steps in the criminal justice system - school of...
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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.