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STEPS IN THE CRIMINAL JUSTICE SYSTEM

Byron L. Warnken

Law Professor, University of Baltimore School of Law

Copyright © 2011, 2008. All rights reserved.

Police-citizen encounters implicating the Fourth Amendment prohibition against

unreasonable searches & seizures ....................................................................................1

Police-citizen encounters implicating the Fifth Amendment privilege against compelled

self-incrimination ...............................................................................................................3

Police-citizen encounters implicating the Sixth Amendment right to counsel &/or

the Fourteenth Amendment DPC during identifications ...............................................3

Initial appearance (non-adversarial preliminary hearing) before a District Court

commissioner ......................................................................................................................3

Adversarial preliminary hearing before a District Court judge ...............................................4

Charging process ............................................................................................................................5

Initial appearance in Circuit Court..............................................................................................5

Discovery .........................................................................................................................................5

Mandatory notice from the State & mandatory motions from the Defendant ........................6

Plea bargaining & guilty pleas ......................................................................................................7

Trial rights ......................................................................................................................................8

Post-trial motions .........................................................................................................................18

Sentencing .....................................................................................................................................18

Appeal ...........................................................................................................................................20

Collateral review ..........................................................................................................................20

Parole ............................................................................................................................................21

Federal & state executive clemency............................................................................................21

I. Police-citizen encounters implicating the Fourth Amendment prohibition against

unreasonable searches & seizures: The Fourth Amendment prohibition against

unreasonable searches and seizures protects persons, homes, papers, and effects, and

involves intrusions -- on the street, in a vehicle, or in a home -- initiated by a

governmental actor (police or other governmental agent) on their own or based on citizen

complaints to police or court commissioners. To be admissible, generally, evidence must

be obtained in compliance with the Fourth Amendment.

A. “Mere accosting”: An accidental, voluntary, or consensual encounter between

police and citizens is “mere accosting,” which does not restrain liberty and does

not implicate the Fourth Amendment. It is not a Fourth Amendment intrusion if a

reasonable person would feel free to ignore the police and leave.

B. “Stop” or “detention”: A “stop” or a “detention” occurs when police intrude on

a reasonable expectation of privacy, but at a level less than a full custodial arrest.

A stop or detention requires a show of authority and submission to that show of

authority. For a stop or detention to be constitutional, the intrusion requires

reasonable suspicion that criminal activity is afoot.

C. “Stop & frisk”: A “frisk” occurs when, after the police have stopped or detained

an individual, the police (1) conduct a “pat down” or “frisk” of that person for

weapons, but do not search that person; or (2) search the area of the stopped

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person’s lunge, reach, and grasp for weapons or search the interior of a vehicle for

weapons. For a frisk to be constitutional, the intrusion requires reasonable

suspicion that the individual is armed and dangerous.

D. “Arrest”: An “arrest” occurs when police intrude on a reasonable expectation of

privacy at the level equal to a full custodial arrest at common law. For a

warrantless felony arrest to be constitutional, the intrusion requires probable cause

to believe that the individual being arrested committed a felony. For a warrantless

misdemeanor arrest to be constitutional, the intrusion requires probable cause to

believe that the individual being arrested committed a misdemeanor. However,

the common law, Maryland, and many other jurisdictions require that the

misdemeanor be committed in police presence. For arrest by warrant to be

constitutional, the intrusion requires (1) probable cause to believe that the

individual being arrested committed a crime, and (2) a warrant issued by a neutral

and detached magistrate. An arrest warrant is only required if (1) the arrest takes

place in the arrestee’s home, unless there is exigency or consent to enter; or (2) in

many jurisdictions, the arrest is for a misdemeanor not committed in police

presence.

E. Search: Other than inventory searches and some administrative searches, a

search requires probable cause to believe that particularized fruits, evidence, or

instrumentalities of a crime are located in a particularized place. A search

requires either a search warrant or a constitutionally approved exception to the

warrant requirement, e.g., automobile exception, exigency, search incident to a

lawful arrest, plain view.

F. Entry into a home to conduct a search or an arrest: Police may enter a home

to conduct a search or an arrest in only four circumstances, as follows:

1. Consent: Individuals have a reasonable expectation of privacy in their

home. Because constitutional rights may be waived, individuals may give

consent to enter, provided the consent is voluntarily given, measured

under a totality of the circumstances.

2. Search warrant: Police may search a home based on a search warrant for

the home, limited only by reasonableness, e.g., search warrant for a stolen

television would be unreasonable in the sock drawer.

3. Arrest warrant: Police may enter an arrestee’s home to arrest if there is

(a) an arrest warrant for the arrestee, and (b) reasonable cause to believe

that the arrestee is at home at that time. Assuming a valid arrest, police

may make a cursory “protective sweep” of the premises if the police have

reasonable suspicion that (a) the arrestee has a confederate, (b) the

confederate is present, and (c) confederate is armed and dangerous. This

cursory sweep is limited to places where a confederate may hide.

4. Exigency or “hot pursuit”: Police may enter a home if (a) there is

probable cause to believe that a fleeing felony or evidence is present, and

(b) the arrestee or the evidence will be gone if the police take time to

obtain a warrant.

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II. Police-citizen encounters implicating the Fifth Amendment privilege against

compelled self-incrimination: The Fifth Amendment privilege against compelled self-

incrimination places limitations on police obtaining written and oral statements or

confessions from individuals in both pre-arrest and post-arrest scenarios.

A. Voluntariness under a totality of circumstances: For a statement to be

admissible, the police must comply with the “voluntariness” standard when

obtaining a statement in any pre-arrest or post-arrest scenario. An otherwise

voluntary statement may not be voluntary if a person who is arrest without a

warrant is not promptly presented to a judicial officer.

B. Miranda rights: For a statement to be admissible, Miranda v. Arizona and its

progeny requires that an arrestee be advised that (1) the arrestee has a right to

remain silent, (2) anything said will be used against the arrestee, (3) the arrestee

has the right to an attorney present during questioning, and (4) the police will

provide an attorney if the individual cannot afford an attorney. Miranda rights

only apply during police custodial interrogation, meaning when the individual is

being subjected to questioning or its functional equivalent while under arrest.

C. Maryland common law: Even if a statement complies with voluntariness and

Miranda, under Maryland’s common law, the statement is inadmissible if given in

response to police promises or inducements.

