorney shall serve a copy of the answer or
motion to transfer on the petitioner and, if the petitioner
alleges an inability to pay the costs of testing or to employ
counsel, on the Public Defender’s Inmate Services Division.
Source:
This Rule is new.
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MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 700 – POST CONVICTION DNA TESTING
ADD new Rule 4-707, as follows:
Rule 4-707.
(a)
DENIAL OF PETITION; APPOINTMENT OF COUNSEL
Denial of Petition
Upon consideration of the State’s answer, the court may
deny the petition if it finds as a matter of law that (1) the
petitioner has no standing or (2) the facts alleged in the
petition do not entitle the petitioner to relief.
(b)
Appointment of Counsel
If the court finds that a petitioner who has requested the
appointment of counsel is indigent, the court shall appoint
counsel within 30 days after the State has filed its answer
unless (1) the court denies the petition as a matter of law or
(2) counsel has already filed an appearance to represent the
petitioner.
Source:
This Rule is new.
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MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 700 – POST CONVICTION DNA TESTING
ADD new Rule 4-708, as follows:
Rule 4-708.
RESPONSE TO ANSWER
The petitioner may file a response to the answer no later
than 60 days after the later of service of the State’s answer or
entry of an order appointing counsel pursuant to Rule 4-707.
The
response may (1) challenge the adequacy or the accuracy of the
answer, (2) request that a search of other law enforcement agency
databases or logs be conducted for the purpose of identifying the
source of physical evidence used for DNA testing, and (3) be
accompanied by an amendment to the petition.
The petitioner
shall serve the response on the State’s Attorney.
Source:
This Rule is new.
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MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 700 – POST CONVICTION DNA TESTING
ADD new Rule 4-709, as follows:
Rule 4-709.
(a)
HEARING; PROCEDURE IF NO HEARING
When Required
Except as otherwise provided in subsection (b)(2) of this
Rule, the court shall hold a hearing if, from the petition,
answer, and any response, the court finds that the petitioner has
standing to file the petition and the petition is filed in the
appropriate court, and finds one of the following:
(1) specific scientific identification evidence exists or may
exist that is related to the judgment of conviction, a method of
DNA testing of the evidence may exist that is generally accepted
within the relevant scientific community, and there is or may be
a reasonable probability that the testing has the scientific
potential to produce exculpatory or mitigating evidence relevant
to a claim of wrongful conviction or sentencing;
(2) if the State contends that it has been unable to locate
the evidence, there is a genuine dispute as to whether the
State’s search was adequate;
(3) if the State contends that the evidence existed or may
have existed but was destroyed, there is a genuine dispute
whether the destruction was in conformance with any relevant
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governing protocols or was otherwise lawful;
(4) the State is unable to produce scientific evidence that
the State was required to preserve pursuant to Code, Criminal
Procedure Article, §8-201 (i)(l); or
(5) there is some other genuine dispute as to whether DNA
testing or a DNA database or log search by a law enforcement
agency should be ordered.
(b) When Not Required
(1)
For Denial of Petition
The court shall deny the petition without a hearing if
it finds that:
(A) the petitioner has no standing to request DNA testing
or a search of a law enforcement agency DNA database or logs; or
(B) as a matter of law, the facts alleged in the petition
pursuant to subsections (a)(2) and (3) of Rule 4-704 do not
entitle the petitioner to relief under Code, Criminal Procedure
Article, §8-201.
(2)
For Grant of Petition
The court may enter an order granting the petition
without a hearing if the State and the petitioner enter into a
written stipulation as to DNA testing or a DNA database or log
search and the court is satisfied with the contents of the
stipulation.
An order for DNA testing shall comply with the
requirements of Rule 4-710 (a)(2)(B).
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(c)
When Hearing is Discretionary
In its discretion, the court may hold a hearing when one
is not required.
(d)
Time of Hearing
Any hearing shall be held within (1) 90 days after service
of any response to the State’s answer or, (2) if no response is
timely filed, 120 days after service of the State’s answer.
(e)
Written Order If No Hearing
If the court declines to hold a hearing, it shall enter a
written order stating the reasons why no hearing is required.
copy of that order shall be served on the petitioner and the
State’s Attorney.
Cross reference: For victim notification, see Code, Criminal
Procedure Article, §§11-104 and 11-503.
Source:
This Rule is new.
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A
MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 700 – POST CONVICTION DNA TESTING
ADD new Rule 4-710, as follows:
Rule 4-710.
(a)
DISPOSITION OF PETITION AFTER A HEARING
DNA Testing
(1)
Denial of Petition
The court shall deny a petition for DNA testing if it
finds that:
(A) the State has made an adequate search for scientific
identification evidence that is related to the judgment of
conviction, that no such evidence exists within its possession or
within its ability to acquire from a third party on its own
initiative or by court order, and that no such evidence that the
State was required by law or applicable protocol to preserve was
intentionally and willfully destroyed; or
(B) scientific identification evidence exists but the method
of testing requested by petitioner is not generally accepted in
the relevant scientific community, or that there is no reasonable
probability that DNA testing has the scientific potential to
produce exculpatory or mitigating evidence relevant to a claim of
wrongful conviction or sentencing.
(2)
Grant of Petition
(A)
Order for DNA Testing
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The court shall order DNA testing if (i) the State
agrees to the testing, or (ii) after considering the petition,
the answer by the State’s Attorney, any response by the
petitioner, and any evidence adduced at a hearing on the
petition, the court finds that specific scientific identification
evidence exists that is related to the judgment of conviction and
there is a reasonable probability that the requested testing has
the scientific potential to produce exculpatory or mitigating
evidence relevant to a claim of wrongful conviction or
sentencing.
(B)
Contents of Order
(i)
An order for DNA testing shall:
(a) designate the specific evidence to be tested;
(b) specify the method of testing to be used;
(c) specify the laboratory where the testing is to be
performed, provided that, if the parties cannot agree on a
laboratory, the court may approve testing at any laboratory
accredited by the American Society of Crime Laboratory Directors,
the Laboratory Accreditation Board, or the National Forensic
Science Technology Center;
(d) require that the laboratory send a report of the
results of the testing as well as the raw data and the laboratory
notes to the petitioner and the State’s Attorney; and
(e) contain a provision concerning the payment of the
cost of the testing.
(ii) An order for DNA testing also may:
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(a) provide for the release of biological evidence by
a third party;
(b) require the preservation of some of the sample for
replicate testing and analysis or, if that is not possible, the
preservation of some of the DNA extract for testing by the State;
and
(c) contain any other appropriate provisions.
Cross reference: Code, Courts Article, §10-915.
(3)
Inability of State to Produce Scientific Evidence
If the State is unable to produce scientific evidence
that the State was required to preserve pursuant to Code,
Criminal Procedure Article, §8-201 (j) or former Code, Criminal
Procedure Article, §8-201 (i), and the court, after a hearing,
determines that the failure to produce evidence was the result of
intentional and willful destruction, the court shall:
(i) if no post conviction proceeding was previously filed
by the petitioner under Code, Criminal Procedure Article, §7-102,
open such a proceeding;
(ii) if a post conviction proceeding is currently pending,
permit the petitioner to amend the petition in that proceeding in
light of the court’s finding; or
(iii) if a post conviction proceeding was previously filed
by petitioner under Code, Criminal Procedure Article, §7-102, but
is no longer pending, reopen the proceeding under Code, Criminal
Procedure Article, §7-104.
At any such post conviction hearing, the court shall infer that
-66-
the results of the post conviction DNA testing would have been
favorable to the petitioner.
(b)
DNA Database or Log Search
The court shall order a database or log search by a law
enforcement agency for the purpose of identifying the source of
physical evidence used for DNA testing if (i) the State agrees to
the search, or (ii) after considering the petition, the answer by
the State’s Attorney, any response by the petitioner, and any
evidence adduced at a hearing on the petition, the court finds
that a reasonable probability exists that the database or log
search will produce exculpatory or mitigating evidence relevant
to a claim of wrongful conviction or sentencing.
cases, the court shall deny the petition.
Source:
This Rule is new.
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In all other
MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 700 – POST CONVICTION DNA TESTING
ADD new Rule 4-711, as follows:
Rule 4-711.
(a)
FURTHER PROCEEDINGS FOLLOWING TESTING
If Test Results Unfavorable to Petitioner
If the test results fail to produce exculpatory or
mitigating evidence relevant to a claim of wrongful conviction or
sentencing, the court shall dismiss the petition and assess the
cost of DNA testing against the petitioner.
(b)
If Test Results Favorable to Petitioner
(1) If the test results produce exculpatory or mitigating
evidence relevant to a claim of wrongful conviction or
sentencing, the court shall order the State to pay the costs of
the testing and:
(A) if no post conviction proceeding was previously filed
by the petitioner under Code, Criminal Law Article, §7-102, open
such a proceeding;
(B) if a post conviction proceeding is currently pending,
permit the petitioner to amend the petition in that proceeding;
or
(C) if a post conviction proceeding was previously filed by
the petitioner under Code, Criminal Law Article, §7-102, reopen
the proceeding under Code, Criminal Law Article, §7-104; or
-68-
(D) if the court finds that a substantial possibility
exists that the petitioner would not have been convicted if the
DNA testing results had been known or introduced at trial, order
a new trial.
(2) If the court finds that (A) the test results produce
exculpatory or mitigating evidence relevant to a claim of
wrongful conviction or sentencing but (B) a substantial
possibility does not exist that the petitioner would not have
been so convicted or sentenced if the test results had been known
or introduced at trial, the court may order a new trial if it
also finds that such action is in the interest of justice.
(3) If the court grants a new trial under subsection
(b)(1)(D) or (b)(2) of this Rule, the court may order the release
of the petitioner on bond or on conditions that the court finds
will reasonably assure the presence of the petitioner at trial.
Cross reference:
Source:
Code, Criminal Procedure Article, §8-201 (i).
This Rule is new.
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MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 200 - PRETRIAL PROCEDURES
AMEND Rule 4-214 by adding a new section (c) pertaining to
joint representation of defendants and a cross reference
following section (c), as follows:
Rule 4-214.
(a)
DEFENSE COUNSEL
Appearance
Counsel retained or appointed to represent a defendant
shall enter an appearance in writing within five days after
accepting employment, after appointment, or after the filing of
the charging document in court, whichever occurs later. An
appearance entered in the District Court will automatically be
entered in the circuit court when a case is transferred to the
circuit court because of a demand for jury trial.
