Posted On: June 24, 2008 by Steven D. Silverman

Changes to the Maryland Criminal Discovery Rules (Rules 4-262, 4-263, and 4-301) Effective 7/1/2008

The Court of Appeals of Maryland recently approved new discovery rules for criminal cases in Maryland, which will go into effect on July 1, 2008. The Court rescinded the previous versions of Maryland Rule 4-262, which governed discovery in the District Court, and Maryland Rule 4-263, which governed discovery in the Circuit Court, and replaced both rules in their entirety. The new rules incorporate more extensive discovery requirements for both the State’s Attorney and the Defendant than those contained in the old rules. Both rules were also expanded to include definitions. The changes to the rules are summarized below and copies of the new rules are attached.

A. Circuit Court:
Changes for the State:
The State’s Attorney’s disclosure requirements were expanded under the new rules, and in addition, some material that was previously available only upon request must now be provided to the Defendant without the necessity of a request. The new rule requires the State to make its disclosures within 30 days after the earlier of the first appearance by the Defendant before the Court or the appearance of counsel. Md. Rule 4-263(h)(1).
Without request, the State’s Attorney must now disclose:
• Statements of the Defendant and co-defendants – All written and oral statements of the Defendant or any codefendants are now required to be disclosed without request. All material and information, including documents and recordings, that relate to the acquisition of such statements also must be turned over. The state previously only had to disclose statements that it intended to use at trial, and then only upon request. Md. Rule 4-263(d)(1).
• Criminal Records and 404(b) evidence – The State must now disclose, without request, the prior criminal convictions, pending charges, and probationary status of the Defendant and any co-defendants. Md. Rule 4-263(d)(2). In addition, the State must also disclose, without request, all 5-404(b) evidence that the State’s Attorney intends to offer at any hearing or a trial. Md. Rule 4-263(d)(4). This information was not previously discoverable under the old Rule 4-263.
• Witnesses and Impeachment – The State must now disclose any written statements of any witnesses that the State’s Attorney intends to call at trial that relate to the offense charged. Md. Rule 4-263(d)(3). This is a large change from the old rules, which required only that the State disclose the name and address of any witnesses it intended to call. The State must also provide material or information in any form that tends to impeach a State’s witness, whether or not that material is admissible. Md. Rule 4-263(d)(6). That information includes:
o Rule 5-608(b) evidence of prior conduct of the witness that tends to show character for untruthfulness;
o Any relationship between the witness and the State’s Attorney, including the nature and circumstances of any agreement that may constitute an inducement for cooperation or testimony of the witness;
o Prior criminal convictions, pending charges, or probationary status that may be used to impeach the witness (the State is not required to investigate unless the State’s Attorney has reason to believe that the witness has a record);
o Any oral statement of the witness that is materially inconsistent with another statement made by that witness or any other witness; a medical, psychiatric, or addiction condition that may impair the witness’ ability to testify truthfully and accurately (the State’s Attorney, however, is not required to inquire into a witness’ history, unless he or she has information that would reasonably lead to a belief that an inquiry would discover such a condition);
o The fact that a witness has failed a polygraph examination; and
o The failure of a witness to identify the Defendant or a co-defendant.
• Experts – The State must now produce information about each expert consulted by the State’s Attorney without the necessity of a request by the Defense. Md. Rule 4-263(d)(8). In addition to the disclosure required under the previous rule, which included written reports or statements of experts and test and examination results, the new rule requires disclosure of the subject matter of the State’s Attorney’s consultation with any expert. Md. Rule 4-263(d)(8)(A).
• Evidence for Use at Trial and Property of the Defendant – the State’s disclosure requirements for these items are the same as they were under the old rules, with the exception that the State must now provide this information without a request by the Defendant, whereas under the old rules, the State was only required to produce this evidence upon request. Md. Rule 4-263(d)(9) &(10).