III. Police-citizen encounters implicating the Sixth Amendment right to counsel &/or the

Due Process Clause during identifications: The Sixth Amendment right to counsel and

the Fourteenth Amendment Due Process Clause (against the states) and the Fifth

Amendment Due Process Clause (against the federal government) place limitations on

police obtaining identifications, e.g., photo arrays, line-ups, show-ups, both during pre-

charging and post-charging. To be admissible, the identification must comply with the

Sixth Amendment and Due Process Clause, as applicable.

A. All identifications: When an individual is identified (whether or not formally

charged and whether or not during a critical stage), the identification procedure

must be reliable, under a totality of the circumstances, as required by the Due

Process Clause.

B. Identifications during critical stages after formal charging or during a trial-

like confrontation: When an individual is identified, during a critical stage (non-

videotaped line-up or show-up), after formal charges have been filed, or during a

trial-like confrontation (an adversarial preliminary hearing), the identified person

is entitled not only to reliability, but also entitled, under the Sixth Amendment

right to counsel, to have counsel present during the identification.

IV. Initial appearance (non-adversarial preliminary hearing) before a District Court

commissioner: The Fourth Amendment prohibition against unreasonable searches and

seizures requires an individual who is arrested without a warrant to be taken before

judicial officer promptly. Under the Fourth Amendment, presentment is presumptively

prompt if made within 48 hours after arrest. Under Maryland law, individuals who are

arrested, either pursuant to a warrant or warrantless, must be taken before District Court

commissioner as soon as practicable, and, in no event, later than 24 hours after arrest.

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Thus, any period of time could be deemed not to be prompt, and more than 24 hours is

always deemed to be not prompt. Under federal law, individuals who are arrested, either

pursuant to a warrant or warrantless, must be taken before a federal magistrate judge

without unnecessary delay. Six hours is always prompt, and any period of time thereafter

could be deemed to be not prompt. If the police obtain a statement during a period of

unnecessary delay, it may be involuntary and thus inadmissible, with great weight being

given toward involuntariness if the delay was deliberate and for the purpose of obtaining

a statement. Presentment before a judicial officer is a non-adversarial preliminary

hearing with no right to counsel. Judicial officer makes determinations:

A. Probable cause to arrest: Judicial officer determines whether there is probable

cause for the arrest and continued detention of the arrestee (in same manner that a

neutral and detached magistrate decides whether to issue an arrest warrant). If

there is no probable cause, the Fourth Amendment requires that the illegal arrest

be terminated and the individual be released. If there is probable cause, the

judicial officer proceeds to next steps.

B. Notification of pending charges: The judicial officer informs the arrestee of the

charges for which the arrestee has been arrested.

C. Pre-trial release determination: The judicial officer determines whether the

individual is entitled to pre-trial release. For most offenses with a penalty less

than life, there is a presumption of pre-trial release, which can be rebutted if there

is a risk that the arrestee (1) will flee and not appear, as required; or (2) poses a

threat to the victim or other innocent people. If eligible for pre-trial release, the

judicial officer determines release status and conditions. About half of all

released arrestees are (1) released on personal recognizance, meaning a promise

(a) to obey all laws and conditions of pre-trial release, and (b) to appear in court

when required; or (2) released to the custody of another person, e.g., juvenile

released to the custody of parents. About half of all released arrestees are

released by posting bond, supported by a pledge of real property, cash posted with

a court, or a pledge by corporate surety, i.e., bail bondsman.

D. Adversarial preliminary hearing: In Maryland, the judicial officer informs an

arrestee who is arrested for a felony (but not a misdemeanor) that if arrestee has

not been, or is not, indicted by a grand jury, the arrestee is entitled to an

adversarial preliminary hearing, but only if requested within ten days. The

adversarial preliminary hearing is to determine whether there is probable cause to

formally charge the arrestee and require the arrestee to stand trial.

E. Right to counsel: The judicial officer informs the arrestee of the right to counsel

(subsequent to the initial appearance) and the advantages of counsel, even if the

Defendant plans on pleading guilty.

V. Adversarial preliminary hearing before a District Court judge: A Defendant who is

arrested for a felony, but not indicted, is entitled to adversarial preliminary hearing, in

which Defendant is entitled to counsel, for purpose of determining whether there is

probable cause to require the Defendant to stand trial on those charges, provided the

Defendant requests an adversarial preliminary hearing within ten days after appearance

before the Court Commissioner. The Defendant may not put on evidence, but may cross-

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examine the State’s evidence. If there is no probable cause, the charges are dismissed,

without prejudice, and may be brought later because jeopardy has not attached. If there is

probable cause, the State may file charges within 30 days.

VI. Charging process: A charging document is prepared by a prosecutor or the police,

alleging either that an adult committed one or more crimes (felonies, misdemeanors, or

both) or that a juvenile committed one or more non-criminal delinquent acts. In

Maryland, there must be an appropriate matching of the charging document and the

criminal subject matter jurisdiction. For an adult, the State files charges in the Circuit

Court or District Court, based on exclusive jurisdiction, concurrent jurisdiction, right to a

jury trial, and/or juvenile jurisdiction.

A. Grand jury indictment: The prosecutor may present felony charges ex parte to a

grand jury, meaning that neither the Defendant nor counsel is present. A grand

jury formally charges by issuing a “true bill” criminal charge, i.e., indictment,

which can only be litigated in Circuit Court.

B. Criminal information: The prosecutor may prepare and file criminal charges in

a criminal information for felonies litigated in Circuit Court and for

misdemeanors litigated in either District Court or Circuit Court.

C. Statement of charges: A police officer prepares a statement of charges in

connection with each arrest. This document may be used by a prosecutor as the

charging document, provided the charges include only District Court

misdemeanors.

D. Citation: A police officer may prepare and issue a citation for traffic

misdemeanors, which serve as the charging document in District Court.

E. Juvenile delinquency petition: A prosecutor may prepare and file a juvenile

delinquency petition, alleging delinquent acts committed by juvenile, which if

juvenile jurisdiction is not waived, is litigated in the Circuit Court, sitting as a

juvenile court. All individuals over age 18 are adults. Although most individuals

under age 18 are juveniles, depending on age of the juvenile and the nature of

charges, a juvenile may be prosecuted as an adult as young as age 14.

