# STANDING COMMITTEE ON RULES OF PRACTICE AND PROCEDURE > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/court_rules%3Amd%3Acfb1c1fbeeb9c985 ## Record - **Collection:** Court rules - **Document type:** Court rule ## Text 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 -2- 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. -3- 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 -4- 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, -5- 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). -6- 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 -7- 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 -8- 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 -9- ______ 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 -10- 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 -11- 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. ______ -12- ______ 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 -13- 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. -14- 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. -15- -16- 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 -17- that the above circumstance exists. [ ] (b) We unanimously find that it is more likely than not that the above circumstance does not exist. [ ] (c) After a reasonable period of deliberation, one or more of us, but fewer than all 12, find that it is more likely than not that the above circumstance exists. 8. (a) We unanimously find that it is more likely than not that the following additional mitigating circumstances exist: _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ (Use reverse side if necessary) (b) One or more of us, but fewer than all 12, find that it is more likely than not that the following additional mitigating circumstances exist: _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ (Use reverse side if necessary) (If the jury unanimously determines in Section IV that no mitigating circumstances exist, do not complete Section V. Proceed to Section VI and enter "Death." If the jury or any juror determines that one or more mitigating circumstances exist, complete Section V.) -18- Section V Each individual juror has weighed the aggravating circumstances found unanimously to exist against any mitigating circumstances found unanimously to exist, as well as against any mitigating circumstance found by that individual juror to exist. We unanimously find that the State has proved BY A PREPONDERANCE OF THE EVIDENCE that the aggravating circumstances marked "proved" in Section III outweigh the mitigating circumstances in Section IV. ______ yes ______ no Section VI Enter the determination of sentence either "Imprisonment for Life" or "Death" according to the following instructions: a. If statements 1, 2, and 3 in the “Preliminary” Section are all marked “not proved,” enter “Imprisonment for Life.” b. If statement 4 in the “Preliminary” Section is marked “not proved,” enter “Imprisonment for Life.” c. If statement 5 in the “Preliminary” Section is marked “not proved,” enter “Imprisonment for Life.” 1. d. If all of the answers in Section I are marked "not proved," enter "Imprisonment for Life." 2. e. If the answer in Section II is marked "proved," enter "Imprisonment for Life." 3. f. If all of the answers in Section III are marked "not proved," enter "Imprisonment for Life." -19- 4. g. If Section IV was completed and the jury unanimously determined that no mitigating circumstance exists, enter "Death." 5. h. If Section V was completed and marked "no," enter "Imprisonment for Life." 6. i. If Section V was completed and marked "yes," enter "Death." We unanimously determine the sentence to be ____________________. Section VII If "Imprisonment for Life" is entered in Section VI, answer the following question: Based upon the evidence, does the jury unanimously determine that the sentence of imprisonment for life previously entered shall be without the possibility of parole? ______ yes ______ no ____________________________ Foreperson ____________________________ Juror 7 ____________________________ Juror 2 ____________________________ Juror 8 ____________________________ Juror 3 ____________________________ Juror 9 ____________________________ Juror 4 ____________________________ Juror 10 ____________________________ Juror 5 ____________________________ Juror 11 -20- ____________________________ 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 -21- 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. -22- 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 -52- 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. -54- 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. -55- 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 -56- (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. -58- 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. -59- 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. -60- 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). -62- (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 -64- 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. -71- 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. . . . -80- 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% -82- 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. -86- 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 -91- (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. -97- 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, -98- 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 -99- (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 -103- 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. -108- (b) Time for Ordering The appellant shall order the transc [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/court_rules%3Amd%3Acfb1c1fbeeb9c985. Public record. Not legal advice.