In any other
circumstance, counsel who intends to continue representation in
the circuit court after appearing in the District Court must
re-enter an appearance in the circuit court.
(b)
Extent of Duty of Appointed Counsel
When counsel is appointed by the Public Defender or by the
court, representation extends to all stages in the proceedings,
including but not limited to custody, interrogations, preliminary
hearing, pretrial motions and hearings, trial, motions for
modification or review of sentence or new trial, and appeal.
-70-
The
Public Defender may relieve appointed counsel and substitute new
counsel for the defendant without order of court by giving notice
of the substitution to the clerk of the court.
Representation by
the Public Defender's office may not be withdrawn until the
appearance of that office has been stricken pursuant to section
(c) (d) of this Rule.
The representation of appointed counsel
does not extend to the filing of subsequent discretionary
proceedings including petition for writ of certiorari, petition
to expunge records, and petition for post conviction relief.
(c)
Inquiry Into Joint Representation
(1)
Joint Representation
Joint representation occurs when:
(A)
an offense is charged that carries a potential
sentence of incarceration;
(B)
two or more defendants have been charged jointly or
joined for trial under Rule 4-253 (a); and
(C)
the defendants are represented by the same counsel or
by counsel who are associated in the practice of law.
(2)
Court’s Responsibilities in Cases of Joint
Representation
If a joint representation occurs, the court, on the
record, promptly and personally shall (A) advise each defendant
of the right to effective assistance of counsel, including
separate representation and (B) advise counsel to consider
carefully any potential areas of impermissible conflict of
interest arising from the joint representation.
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Unless there is
good cause to believe that no impermissible conflict of interest
is likely to arise, the court shall take appropriate measures to
protect each defendant’s right to counsel.
Cross reference: See Rule 1.7 of the Maryland Lawyers’ Rules of
Professional Conduct.
(c) (d) Striking Appearance
A motion to withdraw the appearance of counsel shall be
made in writing or in the presence of the defendant in open
court.
If the motion is in writing, moving counsel shall certify
that a written notice of intention to withdraw appearance was
sent to the defendant at least ten days before the filing of the
motion.
If the defendant is represented by other counsel or if
other counsel enters an appearance on behalf of the defendant,
and if no objection is made within ten days after the motion is
filed, the clerk shall strike the appearance of moving counsel.
If no other counsel has entered an appearance for the defendant,
leave to withdraw may be granted only by order of court.
The
court may refuse leave to withdraw an appearance if it would
unduly delay the trial of the action, would be prejudicial to any
of the parties, or otherwise would not be in the interest of
justice.
If leave is granted and the defendant is not
represented, a subpoena or other writ shall be issued and served
on the defendant for an appearance before the court for
proceedings pursuant to Rule 4-215.
Cross reference: Code, Courts Article, §6-407 (Automatic
Termination of Appearance of Attorney).
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Source: This Rule is in part derived from former Rule 725 and
M.D.R. 725 and in part from the 2009 version of Fed. R. Crim. P.
44.
REPORTER’S NOTE
A judge of the Circuit Court for Baltimore City, suggested
that Maryland adopt a rule similar to Fed. R. Crim. P. 44 (c)
that places a burden on the trial judge to inquire when two or
more defendants are represented by the same lawyer. Duvall v.
State, 399 Md. 210 (2007) addressed this issue, but there is no
Maryland Rule on point.
The Rules Committee recommends adding a new section (c) that
is derived in part from the federal rule, and that recognizes
that whether a conflict exists depends upon the facts of the
particular case. See Pugh v. State, 103 Md. App. 624 (1995).
-73-
MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 300 - TRIAL AND SENTENCING
AMEND Rule 4-327 to add a new section (e) pertaining to
inconsistent verdicts and to reletter the Rule, as follows:
Rule 4-327.
(a)
VERDICT - JURY
Return
The verdict of a jury shall be unanimous and shall be
returned in open court.
(b)
Sealed Verdict
With the consent of all parties, the court may
authorize the rendition of a sealed verdict during a temporary
adjournment of court.
A sealed verdict shall be in writing and
shall be signed by each member of the jury. It shall be sealed in
an envelope by the foreperson of the jury who shall write on the
outside of the envelope "Verdict Case No.
Maryland vs.
the clerk.
........" "State of
...................." and deliver the envelope to
The jury shall not be discharged, but the clerk shall
permit the jury to separate until the court is again in session
at which time the jury shall be called and the verdict opened and
received as other verdicts.
(c)
Two or More Defendants
When there are two or more defendants, the jury may return
a verdict with respect to a defendant as to whom it has agreed,
-74-
and any defendant as to whom the jury cannot agree may be tried
again.
(d)
Two or More Counts
When there are two or more counts, the jury may return a
verdict with respect to a count as to which it has agreed, and
any count as to which the jury cannot agree may be tried again.
(e)
Inconsistent Verdicts
Any objection to a jury’s verdict or verdicts on the
ground that the verdict or verdicts are legally inconsistent
shall be made before the jury is discharged to allow the trial
court an opportunity to remedy the error.
A failure to note a
timely objection constitutes a waiver.
Cross reference:
See Price v. State, 405 Md. 10 (2008).
(e) (f) Poll of Jury
On request of a party or on the court's own initiative,
the jury shall be polled after it has returned a verdict and
before it is discharged.
If the sworn jurors do not unanimously
concur in the verdict, the court may direct the jury to retire
for further deliberation, or may discharge the jury if satisfied
that a unanimous verdict cannot be reached.
Cross reference: See Rule 16-813, Maryland Code of Judicial
Conduct, Canon 3B (1), regarding praise or criticism of a jury's
verdict.
Source: This Rule is in part derived from former Rule 759 and in
part new.
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REPORTER’S NOTE
Price v. State, 405 Md. 10 (2008), held that inconsistent
jury verdicts shall not be allowed where the issue was preserved.
A concurring opinion recommended that any objection to allegedly
inconsistent verdicts must be made before the verdicts become
final and the jury is discharged, or the claim is waived.
The Rules Committee recommends adding a new section (e) to
Rule 4-327, which provides that any objection to a jury’s verdict
or verdicts on the ground of legal inconsistency must be made
before the jury is discharged. If the objection is not timely,
the objection is waived.
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MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 200 - PRETRIAL PROCEDURES
AMEND Rule 4-217 by adding language to subsection (d)(1)
pertaining to certain notifications as to surety insurers in
default and by adding language referring to a “circuit court
clerk” to the cross reference after subsection (d)(2), as
follows:
Rule 4-217.
BAIL BONDS
. . .
(d)
Qualification of Surety
(1)
In General
The Chief Clerk of the District Court shall maintain a
list containing: (A) the names of all surety insurers who are in
default, and have been for a period of 60 days or more, in the
payment of any bail bond forfeited in any court in the State, (B)
the names of all bail bondsmen authorized to write bail bonds in
this State, and (C) the limit for any one bond specified in the
bail bondsman's general power of attorney on file with the Chief
Clerk of the District Court.
The clerk of each circuit court and
the Chief Clerk of the District Court shall notify the Insurance
Commissioner of the name of each surety insurer who has failed to
resolve or satisfy bond forfeitures for a period of 60 days or
more.
The clerk of each circuit court also shall send a copy of
-77-
the list to the Chief Clerk of the District Court.
Cross reference: For penalties imposed on surety insurers in
default, see Code, Insurance Article, §21-103 (a).
(2)
Surety Insurer
No bail bond shall be accepted if the surety on the bond
is on the current list maintained by the Chief Clerk of the
District Court of those in default.
No bail bond executed by a
surety insurer directly may be accepted unless accompanied by an
affidavit reciting that the surety insurer is authorized by the
Insurance Commissioner of Maryland to write bail bonds in this
State.
Cross reference: For the obligation of the District Court Clerk
or a circuit court clerk to notify the Insurance Commissioner
concerning a surety insurer who fails to resolve or satisfy bond
forfeitures, see Code, Insurance Article, §21-103 (b).
(3)
Bail Bondsman
No bail bond executed by a bail bondsman may be accepted
unless the bondsman's name appears on the most recent list
maintained by the Chief Clerk of the District Court, the bail
bond is within the limit specified in the bondsman's general
power of attorney as shown on the list or in a special power of
attorney filed with the bond, and the bail bond is accompanied by
an affidavit reciting that the bail bondsman:
(A) is duly licensed in the jurisdiction in which the
charges are pending, if that jurisdiction licenses bail bondsmen;
(B) is authorized to engage the surety insurer as surety on
the bail bond pursuant to a valid general or special power of
attorney; and
-78-
(C) holds a valid license as an insurance broker or agent
in this State, and that the surety insurer is authorized by the
Insurance Commissioner of Maryland to write bail bonds in this
State.
Cross reference: Code, Criminal Procedure Article, §5-203 and
Rule 16-817 (Appointment of Bail Bond Commissioner - Licensing
and Regulation of Bail Bondsmen).
. . .
REPORTER’S NOTE
Chapter 192, Laws of 2008 (SB 571) amended Code, Insurance
Article, §21-103, which had previously required the District
Court Clerk to notify the Insurance Commissioner of surety
insurers who fail to resolve or satisfy bond forfeitures. The
amendment now also requires circuit court clerks to notify the
Insurance Commissioner about surety insurers in default.
To conform Rule 4-217 to the amended statute, the Rules
Committee recommends adding a sentence to subsection (d)(1)
providing that the clerk of each circuit court, as well as the
Chief Clerk of the District Court, shall send to the Insurance
Commissioner a list of the names of each surety insurer who fails
to resolve or satisfy bond forfeitures for a period of 60 days or
more. The amendment also requires that the clerk of the circuit
court send a copy of the list to the Chief Clerk of the District
Court. This complies with the current procedure, which is that
the Chief Clerk of the District Court maintains a list of all
surety insurers in default in both the District Court and the
circuit courts. The Committee also proposes adding a reference
to a circuit court clerk to the cross reference after subsection
(d)(2).
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MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 200 - PRETRIAL PROCEDURES
AMEND Rule 4-252 (h)(1) to delete language and to add
language to conform to Code, Courts Article, §12-302, as follows:
Rule 4-252.
MOTIONS IN CIRCUIT COURT
. . .