VII. Initial appearance in Circuit Court: If subject matter jurisdiction is in the Circuit

Court, during the initial appearance in Circuit Court, the Defendant enters plea of

“guilty” or “not guilty.” Occasionally, there is a plea of nolo contendere or not

criminally responsible (NCR) by reason of insanity. Initial appearance in Circuit Court

commences the “clock” for other events, e.g., discovery requirements, pre-trial motions,

non-constitutional speedy trial analysis.

VIII. Discovery: Discovery is the pre-trial process of each side obtaining and providing, as

required, certain information and evidence from or to the other side.

A. Constitutional discovery of “Brady” material: The Due Process Clause

requires the prosecutor to provide to the defense, even if not requested, all (1)

exculpatory evidence that, if believed, would be favorable to the Defendant; (2)

mitigating evidence that, if believed, may result in guilt to a lesser offense or may

result in a lesser sentence; and (3) evidence and information that may be used to

impeach prosecution witnesses. Impeachment material includes prior

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untruthfulness, convictions, pending charges, probationary status, agreements

between the prosecutor and witnesses, materially inconsistent witness oral or

written statements, witness medical or psychiatric condition that may impair

ability to testify accurately, negative polygraph results of witnesses, and the

failure of a witness to identify the Defendant or the Co-Defendant. Failure to

comply with Brady requirements may invalidate a conviction if the failure caused

prejudice to the Defendant.

B. Non-constitutional discovery: Under court rules, both prosecution and defense

are required to provide to the other side, even if not requested, certain

information. Failure to comply with discovery requirements may make the

evidence inadmissible.

1. Automatic disclosure by the State: The State must automatically

provide the following to the Defendant:

a. Defendant & Co-Defendant written & oral statements

b. Criminal record of Defendant & Co-Defendant, including

pending charges & probationary status

c. Other crimes or bad acts evidence of Defendant: Other crimes

and bad acts of the Defendant include evidence of other crimes,

wrongs, or acts committed by the Defendant that the State intends

to introduce into evidence.

d. Names & addresses of State witnesses & alibi rebuttal

witnesses

e. Witness statements

f. Searches, seizures, surveillance, & pre-trial identifications

g. Names & addresses of expert witnesses & their opinions,

findings, & procedures used

2. Automatic disclosure by the Defendant: The Defendant must

automatically provide the State with the names and addresses of defense

witnesses.

a. Fact witnesses & their statements

b. Character witnesses for veracity or for peace & good order

c. Alibi witnesses

d. Names & addresses of expert witnesses & their opinions,

finding, & procedures used

C. Bill of particulars: The Defendant may request a bill of particulars to

supplement the charging document. If the prosecution charges through a statutory

short-form indictment, the Defendant is entitled to bill of particulars. Otherwise,

whether to require a bill of particulars is within the court’s discretion.

IX. Mandatory notice from the State & mandatory motions from the Defendant

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A. Prosecutorial mandatory notice: Some sentencing options, e.g., recidivism

sentencing, enhanced sentencing, death penalty, life without parole, require the

State to provide timely written notice to the Defendant.

B. Defense mandatory motions: If the Defendant wishes to make certain

challenges to the State’s case, the Defendant must file timely pre-trial motions.

These issues are litigated pre-trial, before the court, without a jury.

1. Defective charging document: The Defendant may, at any time and at

any level (even on appeal), challenge the charging document’s failure to

provide subject matter jurisdiction or charge a crime. All other charging

document defects, e.g., improper personal jurisdiction or venue, violation

of the Fifth Amendment prohibition against double jeopardy, must be

raised in a motion to dismiss.

2. Unconstitutionally seized evidence: If physical evidence, statements,

and/or identifications were obtained unconstitutionally, their admissibility

must be challenged by a motion to suppress. Most typically, the burden of

production is on the Defendant, and, most typically, the burden of

persuasion is on the State by a preponderance of the evidence. If the issue

is whether a statement was involuntary, the prosecution also has a burden

of persuasion to the jury beyond a reasonable doubt.

3. Severance: If counts and/or Defendants were improperly joined, joinder

must be challenged by a motion to sever..

X. Plea bargaining & guilty pleas: At least 85% of criminal cases are resolved by a two-

party or three-party plea agreement, i.e., a “constitutional contract.”

A. Types of plea agreements

1. Standard guilty plea: In a standard guilty plea, the Defendant pleads

guilty and admits guilt.

2. Alford guilty plea: Under North Carolina v. Alford, the Defendant may

plead guilty without admitting guilt.

3. Not guilty with an agreed statement of facts: Under a plea of “not

guilty with an agreed statement of facts,” the Defendant pleads “not

guilty,” but proceeds on agreed statement of facts as if guilty.

4. Nolo contendere plea: Under a plea of nolo contendere, the Defendant

does not plead guilty, and is not found guilty, but the Defendant agrees not

to contest the charges, allowing the court to treat the Defendant as if

guilty.

B. Parties to plea agreements

1. Two-party American Bar Association (ABA) approved plea: A two-

party ABA approved plea agreement is an agreement between the

prosecution and the defense, presented as a non-binding recommendation

to the court.

2. Three-party ABA approved plea: A three-party ABA approved plea

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agreement is an agreement in which the prosecution and the defense

present a binding plea agreement to the court. If the court is unwilling to

“bind” itself, the parties are permitted to take their plea agreement to

another court.

C. Terms of plea agreements: Negotiated terms may include anything that is not

against public policy and usually includes one or more of the following:

1. Offenses: Plea agreements almost always include those offenses or counts

to which the Defendant is pleading guilty, with other charges being (a)

dismissed (nolle prosequi (called nol pros)), (b) placed on an inactive

docket (stet), or not charged at all.

2. Cooperation by the Defendant: Sometimes, plea agreements include

cooperation by the Defendant, e.g., testifying, working undercover.

3. Disposition: Plea agreements usually include the disposition or sentence,

e.g., period of incarceration, terms and length of probation, restitution,

community service.

XI. Trial rights

A. Right to counsel

1. Fifth Amendment right to counsel: The Defendant has a Fifth

Amendment right to counsel during custodial interrogation under Miranda.