Changes for the Defense:
The Defendant is now responsible for providing certain discovery to the State without any request by the State’s Attorney. Under the old discovery rules, the defense was not subject to any automatic discovery requirement that did not necessitate a request by the State’s Attorney. The new rules also impose a new time schedule for discovery. Any disclosure of information required to be provided to the State’s Attorney without request under Md. Rule 4-263(e) (all information discussed in the “Without request” section below) must be made no later than 30 days before the first scheduled trial date. Md. Rule 4-263(h)(2).
Without request, the Defendant must disclose:
• Witness Information – The name and address (except when the witness declines permission for address disclosure) of each defense witness other than the Defendant must be provided to the State without request by the State’s Attorney. The defense must also provide the State with any written statements of witnesses that relate to the subject matter of the witnesses’ testimony. Md. Rule 4-263(e)(1). This requirement includes character and alibi witnesses that the defense intends to call (the requirement to turn over any written statements does not seem to apply here). Md. Rule 4-263(e)(3) & (4). While alibi witnesses were included in the disclosure requirements of the old rule, character witnesses were not.
• Experts – Without request by the state, the defense must provide the state with information regarding expert witnesses, which was previously discoverable by the state only upon request. This information includes the name and address of each expert that the defense intends to call (an expert witness may not decline to provide her or his address), the subject matter on which he or she is expected to testify, the substance of any of the expert’s findings, the opinions to which the expert will testify, as well as the grounds for those opinions, and the substance of any oral report or conclusion of the expert. Md. Rule 4-263(e)(2)(A) & (C). In addition, the defense must provide the State’s Attorney with the opportunity to inspect and copy written reports or statements of the expert, including the results of any tests done by the expert. Md. Rule 4-263(e)(2)(B).
• Insanity Defense – The defense must notify the State of any intention to rely on a defense of not criminally responsible and must provide information for any witnesses who will support such a defense. Md. Rule 4-263(e)(5).
• Documents and Other Evidence – The Defendant must provide the State’s Attorney with the opportunity to inspect or copy any documents, computer generated evidence, photos, or any other tangible evidence that the Defendant intends to introduce at trial. Md. Rule 4-263(e)(6). Under the previous rules, the Defendant was required only to disclose computer generated evidence, and then only at the request of the State’s Attorney.
With request:
Upon request or motion, the Defendant must also submit to discovery requirements as to her or his person. These requirements are very similar to those under the previous rules with regard to fingerprints, lineups and other identification evidence. The State’s Attorney must now file a motion, however, for the Defendant to appear for the collection of body samples or specimens or for a physical or mental examination, and such a motion will be granted by the court for good cause shown. Under the old rules the Defendant was required to permit the taking of such samples only upon request by the State’s Attorney. Md. Rule 4-263(f)(1) & (2).

B. District Court (for offenses punishable by imprisonment):
Changes for the State:
The new version of Maryland Rule 4-262 greatly expands the scope of information available to the Defendant through discovery in criminal proceedings in District Court. Although the State must only provide most information upon a request by the Defendant, the rule change brings the types of information available to a Defendant in District Court in line with the information available in Circuit Court.
Without request:
The State’s Attorney must now automatically provide the defendant with material or information in any form, whether or not admissible, which tends to impeach a state’s witness. Md. Rule 4-262(d)(1). This disclosure is in addition to the required disclosure of exculpatory evidence, also required under the old rules.
Upon request:
• Statements of the Defendant and co-defendants – Written and oral statements of the Defendant and any co-defendants are now available in their entirety, as is information that relates to the acquisition of such statements. Md. Rule 4-262(d)(2)(A).
• Witnesses and Impeachment – The State must now disclose any written statements of any witnesses that the State’s Attorney intends to call at trial that relate to the offense charged and are either signed or adopted by the witness or contained in an investigative or police report. Md. Rule 4-262(d)(2)(B). The old rules did not require the state to disclose any information about witnesses other than experts.
• Experts – The State previously was required only to provide each written report or statement made by any expert that it intended to call at a hearing, other than the preliminary hearing, or at trial. The State must now also disclose, upon request, the same information that is required to be disclosed in Circuit Court, including the subject matter on which the expert is expected to testify, the substance of the expert’s findings and opinions, and a summary of the grounds for each opinion. Md. Rule 4-262(d)(2)(D)(i). The State must provide, upon request, the opportunity to inspect and copy written reports and test results made in connection with the actions of an expert. Md. Rule 4-262(d)(2)(D)(ii).
• Evidence for Use at Trial, Searches, Seizures and Pretrial Identification, and Property of the Defendant – The State is now required to disclose these items upon request. The requirements for disclosure mirror those in the Circuit Court. Md. Rule 4-262(d)(2)(C),(E) & (F).