(h)
Effect of Determination of Certain Motions
(1)
Defect in Prosecution or Charging Document
If the court granted grants a motion based on a defect
in the institution of the prosecution or in the charging
document, it may order that the defendant be held in custody or
that the conditions of pretrial release continue for a specified
time, not to exceed ten days, pending the filing of a new
charging document it shall order the defendant released on
personal recognizance unless the crime charged is a crime of
violence as defined in Code, Criminal Law Article, §14-101, in
which case the court may release the defendant on any terms and
conditions that the court considers appropriate or may order that
the defendant be remanded to custody for a specific time period
not to exceed ten days pending the filing of a new charging
document.
. . .
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REPORTER’S NOTE
A possible conflict exists between the language of Code,
Courts Article, §12-302 and Rule 4-252 (h)(1). The statute
provides that unless a defendant is charged with a crime of
violence, pending an appeal from a final judgment granting a
motion to dismiss or quashing any indictment, information,
presentment, or inquisition, a defendant shall be released on
personal recognizance. The Rule provides that if a court granted
a motion based on a defect in the institution of the prosecution
or in the charging document, the court may order that the
defendant be held in custody or that the conditions of pretrial
release continue for a specified time, not to exceed ten days,
pending the filing of a new charging document. The Rules
Committee recommends modifying the language in subsection (h)(1)
to conform to the statutory language.
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MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 200 - PRETRIAL PROCEDURES
AMEND Rule 4-216 by adding a cross reference at the end of
subsection (e)(6), as follows:
Rule 4-216.
PRETRIAL RELEASE
. . .
(e)
Conditions of Release
The conditions of release imposed by a judicial officer
under this Rule may include:
(1) committing the defendant to the custody of a designated
person or organization that agrees to supervise the defendant and
assist in ensuring the defendant's appearance in court;
(2) placing the defendant under the supervision of a
probation officer or other appropriate public official;
(3) subjecting the defendant to reasonable restrictions with
respect to travel, association, or residence during the period of
release;
(4) requiring the defendant to post a bail bond complying
with Rule 4-217 in an amount and on conditions specified by the
judicial officer, including any of the following:
(A) without collateral security;
(B) with collateral security of the kind specified in Rule
4-217 (e)(1)(A) equal in value to the greater of $100.00 or 10%
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of the full penalty amount, and if the judicial officer sets bail
at $2500 or less, the judicial officer shall advise the defendant
that the defendant may post a bail bond secured by either a
corporate surety or a cash deposit of 10% of the full penalty
amount;
(C) with collateral security of the kind specified in Rule
4-217 (e)(1)(A) equal in value to a percentage greater than 10%
but less than the full penalty amount;
(D) with collateral security of the kind specified in Rule
4-217 (e)(1) equal in value to the full penalty amount; or
(E) with the obligation of a corporation that is an insurer
or other surety in the full penalty amount;
(5) subjecting the defendant to any other condition
reasonably necessary to:
(A) ensure the appearance of the defendant as required,
(B) protect the safety of the alleged victim, and
(C) ensure that the defendant will not pose a danger to
another person or to the community; and
(6) imposing upon the defendant, for good cause shown, one or
more of the conditions authorized under Code, Criminal Law
Article, §9-304 reasonably necessary to stop or prevent the
intimidation of a victim or witness or a violation of Code,
Criminal Law Article, §9-302, 9-303, or 9-305.
Cross reference: See Code, Criminal Procedure Article, §5-201
(a)(2) concerning protections for victims as a condition of
release. See Code, Criminal Procedure Article, §5-201 (b), and
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Code, Business Occupations and Professions Article, Title 20,
concerning private home detention monitoring as a condition of
release.
. . .
REPORTER’S NOTE
Proposed amendments to Rules 4-216, 4-252, 4-314, 4-331, 4346, 4-347, 4-351, 4-406, 8-413, 15-303, and 15-309 add cross
references to various provisions of the Criminal Procedure
Article pertaining to rights of victims of crime and their
representatives.
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MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 200 - PRETRIAL PROCEDURES
AMEND Rule 4-252 by adding a cross reference at the end of
section (c), as follows:
Rule 4-252.
MOTIONS IN CIRCUIT COURT
. . .
(c)
Motion to Transfer to Juvenile Court
A request to transfer an action to juvenile court pursuant
to Code, Criminal Procedure Article, §4-202 shall be made by
separate motion entitled "Motion to Transfer to Juvenile Court."
The motion shall be filed within 30 days after the earlier of the
appearance of counsel or the first appearance of the defendant
before the court pursuant to Rule 4-213 (c) and, if not so made,
is waived unless the court, for good cause shown, orders
otherwise.
Cross reference: For notification of victims of their right to
file a victim impact statement in transfers of actions to
juvenile court, see Code, Criminal Procedure Article, §11-402
(c).
. . .
REPORTER’S NOTE
See the Reporter’s note to Rule 4-216.
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MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 300 - TRIAL AND SENTENCING
AMEND Rule 4-314 by adding language to the cross reference
at the end of section (a), as follows:
Rule 4-314.
(a)
DEFENSE OF NOT CRIMINALLY RESPONSIBLE
Bifurcation of Trial
(1)
Who May Request
If a defendant has entered pleas of both not guilty and
not criminally responsible by reason of insanity and has elected
a jury trial, the defendant or the State may move for a
bifurcated trial in which the issue of criminal responsibility
will be heard and determined separately from the issue of guilt.
(2)
Time for Filing Motion
A motion for a bifurcated trial shall be filed no later
than 15 days before trial, unless otherwise ordered by the court.
(3)
Granting of Motion
(A) The court shall grant a motion made by the defendant
unless it finds and states on the record a compelling reason to
deny the motion.
(B) The court may grant a motion made by the State if it
finds and states on the record (i) a compelling reason to
bifurcate the trial and (ii) that the defendant will not be
substantially prejudiced by the bifurcation.
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Cross reference: See Treece v. State, 313 Md. 665 (1988). For
victim notification procedures, see Code, Criminal Procedure
Article, §§3-123 and 11-104.
. . .
REPORTER’S NOTE
See the Reporter’s note to Rule 4-216.
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MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 300 - TRIAL AND SENTENCING
AMEND Rule 4-331 to add to the list of Code cross references
at the end of section (c), as follows:
Rule 4-331.
MOTIONS FOR NEW TRIAL
. . .
(e)
Disposition
The court may hold a hearing on any motion filed under
this Rule and shall hold a hearing on a motion filed under
section (c) if the motion satisfies the requirements of section
(d) and a hearing was requested. The court may revise a judgment
or set aside a verdict prior to entry of a judgment only on the
record in open court.
The court shall state its reasons for
setting aside a judgment or verdict and granting a new trial.
Cross reference: Code, Criminal Procedure Article, §§6-105, 6106, and §11-104, and 11-503.
. . .
REPORTER’S NOTE
See the Reporter’s note to Rule 4-216.
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MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 300 - TRIAL AND SENTENCING
AMEND Rule 4-346 by adding language to the cross reference
at the end of the Rule, as follows:
Rule 4-346.
PROBATION
. . .
Cross reference: For orders of probation or parole recommending
that a defendant reside in or travel to another state as a
condition of probation or parole, see the Interstate Compact for
Adult Offender Supervision, Code, Correctional Services Article,
§6-201 et seq. For evaluation as to the need for drug or alcohol
treatment before probation is ordered in cases involving
operating a motor vehicle or vessel while under the influence of
or impaired by drugs or alcohol, see Code, Criminal Procedure
Article, §6-220. For victim notification procedures, see Code,
Criminal Procedure Article, §11-104 (f). For procedures
concerning compliance with restitution judgments, see Code,
Criminal Procedure Article, §11-607.
. . .
REPORTER’S NOTE
See the Reporter’s note to Rule 4-216.
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MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 300 - TRIAL AND SENTENCING
AMEND Rule 4-347 by adding a cross reference at the end of
section (b), as follows:
Rule 4-347.
PROCEEDINGS FOR REVOCATION OF PROBATION
. . .
(b)
Notice
A copy of the petition, if any, and the order shall be
served on the defendant with the summons or warrant.
Cross reference: For victim notification procedures, see Code,
Criminal Procedure Article, §§11-104, 11-503, and 11-507.
. . .
REPORTER’S NOTE
See the Reporter’s note to Rule 4-216.
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MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 300 - TRIAL AND SENTENCING
AMEND Rule 4-351 by adding language to the cross reference
at the end of section (a), as follows:
Rule 4-351.
(a)
COMMITMENT RECORD
Content
When a person is convicted of an offense and sentenced to
imprisonment, the clerk shall deliver to the officer into whose
custody the defendant has been placed a commitment record
containing:
(1) The name and date of birth of the defendant;
(2) The docket reference of the action and the name of the
sentencing judge;
(3) The offense and each count for which the defendant was
sentenced;
(4) The sentence for each count, the date the sentence was
imposed, the date from which the sentence runs, and any credit
allowed to the defendant by law;
(5) A statement whether sentences are to run concurrently or
consecutively and, if consecutively, when each term is to begin
with reference to termination of the preceding term or to any
other outstanding or unserved sentence; and
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(6) the details or a copy of any order or judgment of
restitution.
Cross reference: See Code, Criminal Procedure Article, §6-216
(c) concerning Maryland Sentencing Guidelines Worksheets prepared
by a court. See Code, Criminal Procedure Article, §11-104 (f)
for notification procedures for victims. See Code, Criminal
Procedure Article, §11-607 for procedures concerning compliance
with restitution judgments.
. . .
REPORTER’S NOTE
See the Reporter’s note to Rule 4-216.
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MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 400 - POST CONVICTION PROCEDURE
AMEND Rule 4-406 to add language to the cross reference at
the end of section (d), as follows:
Rule 4-406.
HEARING
. . .
(d)
Presence of Petitioner
The petitioner has the right to be present at any hearing
on the petition.
Cross reference: For post conviction procedure, right to counsel
and hearing, see Code, Criminal Procedure Article, §§7-101 7-108 and §§7-201 - 7-204; victim notification, Criminal
Procedure Article, §§7-105, 11-104, and 11-503. For right of a
victim or victim’s representative to address the court, see Code,
Criminal Procedure Article, §11-403.
REPORTER’S NOTE
See the Reporter’s note to Rule 4-216.
-93-
MARYLAND RULES OF PROCEDURE
TITLE 8 - APPELLATE REVIEW IN THE COURT OF APPEALS
AND COURT OF SPECIAL APPEALS
CHAPTER 400 - PRELIMINARY PROCEDURES
AMEND Rule 8-413 to add a cross reference at the end of the
Rule, as follows:
Rule 8-413.