2. Sixth Amendment right to counsel: The Defendant has a Sixth

Amendment right to counsel for all critical stages after the commencement

of formal judicial adversarial proceedings (and during an adversarial

preliminary hearing trial-like confrontation) through sentencing, if the

Defendant is charged with a felony or charged with a misdemeanor for

which the Defendant faces potential incarceration.

3. Fifth & Fourteenth Amendment Equal Protection Clause right to

counsel: Equal protection guarantees that indigent Defendants have the

right to counsel and the right to a transcript on a first appeal of right. For

Defendants in a state criminal justice system, this is based on the

Fourteenth Amendment Equal Protection Clause. For Defendants in the

federal criminal justice system, this is based on equal protection through

the Fifth Amendment Due Process Clause.

4. Fifth & Fourteenth Amendment Due Process Clause right to counsel:

The Due Process Clause guarantees that indigent Defendants have the

right to counsel for violation of probation and revocation of parole

proceedings if the case is complex or if it involves a constitutional

question. For Defendants in a state criminal justice system, this is based

on the Fourteenth Amendment Due Process Clause. For Defendants in the

federal criminal justice system, this is based on the Fifth Amendment Due

Process Clause.

5. Maryland statutory right to counsel: Defendants are entitled to counsel,

by statute, for (a) misdemeanors with potential fine in excess of $500, and

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(b) for a first post conviction proceeding.

B. Right to speedy trial

1. Sixth Amendment right to speedy trial: To determine if the Defendant

has been denied the Sixth Amendment right to speedy trial, consider (a)

the length of the delay, (b) the reasons for delay, (c) whether the

Defendant demanded a speedy trial, and (d) the prejudice to Defendant by

the delay. It probably takes at least one year of delay to even trigger a

speedy trial analysis and three years of delay to violate the right to speedy

trial.

2. Maryland right to speedy trial: By statute and court rule, the Defendant

is entitled to commencement of trial no later than 180 days after the first

appearance of the Defendant or the first appearance of counsel in Circuit

Court, unless (a) the administrative judge postpones the trial for good

cause shown, or (b) the prosecution dismisses the charges for legitimate

reason (even if denied a postponement by the administrative judge) and

then re-charges.

C. Right to trial by jury

1. Sixth Amendment right to trial by jury: The Sixth Amendment right to

a jury trial applies if there is potential incarceration exceeding six months

on any one count in a charging document. A jury in a criminal case must

be at least six jurors, but does not require unanimity, i.e., juries of 10-2, 9-

3, and 6-0 were held constitutional, but juries of 5-1 and 5-0 were held

unconstitutional. The jury venire or jury pool must include a fair cross-

section that does not exclude large distinctive groups, i.e., race, ethnicity,

national original, religion, gender. Potential jurors must answer question

under oath (voir dire). Based on those answers, the Defendant request that

the court strike “for cause” potential jurors who may be unable to render a

verdict based solely on the evidence. The Defendant may exercise

peremptory strikes (strikes not “for cause”), as provided by statute or court

rule. However, because of the equal protection right to serve on a jury,

neither side may exercise peremptory strikes based solely on a potential

juror’s membership in a large distinctive group.

2. Maryland right to trial by jury: Maryland’s common law entitles the

Defendant to a jury trial in Circuit Court if there is potential incarceration.

There are no jury trials in District Court but, if the Defendant is subject to

potential incarceration in excess of 90 days on any given count, the

Defendant may make a jury trial prayer, which divests the District Court

of jurisdiction and transfers the case to the Circuit Court. In Maryland, a

jury requires 12 jurors and unanimity, unless there is a knowing and

intelligent waiver.

D. Right to a fair trial: The Sixth Amendment requires a fair trial.

1. Change of venue: If the jury pool has been tainted or biased by the

amount and content of pre-trial publicity, and if voir dire is insufficient to

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resolve the issue, a change of venue may be required to protect the

Defendant’s right to a fair trial.

a. Non-capital cases: The Defendant may file a motion for a change

of venue, asserting the inability to obtain a fair and impartial trial

in that Circuit. The court conducts a hearing to determine whether

to transfer the case to another venue. If the court determines that

the Defendant is entitled to a transfer to a different venue, the

Circuit Administrative Judge determines the county to which the

case will be transferred. Voir dire is usually sufficient to ensure a

fair and impartial jury, notwithstanding pre-trial publicity. The

Defendant has the burden of showing prejudice so severe that voir

dire is insufficient to ensure a fair and impartial trial.

b. Capital cases: In Maryland, in a case in which the State seeks the

death penalty, the State or the Defendant may file, under oath, an

assertion of the inability to obtain a fair and impartial trial in that

Circuit. The trial court is required to grant one change of venue,

and the Circuit Administrative Judge determines the county to

which the case will be transferred. After the one “automatic”

transfer, any subsequent transfer request is evaluated under the

standard for non-capital cases.

2. Right to an impartial jury: Voir dire is designed to prevent a biased

jury. If the jury is biased or commits juror misconduct, the Defendant

should make a motion for a mistrial.

a. Voir dire: Voir dire questioning, with answers under oath, is the

primary mechanism to protect the right to a fair and impartial jury.

Although the State and the Defendant may propose voir dire,

question selection is within trial court’s discretion. An impartial

jury is not required to be free of all pre-conceived notions of guilt

or innocence, but must be willing to set aside pre-conceived

notions and render a verdict based solely on the evidence. If the

Defendant identifies potential bias that may interfere with the

ability of a juror to fairly and impartially decide the case, the court

is required to ask appropriate voir dire questions.

(1) Race, ethnicity, culture, or religion

(a) Sixth Amendment: There is a right to bias

questioning. There is no constitutional right to

racial bias questioning, unless it is a violent crime

and race permeates the case and is not merely

collateral. However, there is a right to racial bias

questioning in interracial murder cases seeking the

death penalty.

(b) Maryland: If there is an issue of bias based on

race, ethnicity, culture, or religion, the Defendant is

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entitled to a voir dire question.

(2) Death penalty: The Defendant has a right to ask potential

jurors whether they would automatically impose the death

penalty. The State has a right to ask potential jurors

whether opposition to death penalty would substantially

impair juror performance at sentencing.

(3) Violations of drug laws: In Maryland, in a drug case, the

Defendant is entitled to a voir dire question on whether the

juror has strong feelings regarding drug laws.

