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 The Court rescinded the previous versions of Maryland Rule 4-262, which governed discovery in the District Court, and Maryland Rule 4-263, which governed discovery in the Circuit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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