RECORD - CONTENTS AND FORM
. . .
Cross reference: See Code, Criminal Procedure Article, §11-104
(f)(2) for victim notification procedures.
. . .
REPORTER’S NOTE
See the Reporter’s note to Rule 4-216.
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MARYLAND RULES OF PROCEDURE
TITLE 15 - OTHER SPECIAL PROCEEDINGS
CHAPTER 300 - HABEAS CORPUS
AMEND Rule 15-303 by adding a cross reference at the end of
the Rule, as follows:
Rule 15-303.
PROCEDURE ON PETITION
. . .
Cross reference: For victim notification procedures, see Code,
Criminal Procedure Article, §§11-104 and 11-503.
. . .
REPORTER’S NOTE
See the Reporter’s note to Rule 4-216.
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MARYLAND RULES OF PROCEDURE
TITLE 15 - OTHER SPECIAL PROCEEDINGS
CHAPTER 300 - HABEAS CORPUS
AMEND Rule 15-309 by adding a cross reference at the end of
the Rule, as follows:
Rule 15-309.
HEARING
Upon the production of the individual confined or
restrained, the judge shall conduct a hearing immediately to
inquire into the legality and propriety of the individual's
confinement or restraint.
The individual confined or restrained
for whom the writ is issued may offer evidence to prove the lack
of legal justification for the confinement or restraint, and
evidence may be offered on behalf of the person having custody to
refute the claim.
Cross reference: For right of a victim or victim’s representative
to address the court, see Code, Criminal Procedure Article, §11403.
Source:
This Rule is derived from former Rules Z46 b and Z48.
REPORTER’S NOTE
See the Reporter’s note to Rule 4-216.
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MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 300 - TRIAL AND SENTENCING
AMEND Rule 4-322 by changing the title of the Rule; by
adding a new section (c) pertaining to audio, audiovisual, and
visual recordings; and by making stylistic changes, as follows:
Rule 4-322.
EXHIBITS, COMPUTER-GENERATED EVIDENCE, AND
RECORDINGS
(a)
Generally
All exhibits marked for identification, whether or not
offered in evidence and, if offered, whether or not admitted,
shall form part of the record and, unless the court orders
otherwise, shall remain in the custody of the clerk.
With leave
of court, a party may substitute a photograph or copy for any
exhibit.
Cross reference:
(b)
Rule 16-306.
Preservation of Computer-generated Evidence
The party offering A party who offers or uses computer-
generated evidence at any proceeding shall preserve the computergenerated evidence, furnish it to the clerk in a manner suitable
for transmittal as a part of the record on appeal, and present the
computer-generated evidence to an appellate court if the court so
requests.
Cross reference: For the definition of "computer-generated
evidence," see Rule 2-504.3.
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Committee note: This section requires the proponent of computergenerated evidence to reduce the computer-generated evidence to a
medium that allows review on appeal. The medium used will depend
upon the nature of the computer-generated evidence and the
technology available for preservation of that computer-generated
evidence. No special arrangements are needed for preservation of
computer-generated evidence that is presented on paper or through
spoken words. Ordinarily, the use of standard VHS videotape or
equivalent technology that is in common use by the general public
at the time of the hearing or trial will suffice for preservation
of other computer generated evidence. However, when the computergenerated evidence involves the creation of a three-dimensional
image or is perceived through a sense other than sight or hearing,
the proponent of the computer-generated evidence must make other
arrangements for preservation of the computer-generated evidence
and any subsequent presentation of it that may be required by an
appellate court.
(c)
Audio, Audiovisual, or Visual Recordings
(1)
Recording
A party who offers or uses an audio, audiovisual, or
visual recording at a hearing or trial shall: (A) ensure that the
recording is marked for identification and made part of the record
and that an additional copy is provided to the court, so that it
is available for future transcription, and (B) if only a portion
of the recording is offered or used, ensure that a description
that identifies the portion offered or used is made part of the
record.
(2)
Transcript of Recording
A party who offers or uses a transcript of the recording
at a hearing or trial shall: (A) ensure that the transcript is
made part of the record and provide an additional copy to the
court, and (B) if the recording is not on a medium in common use
by the general public, preserve it, furnish it to the clerk in a
manner suitable for transmittal as part of the record on appeal,
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and upon request present it to an appellate court in a format
designated by the court.
Cross reference: For a schedule of retention and disposal of
court records, see Rule 16-505.
Source:
This Rule is new.
REPORTER’S NOTE
The Office of the Public Defender requested that the Rules be
amended to require that sound recordings that are played at
hearings or trials be transcribed and made part of the record.
The Committee is advised that frequently, neither written
transcriptions of recordings nor the recordings themselves are
part of the record on appeal. Transcriptions prepared by an agent
of a party may be of questionable reliability, because they were
not prepared by a neutral person, such as a court reporter. Also,
in many cases, only a portion of a recording is played in court,
and what is played is not decided until the time of trial, so even
if the recording and a written transcription are included in the
record, it may not be clear what was heard at the trial.
A representative from the Office of the Public Defender
suggested that court reporters be required to report and
transcribe sound recordings, but the Committee is concerned that
this approach would impose an untenable burden on court reporters,
especially as to sound recordings on which several unidentified
voices are speaking at the same time.
The Committee recommends an approach applicable not only to
audio recordings but also to audiovisual and visual recordings
that is based upon the method of handling computer-generated
evidence at trial.
The party offering or using the recording must have it marked
for identification and made part of the record. The party also
must provide an extra copy to the court.
A party who offers or uses only a portion of a recording must
clearly identify the portion used and ensure that the
identification is made part of the record.
The party is not required to provide a transcript, but if one
is provided, the party must ensure that the transcript is made
part of the record and provide an extra copy to the court.
The use of any recording not on a medium in common use
follows a procedure similar to the procedure set out in Rule 4-322
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(b) as to computer-generated evidence. The party who uses or
offers the recording must preserve it, furnish it to the clerk in
a manner suitable for transmittal as part of the record on appeal,
and, upon request, present it to the appellate court in a format
designated by the court.
This procedure is contained in new section (c), proposed to
be added to Rule 4-322. The amendments to section (b) are
stylistic, only. Amendments to Rule 2-504.3 and 2-516 make the
procedural and stylistic changes to Rule 4-322 also applicable in
civil actions in the circuit court.
Because the party who offers or uses a recording is
responsible for ensuring that the recording is made part of the
record, providing an additional copy to the court for future
transcription, preserving any recording that is not on a medium in
common use by the general public, etc., an amendment to Rule 16404 provides that the court reporter need not record an audio or
audiovisual recording offered or used at a hearing or trial.
An amendment to Rule 8-411 adds to the contents of the
transcript that the appellant orders from the court reporter a
transcription of any audio or audiovisual recording or portion
thereof offered or used at a hearing or trial, if it is relevant
to the appeal, unless the parties provide a written stipulation as
to the contents of the recording.
The amendment to Rule 16-406 adds the word “court reporter”
to subsection (d)(1)(B).
Amendments to Rules 4-342, 4-642, 7-108, 7-114, 8-306, 8-412,
8-602, and 16-101, are stylistic only, replacing the word
“stenographer” with the words “court reporter.”
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MARYLAND RULES OF PROCEDURE
TITLE 2 - CIVIL PROCEDURE – CIRCUIT COURT
CHAPTER 500 - TRIAL
AMEND Rule 2-504.3 to make stylistic changes, as follows:
Rule 2-504.3.
COMPUTER-GENERATED EVIDENCE
. . .
(f)
Preservation of Computer-generated Evidence
The party offering A party who offers or uses
computer-generated evidence at any proceeding shall preserve the
computer-generated evidence, furnish it to the clerk in a manner
suitable for transmittal as a part of the record on appeal, and
present the computer-generated evidence to an appellate court if
the court so requests.
Committee note: This section requires the proponent of
computer-generated evidence to reduce the computer-generated
evidence to a medium that allows review on appeal. The medium
used will depend upon the nature of the computer-generated
evidence and the technology available for preservation of that
computer-generated evidence. No special arrangements are needed
for preservation of computer-generated evidence that is presented
on paper or through spoken words. Ordinarily, the use of standard
VHS videotape or equivalent technology that is in common use by
the general public at the time of the hearing or trial will
suffice for preservation of other computer-generated evidence.
However, when the computer-generated evidence involves the
creation of a three-dimensional image or is perceived through a
sense other than sight or hearing, the proponent of the
computer-generated evidence must make other arrangements for
preservation of the computer-generated evidence and any subsequent
presentation of it that may be required by an appellate court.
. . .
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REPORTER’S NOTE
The proposed amendments to Rule 2-504.3 conform it
stylistically to proposed amendments to Rule 4-322 (b) and the
Committee note following that section.
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MARYLAND RULES OF PROCEDURE
TITLE 2 - CIVIL PROCEDURE – CIRCUIT COURT
CHAPTER 500 - TRIAL
AMEND Rule 2-516 by changing the title of the Rule; by
adding a new section pertaining to audio, audiovisual, and visual
recordings, and by adding a cross reference, as follows:
Rule 2-516.
(a)
EXHIBITS AND RECORDINGS
Generally
All exhibits marked for identification, whether or not
offered in evidence and, if offered, whether or not admitted,
shall form part of the record and, unless the court orders
otherwise, shall remain in the custody of the clerk. With leave of
court, a party may substitute a photograph or copy for any
exhibit.
Cross reference:
(b)
Rule 16-306.
Audio, Audiovisual, or Visual Recordings
(1)
Recording
A party who offers or uses an audio, audiovisual, or
visual recording at a hearing or trial shall: (A) ensure that the
recording is marked for identification and made part of the record
and that an additional copy is provided to the court, so that it
is available for future transcription, and (B) if only a portion
of the recording is offered or used, ensure that a description
that identifies the portion offered or used is made part of the
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record.
(2)
Transcript of Recording
A party who offers or uses a transcript of the recording
at a hearing or trial shall: (A) ensure that the transcript is
made part of the record and provide an additional copy to the
court, and (B) if the recording is not on a medium in common use
by the general public, preserve it, furnish it to the clerk in a
manner suitable for transmittal as part of the record on appeal,
and upon request present it to an appellate court in a format
designated by the court.
Cross reference: For a schedule of retention and disposal of
court records, see Rule 16-505.
Source: This Rule is derived in part from former Rule 635 b and
is in part new.
REPORTER’S NOTE
New section (b) and a cross reference following section (b)
proposed to be added to Rule 2-516 track verbatim proposed new
Rule 4-322 (c) and the cross reference following section (c) of
that Rule.