(4) Sexual assault against a minor: In Maryland, in cases of

sexual assault against a minor, the Defendant is entitled to a

voir dire question on whether that charge would affect the

juror’s ability to render an impartial verdict.

(5) Statutory qualifications: In Maryland, the Defendant is

entitled to a voir dire question on juror eligibility, e.g.,

citizenship, convictions, age.

b. Communication between jurors & witnesses: Communication

between jurors and witnesses is presumptively prejudicial,

mandating reversal, unless the State overcomes the presumption of

prejudice. Casual and unintentional contact between a juror and a

witness will likely not constitute a presumption of prejudice.

c. Juror misconduct: Juror misconduct, such as refusal to

participate in deliberations, may deprive the Defendant of a fair

and impartial jury.

d. Court interference with jury deliberations: Solicitation by the

trial court of jury’s opinion on the probability of reaching a

unanimous verdict may be coercive and violate the right to a fair

and impartial jury.

3. Right to an impartial judge: If the judge is biased, commits judicial

misconduct, or a neutral person would believe that the judge may be

biased, and the Defendant learns prior to trial, the Defendant should make

a motion for recusal, i.e., for the judge to voluntarily withdraw from the

case. If the issue is not discovered until after the trial starts, the Defendant

should make a motion for a mistrial.

a. Monetary interest in outcome: The right to an impartial judge is

violated if the judge has direct, personal, and/or pecuniary interest

in favoring one side.

b. Personal feelings of judge: The judge is required to act in an

impartial and courteous manner because the judge’s opinions and

statements will likely significantly impact the jury’s verdict.

However, unless judge’s words or actions adversely influenced the

jury, conducting the trial in an impatient manner does not justify

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reversal.

c. Improper interjection into the case: Interruptions, premature

rulings, sua sponte rephrasing of questions, or excessive and

improper questioning of witnesses, by the trial court, may violate

the Defendant’s right to a fair trial. The court should:

(1) Err toward non-intervention

(2) Ask questions only to clarify

(3) Let the attorneys try the case

(4) Not influence the jury’s view of the evidence: Constant

inquisition of witnesses is contrary to the trial court’s role

as an impartial arbiter and may influence the jury’s view of

the evidence.

(5) Not express an attitude toward the Defendant, the

witnesses, or the theory of the case

d. Arresting or charging defense counsel with contempt in the

jury’s presence: If the trial court, in the jury’s presence, causes

defense counsel to be arrested or threatened with, or held in,

contempt, that may portray defense counsel in such a negative light

as to deprive the Defendant of a fair trial. If the judge who

assesses a contempt penalty is the same judge that was insulted by

the Defendant, due process may require another judge to preside

over the contempt proceeding. Comments by the trial court that

imply that defense counsel was dishonest, in the presence of the

jury, may deny the Defendant of the right to a fair trial.

e. Remarks about a witness in the jury’s presence: The trial court

may deny the Defendant’s right to fair trial by declaring a defense

witness to be hostile witness in the presence of the jury.

f. Implying that the Defendant is guilty

g. Recusal of the judge

(1) Judicial Code of Ethics: The Judicial Code of Ethics

requires a judge to recuse or disqualify himself or herself if

the judge (a) has bias or prejudice toward the Defendant,

(b) has personal knowledge of the facts in dispute, (c)

served as counsel for a material witness, (d) has substantial

interest in the outcome of the case, or (5) is related by

blood or marriage to a party or counsel.

(2) Maryland: In Maryland, the Judicial Code of Ethics

requires the judge to recuse or disqualify himself or herself

when there is an appearance of partiality or interest, as

determined by whether a reasonable person, knowing all

the facts, would recuse himself or herself.

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h. Right to the same judge throughout the trial: The Defendant

generally has the right to the same judge throughout the trial.

i. Court conducting its own investigation of the case: The trial

court may not conduct its own investigation of the case.

4. Sequestration of witnesses: In almost every case, one side makes a

motion to sequester witnesses (known as the “rule on witnesses”),

preventing them from being in the courtroom prior to their testimony. If

there is a violation of the sequestration rule, there should be a motion to

preclude the witness from testifying. If the witness already testified, there

should be motion to strike the testimony. The trial court may not exclude

(a) the Defendant, (b) an expert who will render an opinion based on the

evidence, (c) the victim of a crime of violence or, if a murder victim, the

victim’s representative. Neither party nor attorney may disclose to an

excluded witness the nature, substance, or purpose of the testimony,

exhibits, or other evidence introduced.

5. Restraints & security: The right to a fair trial requires a finding of guilt

based solely on the evidence at trial and not based on suspicion,

indictment, custody, or other circumstances that could rebut the

presumption of innocence. Restraints on the Defendant and security

measures used in the courtroom, if viewed by the jury, may deny the

Defendant’s right to a fair trial.

a Essential state interest: In Maryland, essential state interests may

justify physically restraining the Defendant. These include (1)

preventing escape, (2) protecting those in the courtroom, and (3)

maintaining order. Physical restraint is impermissible unless

essential state interests outweigh prejudice to the Defendant.

b. Outside the courtroom & not in the view of the jury: Custodial

officials are free to impose reasonable restraints on the Defendant

and establish reasonable courtroom security. However, if security

measures are observable by the jury, or in close proximity to the

Defendant, that may prejudice the Defendant and violate the right

to a fair trial.

(1) Shackling or gagging: Shackling or gagging the

Defendant in the courtroom in view of the jury is so

inherently prejudicial that it can only be justified by

essential state interests.

(2) Disruptive Defendant: The trial court may remove, bind

and gag, and/or shackle a disruptive Defendant after fair

warning..

(3) Prison clothes: Forcing the Defendant, over objection, to

appear before the jury in prison clothes is inherently

prejudicial, and no essential state interest is served.

(4) Officers present: The mere presence of security guards in

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the courtroom is not prejudicial, if they are placed away

from the Defendant so that jurors will not draw an adverse

inference of concern about the Defendant.

(5) Spectator’s conduct: It does not violate the right to a fair

trial if the victim’s family sits in front row, wearing buttons

with images of the victim.