Changes for the Defendant
Under the old Rule 4-262, the Defendant was held to the same disclosure requirements in District Court as in Circuit Court. Under the new rules, the defendant does not have to produce any information in the District Court without a request from the State. The Defendant’s discovery requirements in District Court are limited to disclosures regarding experts and documents, computer generated evidence, and other tangible evidence that the Defendant intends to introduce at trial. Md. Rule 4-262(e)(1) & (2). In addition, the Defendant has to submit her or his person, upon request, for fingerprints, lineup and other identification evidence and, on motion, must appear for the taking of bodily samples and examinations. Md. Rule 4-262(f). The disclosures regarding experts, tangible evidence, and the Defendant’s person track the requirements in the Circuit Court discussed above.

C. District Court Cases Transferred to the Circuit Court
As a part of the rules change, Maryland Rule 4-301 was also amended to establish the proper discovery rules to be used when a case is transferred from District Court to Circuit Court upon prayer for a jury trial. Under the new rule, cases transferred to Circuit Court via a written request for a jury trial before the scheduled trial date, pursuant to Md. Rule 4-301(b)(1)(A), will be governed by Md. Rule 4-263, the Circuit Court discovery rule. Md. Rule 4-301(c). All other cases transferred to Circuit Court upon a jury trial demand will be governed by the District Court discovery rule, Md. Rule 4-262. Md. Rule 4-301(c).

For additional information, please contact Maryland criminal lawyer Steven D. Silverman.

Comments

The individual Rules don't say but has there been any indication that these new Rules apply to cases already pending as of 7/1/08 or only to new cases commenced after 7/1/08?

The Court of Appeals Rules Order states that the new rules "shall take effect and apply to all actions commenced on or after July 1, 2008, and insofar as practicable, to all actions then pending..." There isn't any further explaination of the meaning of "insofar as practicable." My best guess is that few judges will press the issue on matters comenced prior to July 1, 2008

Thanks for that info. I still think the larger issue is the constitutionality of 4-263, especially when the sanctions are applied for failure to disclose.

I agree, but keep in mind that the Maryland Court of Appeals created this rule on their own initiative-bypassing the Rules Committee. Since they will be ruling on the constitutionality of 4-263 at the state level, it could make for some troublesome decisions. I imagine post convictions will be the best remedy if the trial courts impose rough sanctions on criminal defendants. I know it will be burdensome on defense lawyers, to say the least.

Any idea whether 4-262 or 4-263 applies once a jury trial prayer is postponed in Circuit Court, i.e., the case is prayed and then postponed to a later trial date?

I think that the choice of discovery rule depends solely upon how the jury trial is prayed. Rule 4-301(c) makes the distinction based upon whether the jury trial request is made in writing prior to the District Court trial (which makes the Circuit Court rules applicable) or in some other manner. I don't see anything in the rules to indicate that a postponement after a transfer Circuit Court would make the Circuit Ct Rules (4-263) applicable if they otherwise wouldn't be or would change the rule choice in any way.

Moreover, Rule 4-301(b)(2) seems to me to lend further support to the conclusion that District Court rules would govern. That rule seems to indicate that, after an initial appearance in Circuit Court following a jury trial prayer, the Circuit Court case should be governed by the District Court rules, with the exception of the provisions of Rule 4-271(a). Md. Rule 4-301(b)(2)("Thereafter, except for the requirements of Code, Criminal Procedure Article, § 6-103 and Rule 4-271 (a), or unless the circuit court orders otherwise, pretrial procedures shall be governed by the rules in this Title applicable in the District Court.") Rule 4-271(a) governs the standard and procedure for obtaining a postponement, but doesn't seem to cause any change in procedure rules after a postponement, at least not explicitly.

In short, I think the answer would depend on how the jury trial was requested. In order to be positive, I would have to look through some background materials or cases, but the rules seem pretty clear. Hope this helps.

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