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MARYLAND RULES OF PROCEDURE
TITLE 16 - COURTS, JUDGES, AND ATTORNEYS
CHAPTER 400 - ATTORNEYS, OFFICERS OF COURT AND OTHER PERSONS
AMEND Rule 16-404 (e) by adding language pertaining to an
exception for audio or audiovisual recordings and by making
stylistic changes, as follows:
Rule 16-404.
a.
ADMINISTRATION OF COURT REPORTERS
Applicability.
Section b of this Rule applies to court reporters in the
circuit courts and the District Court.
Sections c, d, and e apply
in the circuit courts only.
b.
Establishment of Regulations and Standards.
The Chief Judge of the Court of Appeals shall prescribe
regulations and standards regarding court reporters and the system
of reporting in the courts of the State.
The regulations and
standards may include:
(1) the selection, qualifications, and responsibilities of
court reporters;
(2) procedures and regulations;
(3) preparation, typing, and format of transcripts;
(4) charges for transcripts and copies;
(5) preservation and maintenance of reporting notes and
records, however recorded;
(6) equipment and supplies utilized in reporting; and
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(7) procedures for filing and maintaining administrative
records and reports.
Cross reference:
c.
Rule 16-504.
Number of Court Reporters - Supervisory Court Reporter.
Each circuit court shall have the number of court reporters
recommended by the County Administrative Judge and approved by the
Chief Judge of the Court of Appeals.
In a county with more than
one court reporter, the County Administrative Judge shall
designate one as supervisory court reporter, who shall serve at
the pleasure of the County Administrative Judge.
The Chief Judge
of the Court of Appeals shall prescribe the duties of the
supervisory court reporter.
d.
Supervision of Court Reporters.
Subject to the general supervision of the Chief Judge of the
Court of Appeals, the County Administrative Judge shall have the
supervisory responsibility for the court reporters in that county.
The County Administrative Judge may delegate supervisory
responsibility to the supervisory court reporter, including the
assignment of court reporters.
e.
Methods of Reporting - Proceedings to be Recorded.
Each court reporter assigned to record a proceeding shall
record verbatim by shorthand, stenotype, mechanical, or electronic
audio recording methods, electronic word or text processing
methods, or any combination of these methods, and shall maintain
that record subject to regulations and standards prescribed by the
Chief Judge of the Court of Appeals, except that a court reporter
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need not record an audio or audiovisual recording offered or used
at a hearing or trial.
Unless the court and the parties agree
otherwise, all All proceedings held in open court, including
opening statements, closing arguments, and hearings on motions,
shall be recorded in their entirety, unless the court and the
parties agree otherwise.
Cross reference: See Rules 2-516 and 4-322. See also Rule 16-1006
(g), which provides that backup audio recordings made by any
means, computer disks, and notes of a court reporter that have not
been filed with the clerk or are not part of the official court
record are not ordinarily subject to public inspection.
Source:
This Rule is derived from former Rule 1224.
REPORTER’S NOTE
See the Reporter’s note to Rule 4-322.
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MARYLAND RULES OF PROCEDURE
TITLE 8 - APPELLATE REVIEW IN THE COURT OF APPEALS
AND COURT OF SPECIAL APPEALS
CHAPTER 400 - PRELIMINARY PROCEDURES
AMEND Rule 8-411 by adding subsection (a)(3) pertaining to
audio and audiovisual recordings and by making stylistic changes,
as follows:
Rule 8-411.
(a)
TRANSCRIPT
Ordering of Transcript
Unless a copy of the transcript is already on file, the
appellant shall order in writing from the court stenographer
reporter a transcript containing:
(1) a transcription of (A) all the testimony or (B) that part
of the testimony that the parties agree, by written stipulation
filed with the clerk of the lower court, is necessary for the
appeal or (C) that part of the testimony ordered by the Court
pursuant to Rule 8-206 (d) or directed by the lower court in an
order; and
(2) a transcription of any proceeding relevant to the appeal
that was recorded pursuant to Rule 16-404 e.; and
(3) if relevant to the appeal, a transcription of any audio or
audiovisual recording or portion thereof offered or used at a
hearing or trial or, by agreement of the parties, a written
stipulation of the contents of the recording.
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(b)
Time for Ordering
The appellant shall order the transcript within ten days or
five days in child in need of assistance cases after:
(1) the date of an order entered pursuant to Rule 8-206 (a)(1)
that the appeal proceed without a prehearing conference, or an
order entered pursuant to Rule 8-206 (d) following a prehearing
conference, unless a different time is fixed by that order, in all
civil actions specified in Rule 8-205 (a), or
(2) the date the first notice of appeal is filed in all other
actions.
Cross reference:
(c)
Rule 8-207 (a).
Filing and Service
The appellant shall (1) file a copy of the written order to
the stenographer court reporter with the clerk of the lower court
for inclusion in the record, (2) cause the original transcript to
be filed promptly by the court reporter with the clerk of the
lower court for inclusion in the record, and (3) promptly serve a
copy on the appellee.
Source: This Rule is derived from former Rule 1026 a 2 and Rule
826 a 2 (b).
REPORTER’S NOTE
See the Reporter’s note to Rule 4-322.
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MARYLAND RULES OF PROCEDURE
TITLE 16 - COURTS, JUDGES, AND ATTORNEYS
CHAPTER 400 - ATTORNEYS, OFFICERS OF COURT AND OTHER PERSONS
AMEND Rule 16-406 (d)(1)(B) to add the words “court
reporter,” as follows:
Rule 16-406.
ACCESS TO ELECTRONIC AUDIO AND AUDIO-VIDEO
RECORDINGS OF PROCEEDINGS IN THE CIRCUIT COURT
. . .
d.
Right to Copy of Audio-video Recording; Restrictions.
1. Upon written request and the payment of reasonable costs,
the authorized custodian of an official videotape recording shall
make a copy of the recording, or any part requested, available to:
(A) a party to the action or the party's attorney;
(B) a stenographer, court reporter, or transcription service
designated by the court for the purpose of preparing an official
transcript from the recording; and
(C) the Commission on Judicial Disabilities or its designee.
. . .
REPORTER’S NOTE
See the Reporter’s note to Rule 4-322.
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MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 300 - TRIAL AND SENTENCING
AMEND Rule 4-342 (i) to change the word “stenographer” to
the word “reporter,” as follows:
Rule 4-342.
SENTENCING - PROCEDURE IN NON-CAPITAL CASES
. . .
(i)
Advice to the Defendant
At the time of imposing sentence, the court shall cause the
defendant to be advised of any right of appeal, any right of
review of the sentence under the Review of Criminal Sentences Act,
any right to move for modification or reduction of the sentence,
and the time allowed for the exercise of these rights. At the time
of imposing a sentence of incarceration for a violent crime as
defined in Code, Correctional Services Article, §7-101 and for
which a defendant will be eligible for parole as provided in
§7-301 (c) or (d) of the Correctional Services Article, the court
shall state in open court the minimum time the defendant must
serve for the violent crime before becoming eligible for parole.
The circuit court shall cause the defendant who was sentenced in
circuit court to be advised that within ten days after filing an
appeal, the defendant must order in writing a transcript from the
court stenographer reporter.
. . .
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REPORTER’S NOTE
See the Reporter’s note to Rule 4-322.
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MARYLAND RULES OF PROCEDURE
TITLE 4 - CRIMINAL CAUSES
CHAPTER 600 - CRIMINAL INVESTIGATIONS AND
MISCELLANEOUS PROVISIONS
AMEND Rule 4-642 (c)(1) to change the word “stenographer” to
the words “court reporter,” as follows:
Rule 4-642.
SECRECY
. . .
(c)
Grand Jury - Who May Be Present
(1)
While the Grand Jury is in Session
The following persons may be present while the grand jury
is in session: one or more attorneys for the State; the witness
being questioned; any stenographer court reporter appointed
pursuant to Code, Courts Article, §2-503; and, when needed,
interpreters, so long as an audio recording is made if the
interpreter is present for a witness.
. . .
REPORTER’S NOTE
See the Reporter’s note to Rule 4-322.
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MARYLAND RULES OF PROCEDURE
TITLE 7 - APPELLATE AND OTHER JUDICIAL REVIEW IN CIRCUIT COURT
CHAPTER 100 - APPEALS FROM THE DISTRICT COURT
TO THE CIRCUIT COURT
AMEND Rule 7-108 (c) to change the word “stenographer” to
the word “reporter,” as follows:
Rule 7-108.
RECORD - TIME FOR TRANSMITTING
. . .
(c)
Shortening or Extending the Time
On motion or on its own initiative, the District Court or
the circuit court may shorten or extend the time for transmittal
of the record.
If the motion is filed after the prescribed time
for transmitting the record has expired, the court will not extend
the time unless it finds that the inability to transmit the record
was caused by the act or omission of a judge, a clerk of court,
the court stenographer reporter, or a person other than the moving
party.
Source:
This Rule is derived from former Rule 1325.
REPORTER’S NOTE
See the Reporter’s note to Rule 4-322.
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MARYLAND RULES OF PROCEDURE
TITLE 7 - APPELLATE AND OTHER JUDICIAL REVIEW IN CIRCUIT COURT
CHAPTER 100 - APPEALS FROM THE DISTRICT COURT
TO THE CIRCUIT COURT
AMEND Rule 7-114 (d) to change the word “stenographer” to
the words “court reporter,” as follows:
Rule 7-114.
DISMISSAL OF APPEAL
On motion or on its own initiative, the circuit court may
dismiss an appeal for any of the following reasons:
(a) the appeal is not allowed by law;
(b) the appeal was not properly taken pursuant to Rule 7-103;
(c) the notice of appeal was not filed with the District Court
within the time prescribed by Rule 7-104;
(d) the record was not transmitted within the time prescribed by
Rule 7-108, unless the court finds that the failure to transmit
the record was caused by the act or omission of a judge, a clerk
of court, a stenographer court reporter, or the appellee;
(e)
an appeal to be heard de novo has been withdrawn pursuant to Rule
7-112; or
(f) the case has become moot.
Cross reference:
Source:
Rule 2-311.
This Rule is derived from former Rule 1335.
REPORTER’S NOTE
See the Reporter’s note to Rule 4-322.
