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.)

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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."

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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

-53-

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

-57-

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

-61-

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.

-63-

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:

-65-

(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.

-67-

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.

-69-

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).

-72-

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.

-75-

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.

-76-

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).

-79-

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.

-81-

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

-83-

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.

-84-

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.

-85-

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.

-87-

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.

-88-

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.

-89-

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.

-90-

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.

-92-

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.

-94-

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.

-95-

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.

-96-

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.”

-100-

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.

. . .

-101-

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.

-102-

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.

-104-

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

-105-

(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

-106-

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.

-107-

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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