6. Prior bad acts or other crimes evidence: Maryland provides that

evidence of the Defendant’s other crimes, wrongs, or acts is inadmissible

to prove “bad character.” To admit evidence of prior bad acts or other

crimes, the State must satisfy a three-pronged conjunctive test.

a. First prong: The evidence must come within “MIMIC” acronym

of motive, opportunity, intent, preparation, common scheme or

plan, knowledge, identity of crimes, or absence of mistake or

accident, e.g., a Defendant on trial for murder of a person who was

about to testify in unrelated case that the Defendant assaulted him.

b. Second prong: If there is evidence of a prior conviction, bad

conduct was already found beyond a reasonable doubt. If it is

prior bad acts that did not result in conviction, the trial court must

be persuaded, by clear and convincing evidence, outside the

presence of the jury, that the Defendant committed bad acts.

c. Third prong: The trial court must find that probative value of

“other crimes” evidence substantially outweighs prejudice to the

Defendant.

d. Sexual propensity exception: There is a sexual propensity

exception to the “other crimes evidence” rule. In a prosecution for

a sex offense, the State may introduce evidence of prior similar

conduct if between the Defendant and the same alleged victim.

e. Impeachment exception: A Defendant who testifies may be

cross-examined about admissible prior convictions, provided the

trial court instructs the jury that it may only consider prior

convictions to determine credibility and not to determine guilt.

Moreover, if the Defendant offers evidence of good character and

has a criminal record, the State may impeach the character witness

by asking whether the character witness knows of the Defendant’s

past criminal activity.

f. Mentioning a former trial on the same charge: When the jury

learns of Defendant’s prior conviction, on the same charges, that

information is so prejudicial that it denies a fair trial and cannot be

ameliorated with a curative jury instruction. However, merely

mentioning a “former trial,” even if for the same offense, without

an indication of a conviction, is not error.

7. Improper prosecutorial remarks: The prosecutor may not use improper

remarks during opening statement, cross-examination, or closing

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argument.

a. Closing argument: The prosecutor is granted broad discretion in

closing argument. Whether the prosecutor goes beyond

permissible comment during closing argument depends on whether

the jury was misled or influenced in a way that was prejudicial to

the Defendant. Courts look to the severity of the remarks,

measures taken to cure potential prejudice, and the weight of the

evidence against the Defendant.

(1) Prosecutorial remarks are limited to the evidence

adduced at trial & reasonable inferences

(2) The prosecutor may attack the credibility of defense

witnesses: The prosecutor may attack the credibility of

defense witnesses and may counter defense attacks on the

credibility of State witnesses.

(3) The prosecutor may not vouch for the credibility of

State witnesses: The prosecutor may not “vouch” for the

credibility of State witnesses by placing the prestige of the

State behind its witnesses and/or personally assure the jury

of the veracity of State witnesses. “Vouching” includes

telling jury that (a) police have motive to testify truthfully

because an officer would not risk his or her job by

committing perjury, and (b) an officer’s testimony is more

credible by virtue of being a police officer.

(4) The prosecutor may not appeal to prejudice: The

prosecutor may not appeal to prejudice of race, gender, or

class.

(5) The prosecutor may not reference the Defendant’s right

to appeal or the possibility of probation or parole: The

prosecutor may not reference the Defendant’s right to

appeal or the possibility of probation or parole, because that

makes it easier for the jury to find guilt.

(6) Response to defense counsel comments: Even

inappropriate prosecutorial comments are not reversible if

they are made in response to defense closing argument.

(7) Measures taken to cure potential prejudice & weight of

evidence: Because juries are deemed to follow

instructions, potential prejudice may be cured by the trial

court reprimanding the prosecutor, informing jury that the

comment was improper, and/or giving the jury an

instruction emphasizing the argumentative nature of closing

argument and the role of the jury in weighing the evidence

and assessing the credibility of witnesses.

b. Opening statement: The prosecutor has broad latitude in the

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opening statement. The prosecutor may not comment on

inadmissible facts or facts that will not be proven during the trial.

Improper prosecutorial comments during the opening statement are

reversible only if the Defendant can show that the prosecutor acted

in bad faith or there was substantial prejudice.

c. Scope of cross-examination of the Defendant: Cross-

examination is limited to evidence brought out during direct

examination. The prosecutor may not invade the Defendant’s

attorney-client privilege through cross-examination regarding

content and/or timing of attorney-client communications.

8. Protective orders: The trial court may, at the State’s request, for good

cause shown, grant a protective order that prohibits the Defendant from

learning the names and addresses of witnesses, based on witness safety.

The trial court may limit the Defendant’s access to the names and

addresses of State witnesses, but may not limit defense counsel’s access to

the witnesses. Protective order factors include (a) the significance of the

witnesses to the prosecution’s case, (b) evidence of intimidation that

significantly interferes with the State’s ability to prosecute, and (c)

reasonable fear that the Defendant or others will coerce witnesses not to

testify

E. Right to a public trial

1. The Defendant’s Sixth Amendment right to a public trial: The

Defendant has a Sixth Amendment right to ensure that the trial is open to

the public at all stages subsequent to grand jury proceedings, unless there

are “higher values” of witness or juror fear or embarrassment, which

permit limited closure.

2. The public’s First Amendment right to a public trial: The press and

the public have a First Amendment right to ensure that the trial is open to

the public at all stages subsequent to grand jury proceedings, subject to

legitimate time, place, and manner restrictions.

3. Maryland’s crime victims’ constitutional amendment: Md. Decl.

Rights art. 47 ensures that certain crime victims have a constitutional right

to notice and opportunity to be present and to be heard.

F. Right to confrontation: The Sixth Amendment guarantees the defendant the

right to confrontation.

1. Face-to-face confrontation: The right to confrontation guarantees the

right to face-to-face confrontation, except in child abuse cases. In child

abuse cases, the trial court may place a child witness in another location,

having testimony broadcast in through one-way or two-way mirrors. The

testimony must be live and subject to cross-examination.

2. Confrontation of hearsay: Hearsay statements are out-of-court

statements that are offered for the truth of the matter asserted by a

declarant who is not testifying live.