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MARYLAND RULES OF PROCEDURE
TITLE 8 - APPELLATE REVIEW IN THE COURT OF APPEALS
AND COURT OF SPECIAL APPEALS
CHAPTER 300 - OBTAINING APPELLATE REVIEW IN COURT OF APPEALS
AMEND Rule 8-306 (c)(3) to change the word “stenographer” to
the word “reporter,” as follows:
Rule 8-306.
CAPITAL CASES - REVIEW IN COURT OF APPEALS
. . .
(c)
Automatic Appeal from Judgment
(1) Whenever a sentence of death is imposed, there shall be an
automatic appeal to the Court of Appeals of both the determination
of guilt and the sentence, whether or not the determination of
guilt was based on a plea of guilty.
(2) The clerk of the circuit court shall enter on the docket a
notice of appeal on behalf of the defendant within 10 days after
the later of (A) entry of the judgment, or (B) entry of a notice
withdrawing a timely motion for new trial filed pursuant to Rule
4-331 (a) or an order denying the motion.
The clerk shall
promptly notify the Attorney General, the defendant, and counsel
for the defendant of the entry of the notice of appeal.
(3) Unless the parties have elected to proceed in accordance
with Rule 8-413 (b), the clerk, upon docketing the notice of
appeal, shall direct the court stenographer reporter to prepare a
transcript of both the trial and sentencing proceedings in
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conformance with Rule 8-411 (a).
Within 10 days after receipt of
the transcript, the clerk shall transmit the record to the Clerk
of the Court of Appeals.
The statement of costs required by Rule
8-413 (c) shall separately state the cost applicable to the
sentencing proceeding.
The State shall pay those costs.
(4) The Court of Appeals shall consider (A) those issues
concerning the sentence required by Code, Criminal Law Article,
§2-401 (d) and (B) all other issues properly before the Court on
appeal and necessary to a decision in the case.
. . .
REPORTER’S NOTE
See the Reporter’s note to Rule 4-322.
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MARYLAND RULES OF PROCEDURE
TITLE 8 - APPELLATE REVIEW IN THE COURT OF APPEALS
AND COURT OF SPECIAL APPEALS
CHAPTER 400 - PRELIMINARY PROCEDURES
AMEND Rule 8-412 (d) to change the word “stenographer” to
the word “reporter,” as follows:
Rule 8-412.
RECORD - TIME FOR TRANSMITTING
. . .
(d)
Shortening or Extending the Time
On motion or on its own initiative, the appellate court
having jurisdiction of the appeal may shorten or extend the time
for transmittal of the record.
If the motion is filed after the
prescribed time for transmitting the record has expired, the Court
will not extend the time unless the Court finds that the failure
to transmit the record was caused by the act or omission of a
judge, a clerk of court, the court stenographer reporter, or the
appellee.
. . .
REPORTER’S NOTE
See the Reporter’s note to Rule 4-322.
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MARYLAND RULES OF PROCEDURE
TITLE 8 - APPELLATE REVIEW IN THE COURT OF APPEALS
AND COURT OF SPECIAL APPEALS
CHAPTER 600 - DISPOSITION
AMEND Rule 8-602 (a)(5) to change the word “stenographer” to
the word “reporter,” as follows:
Rule 8-602.
(a)
DISMISSAL BY COURT
Grounds
On motion or on its own initiative, the Court may dismiss
an appeal for any of the following reasons:
(1) the appeal is not allowed by these rules or other law;
(2) the appeal was not properly taken pursuant to Rule 8-201;
(3) the notice of appeal was not filed with the lower court
within the time prescribed by Rule 8-202;
(4) the appellant has failed to comply with the requirements
of Rule 8-205;
(5) the record was not transmitted within the time prescribed
by Rule 8-412, unless the court finds that the failure to transmit
the record was caused by the act or omission of a judge, a clerk
of court, the court stenographer reporter, or the appellee;
(6) the contents of the record do not comply with Rule 8-413;
(7) a brief or record extract was not filed by the appellant
within the time prescribed by Rule 8-502;
(8) the style, contents, size, format, legibility, or method
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of reproduction of a brief, appendix, or record extract does not
comply with Rules 8-112, 8-501, 8-503, or 8-504;
(9) the proper person was not substituted for the appellant
pursuant to Rule 8-401; or
(10) the case has become moot.
. . .
REPORTER’S NOTE
See the Reporter’s note to Rule 4-322.
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MARYLAND RULES OF PROCEDURE
TITLE 16 - COURTS, JUDGES, AND ATTORNEYS
CHAPTER 100 - COURT ADMINISTRATIVE STRUCTURE, JUDICIAL
DUTIES, ETC.
AMEND Rule 16-101 (d)(2)(iv) to change the word “stenographer”
to the word “reporter,” as follows:
Rule 16-101.
ADMINISTRATIVE RESPONSIBILITY
. . .
d.
County Administrative Judge.
. . .
2.
Duties.
Subject to the supervision of the Circuit Administrative
Judge, a County Administrative Judge shall be responsible for the
administration of justice and for the administration of the court
for that county.
The duties shall include:
. . .
(iv) ordering the purchase of all equipment and supplies
for the court and its ancillary services, such as master,
auditor, examiner, court administrator, court stenographer
reporter, jury commissioner, staff of the medical and probation
offices, and all additional court personnel other than personnel
comprising the Clerk of Court's office;
. . .
REPORTER’S NOTE
See the Reporter’s note to Rule 4-322.
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MARYLAND RULES OF PROCEDURE
TITLE 16 - COURTS, JUDGES, AND ATTORNEYS
CHAPTER 700 - DISCIPLINE AND INACTIVE STATUS OF ATTORNEYS
ADD new Rule 16-778, as follows:
Rule 16-778.
REFERRAL FROM CHILD SUPPORT ENFORCEMENT
ADMINISTRATION
(a)
Referral
The Commission promptly shall transmit to Bar Counsel a
referral from the Child Support Enforcement Administration
pursuant to Code, Family Law Article, §10-119.3 (e)(3) and direct
Bar Counsel to file a Petition for Disciplinary or Remedial
Action in the Court of Appeals pursuant to Rule 16-751 (a)(1).
A
copy of the Administration’s referral shall be attached to the
Petition, and a copy of the Petition and notice shall be served
on the attorney in accordance with Rule 16-753.
Committee note: The procedures set out in Code, Family Law
Article, §10-119.3 (f)(1), (2), and (3) are completed before the
referral to the Attorney Grievance Commission.
(b)
Show Cause Order
When a petition and notice of referral have been filed,
the Court of Appeals shall order that Bar Counsel and the
attorney, within 15 days from the date of the order, show cause
in writing why the attorney should not be suspended from the
practice of law.
(c)
Action by the Court of Appeals
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Upon consideration of the petition and any answer to the
order to show cause, the Court of Appeals may enter an order: (1)
immediately and indefinitely suspending the attorney from the
practice of law, (2) designating a judge pursuant to Rule 16-752
to hold a hearing in accordance with Rule 16-757, or (3)
containing any other appropriate provisions.
The provisions of
Rule 16-760 apply to an order under this section that suspends an
attorney.
(d)
Presumptive Effect of Referral
A referral from the Child Support Enforcement
Administration to the Attorney Grievance Commission is
presumptive evidence that the attorney falls within the criteria
specified in Code, Family Law Article, §10-119.3 (e)(1), but the
introduction of such evidence does not preclude Bar Counsel or
the attorney from introducing additional evidence or otherwise
showing cause why no suspension should be imposed.
(e)
Termination of Suspension
(1) On Notification by the Child Support Enforcement
Administration
Upon notification by the Child Support Enforcement
Administration that the attorney has complied with the provisions
of Code, Family Law Article, §10-119.3 (j), the Court of Appeals
shall order the attorney reinstated to the practice of law,
unless other grounds exist for the suspension to remain in
effect.
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(2)
On Verified Petition by Attorney
In the absence of a notification by the Child Support
Enforcement Administration pursuant to subsection (e)(1) of this
Rule, the attorney may file with the Court of Appeals a verified
petition for reinstatement.
The petition shall allege under oath
that (A) the attorney is in compliance with the provisions of
Code, Family Law Article, §10-119.3 (j) and is not currently in
arrears in the payment of child support, (B) at least 15 days
prior to filing the verified petition, the attorney gave written
notice of those facts to the Child Support Enforcement
Administration and requested that the Child Support Enforcement
Administration notify the Court, (C) the Child Support
Enforcement Administration has failed or refused to file such a
notification, and (D) the attorney is entitled to be reinstated.
All relevant documents shall be attached to the petition as
exhibits.
A copy of the petition and exhibits shall be served on
Bar Counsel, who shall file an answer within 15 days after
service.
Upon consideration of the petition and answer, the
Court of Appeals may enter an order reinstating the attorney, an
order denying the petition, or any other appropriate order.
(f)
Other Disciplinary Proceedings
Proceedings under this Rule shall not preclude (1) the use
of the facts underlying the referral from the Child Support
Enforcement Administration when relevant to a pending or
subsequent disciplinary proceeding against the attorney or (2)
prosecution of a disciplinary action based upon a pattern of
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conduct adverse to the administration of justice.
Source:
This Rule is new.
REPORTER’S NOTE
Chapter 256, Laws of 2007 (HB 792) amended Code, Family Law
Article, §10-119.3 to include the Court of Appeals as one of the
licensing authorities that can issue a sanction against someone
who is in arrears of paying child support. The statute provides
that if the person in arrears is an attorney, the Child Support
Enforcement Administration (CSEA) may refer the matter to the
Attorney Grievance Commission for disciplinary action. If an
attorney is found to be in arrears in paying child support, the
Court of Appeals may suspend his or her license or take any other
action authorized by the Rules in Title 16, Chapter 700.
To make the Rules consistent with the statutory change, the
Attorneys Subcommittee recommends the addition of new Rule 16778, establishing procedures to be followed after a matter has
been referred by the CSEA.
Sections (a), (b), (c), and (d) are based on sections (b),
(c), (f), and (g), respectively, of Rule 16-773, Reciprocal
Discipline or Inactive Status, except that: (1) in Rule 16-778
(a), Bar Counsel receives a directive from the Commission to file
a Petition for Disciplinary or Remedial Action pursuant to Rule
16-751 (a)(1) [rather than the discretionary authorization of
Rule 16-773 (b) to file a Petition for Disciplinary and Remedial
Action pursuant to Rule 16-751 (a)(2)]; and (2) in Rule 16-778
(d), a referral from the CSEA has a “presumptive” effect, rather
than the “conclusive” effect of an adjudication that is provided
by Rule 16-773 (g). Sections (e) and (f) are new.
