Articles Posted in Maryland Criminal Procedure

The Maryland Assembly has recently passed the Justice Reinvestment Act which is generally aimed at significantly reduces Maryland’s prison population. Our partner, Judge Joe Murphy (ret.) played a key role in formulating much of this legislation. The legislation passed the House by a vote of 122-19 and the Senate 46-0. Gov. Hogan is expected to sign the bill into law this spring.

Many major policy changes are highlighted below in this text but include a unique opportunity for inmates serving mandatory minimum sentences for drug offenses an unprecedented opportunity to return to court and ask for a sentence modification.

Some other highlights to the bill include:
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Judge Alfred Nance of the Baltimore City Circuit Court has ruled that defendants in Maryland criminal cases are entitled to be represented by an attorney at their initial appearance before a court commissioner.

Appellate Courts in Maryland have previously ruled that appearances before a court commissioner were not “critical stages in a criminal proceeding.” Although I have not read his opinion, Judge Nance wisely stayed his seemingly maverick ruling due to the likelihood the matter is far from settled and will be taken up on appeal.

It has been longstanding practice in Maryland that when a criminal defendant is arrested, they are brought before a court commissioner within twenty-four hours of the arrest. Most jurisdictions outside Baltimore City move much faster. At the brief hearing, the commissioner will set an initial bail. These hearings occur at all hours of the day. The bail is subject to review by a Maryland District Court Judge the next day.

Aggressive Maryland criminal defense attorneys know that the best way to attack a search warrant is by attacking the affidavit in support of the warrant. This is commonly referred to as a Franks Hearing.

In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court held that in certain defined circumstances a defendant can attack a facially sufficient affidavit. The Franks Court recognized a “presumption of validity with respect to the affidavit supporting the search warrant”, and thus created a rule of “limited scope”.

The rule created by the Franks decision requires that a dual showing be made before a court will hold an evidentiary hearing on the affidavit’s integrity. This showing incorporates both a subjective and an objective threshold component. In order to obtain an evidentiary hearing on the affidavit’s integrity, a defendant must first make “a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit.” This showing “must be more than conclusory” and must be accompanied by a detailed offer of proof.

In addition to showing that the affidavit contains false information, a defendant must show that the false information is essential to the probable cause determination. That is, if a court finds that “when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.”
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The purpose of the insanity defense in Maryland is to ensure that the criminal sanction is imposed only on those who had the cognitive and volitional capacity to comply with the law. Robey v. State, 54 Md.App. 60, 73, 456 A.2d 953, 960 (Md.App. 1983).

The test to determine whether a defendant is not criminally responsible for certain conduct is twofold. The Code of Maryland dictates that, “a defendant is not criminally responsible for criminal conduct of, at the time of that conduct, the defendant, because of a mental disorder or mental retardation, lacks substantial capacity to: (1) appreciate the criminality of the conduct; or (2) conform that conduct to the requirements of the law.” Md. Code Ann., Crim. Proc. §3-109(a). “The burden is on the defendant to establish to the defense of not criminally responsible by a preponderance of the evidence.” Md. Code Ann., Crim. Proc. §3-110(b). Once the defendant has provided sufficient evidence of mental disorder to rebut the presumption of sanity, the burden then shifts to the State to prove sanity beyond a reasonable. Robey, 54 Md. at 75.

The first prong of this test requires that a defendant was suffering from a mental disorder at the time that the crime was committed. Mental disorder is defined in the Code as “a behavioral or emotional illness that results from a behavioral or emotional illness that results from a psychiatric or neurological disorder.” Md. Code Ann., Crim. Proc. §3-101(g)(1). “Mental disorder includes a mental illness that so substantially impairs the mental or emotional functioning of a person as to make care or treatment necessary or advisable for the welfare of the person or for the safety of the person or property of another.” Md. Code Ann., Crim. Proc. §3-101(g)(2). For example, in Evans v. State, the Maryland Court of Appeals found that an amnesic episode was not shown to be a mental disorder because it was not shown to be a mental, emotional, or behavioral illness. Evans v. State, 322 Md. 24, 31 (Md. 1991). It is important to note, however, that the court also based its holding on the reasoning that the defendant had not produced sufficient evidence to support its expert’s finding of an amnesic episode. Id. In addition, “for purposes of this section, ‘mental disorder’ does not include an abnormality that is manifested only by repeated criminal or otherwise antisocial conduct.” Md. Code Ann., Crim Proc. §3-109(b).

As an experienced Maryland Criminal lawyer at Silverman, Thompson, Slutkin & White, LLC who has personally represented thousands of clients at the preliminary hearing stage, I am often asked by clients to explain exactly what is a preliminary hearing in Maryland?

In the Maryland criminal justice system, a preliminary hearing may occur when a defendant is charged with one or more felonies. In criminal cases in Baltimore City, preliminary hearings are automatically scheduled in all criminal cases. The practice in all other Maryland counties is to only schedule a preliminary hearing upon request of the defendant. Criminal defendants must make the request within ten days of the arrest or file a motion for good cause with a judge.

Preliminary hearings are conducted in the Maryland District Courts. If a judge finds probable cause, the case is sent (held over) to the Circuit Court for arraignment and possible trial. If the judge does not find probable cause that a felony has been committed by the defendant, then felony is dismissed. If a defendant is also charged with one or more misdemeanor, those charges remain and will be set for trial on another day at the District Court level.

Simply put, a District Court judge must find some link between the felony and the defendant. In most preliminary hearings in Maryland, the arresting officer will take the stand and read from his/her police report. The standard of review in a preliminary hearing is in the “light most favorable to the state”. In simple terms, the judge will give the prosecuting attorney the benefit of the doubt when determining if the defendant has committed the crime.
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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).
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Maryland Criminal Defense Attorney – Maryland Criminal Defense Lawyer – Baltimore Criminal Attorney – Baltimore Criminal Lawyer – Drug Offenses, Assault, Domestic Violence, Sex Offenses, Rape, Armed Robbery, Murder – These are just a few of the offenses wherein an experienced criminal attorney in Maryland may choose to file a Not Criminally Responsible (NCR) plea, commonly known as an insanity plea. A story in the Baltimore Sun today got me thinking about NCR pleas.
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Maryland Criminal Attorney – Maryland Criminal Lawyer – Baltimore Criminal Attorney – Baltimore Criminal Lawyer – There is an interesting case in the Baltimore Sun today that brings up a topic that I deal with regulary that almost no one, including most attorneys really undestands – extradition. An experienced Maryland criminal attorney should be well versed in the laws and procedures involved in extradition, which is the legal process by which someone who is wanted in a particular state is brought back to that state when they are captured in another.
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