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a. Testimonial hearsay: Testimonial hearsay occurs when the

declarant’s out-of-court statement was made to a government

official for the purpose of gathering information for use in a

criminal prosecution, e.g., police interview with a citizen when

investigating a crime, a government social worker interviewing a

crime victim, a chemist report of the content of suspected drugs, an

autopsy report. Testimonial hearsay is inadmissible unless

presented live, subject to cross-examination.

b. 911 calls: Statements made during 911 calls are testimonial, and

thus inadmissible, if they are made during police-declarant

interaction, under circumstances indicating that the primary

purpose is not to obtain police assistance in ongoing emergency,

but rather for the police to establish past events relevant to a

criminal case. On the other hand, statements made during 911

calls are not testimonial, and thus admissible, if made during

police-declarant interaction, under circumstances indicating that

the primarily is to obtain police assistance in ongoing emergency.

c. Witness intimidation & “forfeiture by wrongdoing”: The

Defendant may not commit a wrong and then complain about a

denial of constitutional rights. Thus, the Defendant cannot murder

the witness who will testify against him and then complain about

the State’s failure to produce the witness live, subject to cross-

examination. Wrongdoing is conduct that is designed to, and does,

procure witness unavailability through violence, intimidation,

coercion, pressure, persuasion, control, wrongful non-disclosure of

information, collusion, or instructions to exercise the privilege

against compelled self-incrimination or the marital privilege.

d. Non-testimonial hearsay: If a hearsay statement (1) is not

testimonial, and (2) is within a “firmly rooted” exception to the

rule against hearsay, the statement is presumed to have adequate

indicia of reliability, and thus satisfies the Confrontation Clause

and is admissible. If a hearsay statement (1) is not testimonial, and

(2) is not within a “firmly rooted” exception to the rule against

hearsay, the statement is presumed unreliable, and thus violates the

Confrontation Clause and is inadmissible, unless there were

“particularized guarantees of trustworthiness” in the manner in

which the statement was created. Examples of hearsay that is not

testimonial include business records, statements made in

furtherance of a conspiracy, and statements made to medical

personnel for medical purposes.

G. Right to compulsory process: The Sixth Amendment right to compulsory

process guarantees the Defendant the right to call any witness, unless the witness

has a testimonial privilege or is an alibi witness that the defense intentionally

failed to disclose to the prosecution.

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H. Due Process Clause: As to (1) each element of each offense charged, and (2) the

criminal agency of the Defendant, the prosecution is required, under the

Fourteenth Amendment Due Process Clause in state criminal cases, and under the

Fifth Amendment Due process Clause in federal criminal cases, to satisfy the

burden of production and the burden of persuasion. The burden of production

requires a prima facie case of sufficient evidence to be entitled to present the case

to the fact finder (jury or judge). Whether the prosecution has met its burden of

production is “tested” through a motion for judgment of acquittal at the end of the

prosecution’s case-in-chief. The burden of persuasion requires persuading the

fact finder of guilt beyond a reasonable doubt, which is “tested” through the

verdict, following jury instructions.

XII. Post-trial motions: If the Defendant is found guilty, the Defendant may file a motion for

a new trial (1) in the interests of justice, e.g., trial court errors, the verdict being against

the weight of the evidence; (2) based on newly discovered evidence, or (3) based on

fraud, mistake, or irregularity.

XIII. Sentencing: Sentencing issues include the following:

A. Sentencing authority: In Maryland and most jurisdictions, the sentencing

authority in a non-death penalty case is almost always the trial judge and not the

jury. In a death penalty case, the Defendant chooses whether to be sentenced by a

judge or a jury.

B. Mandatory or discretionary sentencing: By statute, a sentence may be

mandatory or discretionary at both the level of (1) imposition of the sentence,

and/or (2) execution of the sentence.

C. Types of sentence: Sentences include incarceration, home detention, drug and

alcohol treatment, probation after judgment, probation before judgment, fines,

restitution, and/or community service.

D. Sentencing enhancements: Under some circumstances, the legislature provides

permissive or mandatory sentencing enhancements, typically based on either (1)

prior convictions for the same offense, or (2) circumstances of that offense.

E. Parole eligibility: Some sentences require, and some permit, incarceration with

parole or without parole.

F. Sentencing factors & a pre-sentence investigation (PSI) report: Courts should

make the sentence fit both the offense and the offender. Thus, a sentencing judge

may consider any information that is relevant to the offense and to the offender,

meaning relevant to the crime and the criminal. If the prosecution plans to

present negative information about the Defendant, e.g., prior convictions and prior

bad acts, the prosecution must provides that information to the Defendant prior to

sentencing, with sufficient time for the Defendant to investigate the information.

Toward this end, courts usually order a PSI about the Defendant’s background.

G. Victim impact statements (VIS): Md. Decl. of Rights art. 47 provides “victims

rights,” which includes the victim’s presentation, in writing and/or orally, of a

VIS to the sentencing judge.

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H. Sentencing guidelines: Most jurisdictions, including Maryland, have sentencing

guidelines, which are designed to create some level of uniformity in sentencing.

Sentencing guidelines must be discretionary, and not mandatory, unless that

which supports a sentencing enhancement was pleaded by the prosecution, was

supported by evidence at trial, and was found by the finder of fact to exist beyond

a reasonable doubt.

I. Capital offenses: Thirty-eight states (including Maryland) and the federal

government have a death penalty statute. The Eighth Amendment prohibition

against cruel and unusual punishment limits the imposition of the death penalty to

homicide cases. In Maryland, the death penalty is limited to first degree murder.

In death penalty cases, the Defendant is entitled (1) to a bifurcated proceeding of

guilt or innocence and then sentencing, (2) to select sentencing by a judge or a

jury, (3) to require the prosecution to persuade the sentencing authority of one or

more aggravating circumstances beyond a reasonable doubt, (4) to present all

relevant mitigating factors, (5) to require the prosecution to persuade the

sentencing authority, by a preponderance of the evidence, that the aggravating

circumstances outweigh the mitigating circumstances, and (6) to an automatic

appeal. In Maryland, all appeals of right go from the Circuit Court to the Court of

Special Appeals, except death sentences, which are automatically reviewed by the

Court of Appeals.

J. Sentencing motions filed after the original sentence: Maryland provides for

various sentencing motions to be filed after imposition of the original sentence.

1. Application for review of sentence by a three-judge panel: The

Defendant may file an application for review of sentence by a three-judge

panel within 30 days after sentencing. Although the sentencing judge may

not serve on the review panel, the three-judge panel may confer with the

sentencing judge and may decrease the sentence, increase the sentence, or

leave the sentence unchanged.