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MARYLAND RULES OF PROCEDURE
TITLE 16 - COURTS, JUDGES, AND ATTORNEYS
CHAPTER 700 - DISCIPLINE AND INACTIVE STATUS OF ATTORNEYS
AMEND Rule 16-751 by changing the tagline to subsection
(a)(1), as follows:
Rule 16-751.
(a)
PETITION FOR DISCIPLINARY OR REMEDIAL ACTION
Commencement of Disciplinary or Remedial Action
(1)
Upon Approval or Direction of Commission
Upon approval or direction of the Commission, Bar
Counsel shall file a Petition for Disciplinary or Remedial Action
in the Court of Appeals.
(2)
Conviction of Crime; Reciprocal Action
If authorized by Rule 16-771 (b) or 16-773 (b), Bar
Counsel may file a Petition for Disciplinary or Remedial Action
in the Court of Appeals without prior approval of the Commission.
Bar Counsel promptly shall notify the Commission of the filing.
The Commission on review may direct the withdrawal of a petition
that was filed pursuant to this subsection.
. . .
REPORTER’S NOTE
The proposed amendment to the tagline to Rule 16-751 (a)(1)
conforms the tagline to the text of the subsection.
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MARYLAND RULES OF PROCEDURE
TITLE 16 - COURTS, JUDGES, AND ATTORNEYS
CHAPTER 600 - ATTORNEY TRUST ACCOUNTS
AMEND Rule 16-608 b to add certain provisions concerning
IOLTA Compliance Reports and to add a decertification
procedure, as follows:
Rule 16-608.
a.
INTEREST ON FUNDS IN ATTORNEY TRUST ACCOUNTS
Generally.
Any interest paid on funds deposited in an attorney trust
account, after deducting service charges and fees of the
financial institution, shall be credited and belong to the client
or third person whose funds are on deposit during the period the
interest is earned, except to the extent that interest is paid to
the Maryland Legal Services Corporation Fund as authorized by
law.
The attorney or law firm shall have no right or claim to
the interest.
Cross reference: See Rule 16-610 b 1 (D) providing that certain
fees may not be deducted from interest that otherwise would be
payable to the Maryland Legal Services Corporation Fund.
b.
Duty to Report IOLTA Participation.
1.
Required as a Condition of Practice.
As a condition precedent to the practice of law, Each
attorney each lawyer admitted to practice in Maryland shall
report annually in accordance with this Rule information
concerning all IOLTA accounts, including name, address, location,
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and account number, on a form approved by the Court of Appeals
and mailed and returned annually as directed by the Court of
Appeals.
2.
Oversight of the Reporting Process.
The Court of Appeals shall designate an employee of the
Administrative Office of the Courts to oversee the reporting
process set forth in this Rule.
3.
Mailing by the Administrative Office of the Courts.
On or before January 10 of each year, the Administrative
Office of the Courts shall mail an IOLTA Compliance Report form
to each lawyer on the list maintained by the Client Protection
Fund of the Bar of Maryland.
The addresses on that list shall be
used for all notices and correspondence pertaining to the
reports.
4.
Due Date.
IOLTA Compliance Reports for each year shall be filed
with the Administrative Office of the Courts on or before
February 15 of that year.
5.
Enforcement.
(A) Notice of Default.
As soon as practicable after May 1 of each year, the
Administrative Office of the Courts shall notify each defaulting
lawyer of the lawyer’s failure to file a report.
The notice
shall (i) state that the lawyer has not filed the IOLTA
Compliance Report for that year, (ii) state that continued
failure to file the Report may result in the entry of an order by
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the Court of Appeals prohibiting the lawyer from practicing law
in the State, and (iii) be sent by first-class mail.
The mailing
of the notice of default shall constitute service.
(B) Additional Discretionary Notice of Default.
In addition to the mailed notice, the Administrative
Office of the Courts may give additional notice to defaulting
lawyers by any of the means enumerated in Rule 16-811 f 3.
(C) List of Defaulting Lawyers.
As soon as practicable after July 1 of each year but no
later than August 1, the Administrative Office of the Courts
shall prepare, certify, and file with the Court of Appeals a list
that includes the name and address of each lawyer engaged in the
practice of law who has failed to file the IOLTA Compliance
Report for that year.
(D) Certification of Default; Order of Decertification.
The Administrative Office of the Courts shall submit
with the list a proposed Decertification Order stating the names
and addresses of those lawyers who have failed to file their
IOLTA Compliance Report.
At the request of the Court of Appeals,
the Administrative Office of the Courts also shall furnish
additional information from its records or give further notice to
the defaulting lawyers. If satisfied that the Administrative
Office of the Courts has given the required notice to each lawyer
named on the proposed Decertification Order, the Court of Appeals
shall enter a Decertification Order prohibiting each of them from
practicing law in the State.
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(E)
Mailing of Decertification Order.
The Administrative Office of the Courts shall mail by
first-class mail a copy of the Decertification Order to each
lawyer named in the Order.
The mailing of the copy of the
Decertification Order shall constitute service.
(F) Recertification; Restoration to Good Standing.
If a lawyer thereafter files the outstanding IOLTA
Compliance Report, the Administrative Office of the Courts shall
request the Court of Appeals to enter an order that recertifies
the lawyer and restores the lawyer to good standing.
Upon entry
of that order, the Administrative Office of the Courts promptly
shall furnish confirmation to the lawyer.
After a lawyer is
recertified, the fact that the lawyer had been decertified need
not be disclosed by the lawyer in response to a request for
information as to whether the lawyer has been the subject of a
disciplinary or remedial proceeding.
(G) Notices to Clerks and Maryland Legal Services
Corporation.
The Clerk of the Court of Appeals shall send a copy of
each Decertification Order and each order that recertifies a
lawyer and restores the lawyer to good standing entered pursuant
to this Rule to the Clerk of the Court of Special Appeals, the
Clerk of each circuit court, the Chief Clerk of the District
Court, and the Register of Wills for each county, and the
Maryland Legal Services Corporation.
(H)
Certain Information Furnished to the Maryland Legal
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Services Corporation.
The Administrative Office of the Courts promptly shall
submit to the Maryland Legal Services Corporation the data from
electronically submitted IOLTA Compliance Reports and, upon
request, shall forward the paper Compliance Reports.
(I)
Confidentiality.
Except as provided in subsection b 5 (H) of this Rule,
IOLTA Compliance Reports, whether in paper or electronic form,
are confidential and are not subject to inspection or disclosure
under Code, State Government Article, §10-615 (2) (iii).
The
Administrative Office of the Courts shall not release the Reports
to any person or agency, except as provided in this Rule or upon
order of the Court of Appeals. Nonidentifying information and
data contained in a lawyer’s IOLTA Compliance Report are not
confidential.
Cross reference: See Code, Business Occupations and Professions
Article, §10-303.
Source:
new.
Section a of this Rule is former Rule BU8.
Section b is
REPORTER’S NOTE
The Rules Committee is advised that in 2008, 923 lawyers
failed to timely file an IOLTA Compliance Report. Even after a
November 2008 letter from Bar Counsel to the noncomplying
lawyers, 324 Reports remained overdue. This number includes
Reports due from 124 lawyers who cannot be located; Bar Counsel’s
letters to them were returned by the Post Office as not being
deliverable to the lawyers at the addresses listed in the Client
Protection Fund records.
The proposed amendments to Rule 16-608 provide for
decertification of a lawyer who fails to file an IOLTA Compliance
Report. The amendments are based on similar provisions in Rule
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16-903, pertaining to the failure to file a Pro Bono Legal
Service Report. Added to both Rules is a new sentence, based
upon similar language in Rule 16-735 (c)(1), that provides that
in response to a request for information as to whether the lawyer
has been the subject of a disciplinary or remedial proceeding, a
recertified lawyer need not disclose that the lawyer had been
decertified.
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MARYLAND RULES OF PROCEDURE
TITLE 16 - COURTS, JUDGES, AND ATTORNEYS
CHAPTER 900 - PRO BONO LEGAL SERVICE
AMEND Rule 16-903 to add the phrase “in accordance with this
Rule” to section (a), to correct obsolete references in section
(c) and subsection (e)(2), and to add to subsection (e)(2) a
sentence allowing a recertified lawyer not to disclose the
decertification under certain circumstances, and to make
stylistic changes, as follows:
Rule 16-903.
(a)
REPORTING PRO BONO LEGAL SERVICE
Required as a Condition of Practice
As a condition precedent to the practice of law, each
lawyer authorized admitted to practice law in Maryland shall file
annually with the Administrative Office of the Courts, in
accordance with this Rule, a Pro Bono Legal Service Report on a
form approved by the Court of Appeals.
The form shall not
require the identification of pro bono clients.
Committee note: The purpose of pro bono legal service reporting
is to document the pro bono legal service performed by lawyers in
Maryland and determine the effectiveness of the Local Pro Bono
Action Plans, the State Pro Bono Action Plan, the Rules in this
Chapter, and Rule 6.1 of the Maryland Lawyers' Rules of
Professional Conduct.
(b)
Designated Employee of the Administrative Office of the
Courts Oversight of the Reporting Process
The Court of Appeals shall designate an employee of the
Administrative Office of the Courts to oversee the reporting
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process set forth in this Rule.
(c)
Mailing by the Administrative Office of the Courts
On or before January 10 of each year, the Administrative
Office of the Courts shall mail a Pro Bono Legal Service Report
form to each lawyer on the list maintained by the Clients'
Security Trust Fund Client Protection Fund of the Bar of
Maryland.
The addresses on that list shall be used for all
notices and correspondence pertaining to the reports.
(d)
Due Date
Pro Bono Legal Service Reports for a given calendar year
shall be filed with the Administrative Office of the Courts on or
before February 15 of the following calendar year.
(e)
Enforcement
(1)
Notice of Default
As soon as practicable after May 1 of each year, the
Administrative Office of the Courts shall give notice of the
failure to file a report to notify each defaulting lawyer of the
lawyer’s failure to file a report.
The notice shall (A) state
that the lawyer has not filed the Pro Bono Legal Service Report
for the previous calendar year, (B) state that continued failure
to file the Report may result in the entry of an order by the
Court of Appeals prohibiting the lawyer from practicing law in
the State, and (C) be sent by first-class mail.
The mailing of
the notice of default shall constitute service.