2. Motion for modification or reduction of sentence: The Defendant may

file a motion for modification or reduction of sentence within 90 days after

sentencing. Because sentencing judges may hold the motion sub curia for

five years, most Defendants request no ruling until the Defendant files an

amended motion. The sentencing judge may deny the motion without a

hearing, but may only grant the motion following a hearing. The

sentencing judge may decrease the sentence or leave it unchanged, but

may not increase the sentence.

3. Motion to correct illegal sentence: The Defendant may file a motion to

correct illegal sentence at any time. The sentencing judge may deny the

motion without a hearing, but may only grant the motion following a

hearing.

K. Violation of probation: If the sentencing judge places the Defendant on

probation, whether probation after judgment or a probation before judgment, and

the Defendant fails to comply with probation conditions, the sentencing judge

may, by preponderance of the evidence, find the Defendant in violation of

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probation and execute on some or all of the suspended sentence.

XIV. Appeals: Criminal appeals include:

A. District Court of Maryland to Circuit Court: An appeal from the District

Court to the Circuit Court, in a criminal case, is an appeal of right and is

conducted in the form of a trial de novo, i.e., a new trial.

B. Circuit Court to the Court of Special Appeals

1. Appeal of right: An appeal from the Circuit Court to the Court of Special

Appeals is usually an appeal of right. These appeals are “on the record,”

meaning that the appellate court determines, from the record, whether the

trial court made a legally reversible error that was not harmless beyond a

reasonable doubt.

2. Discretionary appeals: A few criminal appeals are discretionary on the

part of the Court of Special Appeals, requiring the Defendant to file an

application for leave to appeal. The proceedings from which the

Defendant does not have an appeal of right, but must file an application

for leave to appeal, are (a) the denial of habeas corpus relief after denial of

pre-trial release, (b) a guilty plea, (c) the denial of post conviction relief,

and (d) conviction for violation of probation.

C. United States District Court to the United States Circuit Court

1. Appeal of right: An appeal from a United States District Court to a

United States Circuit Court is usually an appeal of right. These appeals

are “on the record,” meaning that the appellate court determines, from the

record, whether the trial court made a legally reversible error that was not

harmless beyond a reasonable doubt. Appeals from the United States

District Court for the District of Maryland go to the United States Court of

Appeals for the Fourth Circuit in Richmond, Virginia.

2. Discretionary appeals: A few criminal appeals are discretionary on the

part of the District Court or the Circuit Court, requiring the Defendant to

persuade one of those courts to grant a certificate of appealability.

D. Court of Special Appeals to the Court of Appeals: An appeal from the Court

of Special Appeals to the Court of Appeals is discretionary on the part of the

Court of Appeals, requiring the Defendant to file a petition for a writ of certiorari.

The only exception is the death penalty, for which the Defendant has a non-

waiveable appeal of right in the Court of Appeals.

E. State courts of last resort & federal Circuit Courts to the Supreme Court of

United States: An appeals to the Supreme Court of the united States is

discretionary on the part of the Supreme Court, requiring the Defendant to file a

petition for a writ of certiorari.

XV. Collateral review: Collateral review is usually based on the following:

A. Types of collateral review

1. State petition for post conviction relief: A Defendant in custody (which

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includes being on probation or parole) may file a petition for post

conviction relief in the Circuit Court within ten years after sentencing. If

unsuccessful, the Defendant may file a motion to reopen a closed post

conviction proceeding.

2. State petition for writ of error coram nobis: A Defendant who is no

longer in custody may file a petition for writ of error coram nobis in the

Circuit Court or District Court in which the Defendant was convicted. A

probation before judgment counts as a conviction for coram nobis

purposes.

3. Federal petition for writ of habeas corpus: A Defendant in either a

state criminal justice system or the federal criminal justice system may file

a petition for writ of habeas corpus in the United States District Court,

based on federal constitutional claims. The Defendant in a state criminal

justice system must (a) first exhaust state post-trial remedies (appeal and

collateral review), and (b) file no later than 365 lifetime days after the start

of “dead time” in which there was no state proceeding ongoing. The

Defendant in the federal criminal justice system must (a) first exhaust

federal appeals, and (b) file no later than 365 days after the last federal

appellate proceeding.

B. Bases for obtaining relief through collateral proceeding

1. Ineffective assistance of trial, appellate, &/or post conviction counsel:

The Sixth Amendment right to counsel requires the Defendant to have

effective assistance of trial counsel. Equal protection or due process

requires the Defendant to have effective assistance of counsel on appeal

and on collateral review. There is ineffective assistance of counsel if

counsel committed serious attorney error that prejudiced the Defendant,

meaning a substantial probability or significant possibility of a different

result. As to trial counsel, if the Defendant went to trial, this means a “not

guilty” verdict. As to trial counsel, if the Defendant pleaded guilty, this

means that the Defendant would not have pleaded guilty. As to appellate

counsel, this means that the Defendant’s conviction would have been

reversed. As to collateral review counsel, this means that the Defendant

would have been granted post conviction relief.

2. Prosecutorial misconduct in not disclosing exculpatory material: The

prosecutor is required to disclose exculpatory evidence, i.e., evidence (a)

that, if believed, would tend toward a “not guilty” verdict or a lesser

sentence, or (b) that could be used to impeach prosecution witnesses, e.g.,

witness promised leniency in return for “turning State’s evidence.”

3. Illegal sentence

4. Factual innocence: In Maryland, the Defendant may file, at any time, a

motion for a new trial based on newly discovered evidence of actual

innocence.

XVI. Parole

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A. State penal systems: Most states offer parole for a majority of offenses and

sentences. In Maryland, the Defendant with a sentence that is eligible for parole

is entitled to a parole hearing after completion of 25% of the sentence for non-

violent crimes and 50% of the sentence for violent crimes. Parole is rarely

granted on the first time sought.

B. Federal penal system: Parole was eliminated in the federal system in 1987.

XVII. Executive clemency: The President has executive power of clemency, including

commutation of sentence or grant pardon to a person convicted in the federal criminal

justice system. A Governor has that same power over a person convicted in the

Governor’s state. Executive clemency is rarely granted.