(2)
Additional Discretionary Notice of Default
In addition to the mailed notice, the Administrative
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Office of the Courts may give additional notice to defaulting
lawyers by any of the means enumerated in Rule 16-811 g 3 f 3.
(3)
List of Defaulting Lawyers
As soon as practicable after July 1 of each year but no
later than August 1, the Administrative Office of the Courts
shall prepare, certify, and file with the Court of Appeals a list
that includes the name and address of each lawyer engaged in the
practice of law who has failed to file the Pro Bono Legal Service
Report for the previous year.
(4)
Certification of Default; Order of Decertification
The Administrative Office of the Courts shall submit
with the list a proposed Decertification Order stating the names
and addresses of those lawyers who have failed to file their Pro
Bono Legal Service Reports for the specified calendar year.
At
the request of the Court of Appeals, the Administrative Office of
the Courts also shall furnish additional information from its
records or give further notice to the defaulting lawyers.
If
satisfied that the Administrative Office of the Courts has given
the required notice to each lawyer named on the proposed
Decertification Order, the Court of Appeals shall enter a
Decertification Order prohibiting each of them from practicing
law in the State.
(5)
Mailing of Decertification Order
The Administrative Office of the Courts shall mail by
first class mail a copy of the Decertification Order to each
lawyer named in the Order.
The mailing of the copy of the
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Decertification Order shall constitute service.
(6)
Recertification; Restoration to Good Standing
If a lawyer thereafter files the outstanding Pro Bono
Legal Service Report, the Administrative Office of the Courts
shall request the Court of Appeals to enter an order that
recertifies the lawyer and restores the lawyer to good standing.
Upon entry of an that order, that recertifies the lawyer and
restores the lawyer to good standing, the Administrative Office
of the Courts promptly shall furnish confirmation to the lawyer.
After a lawyer is recertified, the fact that the lawyer had been
decertified need not be disclosed by the lawyer in response to a
request for information as to whether the lawyer has been the
subject of a disciplinary or remedial proceeding.
(7)
Notices to Clerks
The Clerk of the Court of Appeals shall send a copy of
each Decertification Order and each order that recertifies a
lawyer and restores the lawyer to good standing entered pursuant
to this Rule to the Clerk of the Court of Special Appeals, the
Clerk of each circuit court, the Chief Clerk of the District
Court, and the Register of Wills for each county.
(f)
Certain Information Furnished to the Standing Committee on
Pro Bono Legal Service
The Administrative Office of the Courts shall submit
promptly to the Standing Committee on Pro Bono Legal Service a
compilation of non-identifying information and data from the Pro
Bono Legal Service Reports.
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(g)
Confidentiality
Pro Bono Legal Service Reports are confidential and are
not subject to inspection or disclosure under Code, State
Government Article, §10-615 (2)(iii).
The Administrative Office
of the Courts shall not release the Reports to any person or
agency, except upon order of the Court of Appeals.
Nonidentifying information and data contained in a lawyer’s Pro
Bono Legal Service Report are not confidential.
Source:
This Rule is new.
REPORTER’S NOTE
Upon admission to the bar, a new attorney may practice law
prior to the date the attorney’s initial Pro Bono Legal Services
Report is due. To clarify Rule 16-903 in this regard, the phrase
“in accordance with this Rule” is added to section (a).
An amendment to section (c) corrects an obsolete reference
to the “Clients’ Security Trust Fund” to read “Client Protection
Fund of the Bar of Maryland.”
An amendment to subsection (e)(2) corrects an obsolete
reference to “Rule 16-811 g 3" to read “Rule 16-811 f 3.”
An amendment to subsection (e)(6), based upon similar
language in Rule 16-735 (c)(1), provides that in response to a
request for information as to whether the lawyer has been the
subject of a disciplinary or remedial proceeding, a recertified
lawyer need not disclose the fact that the lawyer had been
decertified.
Other changes to the Rule are stylistic, only.
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MARYLAND RULES OF PROCEDURE
TITLE 16 - COURTS, JUDGES, AND ATTORNEYS
CHAPTER 1000 - ACCESS TO COURT RECORDS
AMEND Rule 16-1006 (d)(4) to add IOLTA Compliance Reports,
as follows:
Rule 16-1006.
REQUIRED DENIAL OF INSPECTION - CERTAIN CATEGORIES
OF CASE RECORDS
Except as otherwise provided by law, court order, or the
Rules in this Chapter, the custodian shall deny inspection of:
. . .
(d)
The following case records in actions or proceedings
involving attorneys or judges:
. . .
(4) Case records consisting of IOLTA Compliance Reports filed
by an attorney pursuant to Rule 16-608 and Pro Bono Legal Service
Reports filed by an attorney pursuant to Rule 16-903.
. . .
REPORTER’S NOTE
The proposed amendment to Rule 16-1006 (d)(4) adds to the
subsection IOLTA Compliance Reports filed pursuant to Rule 16608.
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MARYLAND RULES OF PROCEDURE
RULES GOVERNING ADMISSION TO THE BAR OF MARYLAND
AMEND Rule 19 of the Rules Governing Admission to the Bar of
Maryland to add to section (a) and subsection (b)(1) provisions
concerning the Accommodations Review Committee and its panels, to
add to section (c) provisions concerning disclosures to bar
admission agencies of other jurisdictions and to judicial and
attorney disciplinary authorities, to expand upon the disclosures
to the National Conference of Bar Examiners allowed by subsection
(c)(7), to allow disclosure of the report of any Character
Committee or the Board to be disclosed to any member of a
Character Committee, to allow disclosure of certain information
to the Child Support Enforcement Administration upon its request,
and to provide for access to and confidentiality of certain
records and proceedings in the Court of Appeals, as follows:
Rule 19.
(a)
CONFIDENTIALITY
Proceedings Before Committee or Board; General Policy
Except as provided in sections (b), and (c), and (d) of
this Rule, the proceedings before the Accommodations Review
Committee and its panels, a Character Committee, or and the Board
and the related papers, evidence, and information relating to
those proceedings are confidential and shall not be open to
public inspection or subject to court process or compulsory
disclosure.
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(b)
Right of Applicant
(1) Except as provided in paragraph (2) of this section, an
applicant has the right to attend all hearings before a panel of
the Accommodations Review Committee, a Character Committee, or
and the Board pertaining to his or her application and to be
informed of and inspect all papers, evidence, and information
received or considered by the panel, Committee, or the Board
pertaining to the applicant.
(2) This section does not apply to (A) papers or evidence
received or considered by a Character Committee of the Board if
the Committee or Board, without a hearing, recommends the
applicant's admission; (B) personal memoranda, notes, and work
papers of members or staff of a Character Committee or the Board;
(C) correspondence between or among members or staff of a
Character Committee or the Board; or (D) an applicant's bar
examination grades and answers, except as authorized in Rule 8
and Rule 13.
(c)
When Disclosure Authorized
The Board may disclose:
(1) statistical information that does not reveal the identity
of any individual applicant;
(2) the fact that an applicant has passed the bar examination
and the date of the examination;
(3) any material pertaining to an applicant that the
applicant would be entitled to inspect under section (b) of this
Rule, if the applicant has consented in writing to the
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disclosure;
(4) any material pertaining to an applicant requested by
(A) a court of this State, another state, or the United
States,
(B) Bar Counsel, the Attorney Grievance Commission, or the
attorney disciplinary authority in another state,
(C) the authority in another jurisdiction that is
responsible for investigating the character and fitness of an
applicant for admission to the bar of that jurisdiction, or
(D) Investigative Counsel, the Commission on Judicial
Disabilities, or the judicial disciplinary authority in another
jurisdiction for use in:
(A) (i) a pending disciplinary proceeding pending in that
court against the applicant as an attorney or judge;
(B) (ii) a pending proceeding pending in that court for
reinstatement of the applicant as an attorney after disbarment;
or
(C) (iii) a pending proceeding pending in that court for
original admission of the applicant to the Bar;
(5) any material pertaining to an applicant requested by a
judicial nominating commission or the Governor of this State, a
committee of the Senate of Maryland, or a committee of the United
States Senate in connection with an application by or nomination
of the applicant for judicial office;
(6) to a law school, the names of persons who graduated from
that law school who took a bar examination and whether they
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passed or failed the examination; and
(7) to the National Conference of Bar Examiners, identifying
the following information regarding (including name, Social
Security Number, birthdate, date of application, and date of
examination) of persons who have filed applications for admission
pursuant to Rule 2 or petitions to take the attorney's
examination pursuant to Rule 13.: the applicant’s name and
aliases, applicant number, birthdate, Law School Admission
Council number, law school, date that juris doctor degree
conferred, bar examination results and pass/fail status, and
number of bar examination attempts;
(8) to any member of a Character Committee, the report of any
Character Committee or the Board following a hearing on an
application; and
(9) to the Child Support Enforcement Administration, upon its
request, the name, Social Security number, and address of a
person who has filed an application pursuant to Rule 2 or a
petition to take the attorney’s examination pursuant to Rule 13.
Unless information disclosed pursuant to paragraphs (4) and
(5) of this section is disclosed with the written consent of the
applicant, an applicant shall receive a copy of the information
and may rebut, in writing, any matter contained in it.
Upon
receipt of a written rebuttal, the Board shall forward a copy to
the person or entity to whom the information was disclosed.
(d)
Proceedings and Access to Records in the Court of Appeals
(1)
Subject to reasonable regulation by the Court of
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Appeals, Bar Admission ceremonies shall be open.
(2)
Unless the Court otherwise orders in a particular case,:
(A) proceedings hearings in the Court of Appeals shall be
open., and
(B) if the Court conducts a hearing regarding a bar
applicant, any report by the Accommodations Review Committee, a
Character Committee, or the Board filed with the Court, but no
other part of the applicant’s record, shall be subject to public
inspection.
(3) The Court of Appeals may make any of the disclosures that
the Board may make pursuant to section (c) of this Rule.
(4) Except as provided in paragraphs (1), (2), and (3) of
this section or as otherwise required by law, proceedings before
the Court of Appeals and the related papers, evidence, and
information are confidential and shall not be open to public
inspection or subject to court process or compulsory disclosure.
Source:
This Rule is new.
REPORTER’S NOTE
Several amendments to Rule 19 of the Rules Governing
Admission to the Bar are proposed.
Provisions concerning the Accommodations Review Committee
and its panels are added to section (a) and subsections (b)(1)
and (d)(2).
In section (c),
This text is long and has been trimmed here. Open the source document for the complete record.
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