How the Criminal Justice System Works – A Primer

by Professor Byron L. Warnken on September 20, 2015

How the Criminal Justice System Works

I.          Police-citizen encounters implicating 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.

A.        Mere accosting:  The least intrusive police-citizen encounter is no intrusion at all in constitutional terms.  An accidental, voluntary, or consensual encounter is an accosting.  Because an accosting has no restraint of liberty, an accosting does not implicate the Fourth Amendment.  It is not a seizure if a reasonable person would feel free to ignore the officers and leave.

B.         Stop or detention:  A stop or detention occurs when the police intrude on an individual’s reasonable expectation of privacy at a level less than a full custodial arrest.  It requires a show of authority and submission thereto.  Such an intrusion requires reasonable suspicion that criminal activity is afoot.

C.        Stop & frisk:  A frisk occurs when the police “pat down” or “frisk” an individual for weapons (but do not search) or when police search the interior of a vehicle for weapons.  Such an intrusion requires reasonable suspicion that the individual is armed and dangerous.

D.        Arrest:  An arrest occurs when the police intrude on an individual’s reasonable expectation of privacy at a level equal to a full custodial arrest at common law.  A warrantless arrest for a felony requires probable cause to believe that the individual being arrested committed a felony.  A warrantless arrest for a misdemeanor generally requires that a misdemeanor be committed in the officer’s presence.  An arrest requires probable cause and a warrant, issued by a neutral and detached magistrate (in Maryland, that’s a judge) when the arrest is taking place in the arrestee’s home (unless there is an exigency or consent to enter) or when the arrest is for a misdemeanor not committed in the officer’s 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 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 searchee’s or arrestee’s home:  Police may enter the searchee’s or arrestee’s home in only four circumstances, as follows:

1.         Consent:  An individual with a reasonable expectation of privacy in the home may give consent to enter, provided consent was voluntarily given, measured under a totality of the circumstances.

2.         Search warrant:  The police may search an individual’s home based on a search warrant for the home, limited only by reasonableness.

3.         Arrest warrant:  The police may enter an arrestee’s home only if there is reasonable cause to believe the arrestee is at home at that time.

4.         Exigency/“hot pursuit”:  The police may enter a home if there is probable cause to believe that a fleeing felony or evidence is present, and the arrestee/evidence will be gone if the police take time to obtain a warrant.

II.         Police-citizen encounters implicating 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 totality of circumstances:  The voluntariness standard applies whenever there is conversation between the police and any individual in all pre-arrest and post-arrest scenarios.  In Maryland, an otherwise voluntary statement may not be voluntary if it was taken by the police during a period of unnecessary delay in taking the arrestee before the a court commission, particularly if the purpose of the delay was to obtain a statement.

B.         Miranda rights:  Miranda v. Arizona, 384 U.S. 486 (1966), and its progeny, entitle the individuals to be advised that (1) there is a right to remain silent, (2) anything the individual says will be used against the individual, (3) the individual has the right to an attorney present during questioning, and (4) the police will provide the individual with 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:  A statement is inadmissible, under Maryland’s common law, if it is given in response to police promises or inducements.

III.       Police-citizen encounters implicating Sixth Amendment right to counsel &/or Fourteenth Amendment DPC during identifications: Both Sixth Amendment right to counsel and Fourteenth Amendment DPC place limitations on police obtaining identifications, e.g., photo arrays, line-ups, show-ups, both pre-charging and post-charging.

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, under Fourteenth Amendment DPC.

B.         Identifications during critical stages after formal charging or during trial-like confrontation:  When an individual is identified, during a critical stage (a non-videotaped line-up or show-up, after formal charges have been filed, or during a trial-like confrontation (an adversarial preliminary hearing)), the individual 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 of arrestees in District Court: The Fourth Amendment prohibition against unreasonable searches and seizures requires that an individual arrested without a warrant be taken before a judicial officer promptly (48 hours is presumptively prompt).  In Maryland, all arrestees (warrant and warrantless) must be taken before a Court Commissioner as soon as practicable but, in no event, later than 24 hours after arrest.  This is a non-adversarial preliminary hearing with no right to counsel.  The judicial officer makes the following determinations:

A.        Probable cause to arrest:  The judicial officer determines whether there is probable cause for the arrest and continued detention of the arrestee (in the same manner that a neutral and detached magistrate would have decided 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 the next steps.

B.         Notification of pending charges:  The judicial officer informs the arrestee of the charges for which the arrestee has been arrested.

C.        Pretrial release determination:  The judicial officer determines, based on constitution, statute or court rule, whether the individual is entitled to pretrial release. If so, the judicial officer determines the release status and conditions, using discretion for ensuring both the arrestee’s appearance when required and the safety of others.  About half of all arrestees are (1) released on personal recognizance, meaning a promise to obey all laws and conditions of pretrial release, and to appear in court when required, or (2) released to the custody of another person, e.g., a juvenile released to the custody of a parent.  About half of all arrestees are released by posting bond, supported by a pledge of real property, cash posted with a court, or a pledge by a corporate surety, i.e., a bail bondsman.

D.        Preliminary hearing:  The judicial officer informs arrestees who are arrested for felonies (but not misdemeanors) that if the arrestee has not, or is not, indicted by a grand jury, the arrestee has a right to a preliminary hearing, but only if requested within ten days.  This is an adversarial preliminary hearing to determine whether there is probable cause to formally charge the arrestee and require the arrestee to stand trial and defend against the charges.

E.         Right to counsel:  The judicial officer informs the arrestee of the right to counsel and the advantages of counsel, even if Defendant plans on pleading guilty.

V.        Preliminary hearings in District Court: Defendant who is arrested for a felony, but not indicted, is entitled to an adversarial preliminary hearing, in which Defendant is entitled to counsel, for the purpose of determining whether there is probable cause to require Defendant to stand trial on those charges, provided Defendant requests such hearing within ten days after appearance before the Court Commissioner.

VI.       Charging processA charging document is prepared by a prosecutor or police officer, 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 state court, there must be an appropriate matching of the charging document with criminal jurisdiction, i.e., Circuit Court versus District Court, or juvenile jurisdiction.

A.        Grand jury indictment: A prosecutor may present felony charges ex parte to a grand jury, meaning that neither Defendant nor counsel is present.  A grand jury formally charges by issuing a “true bill” criminal charge, i.e., an indictment, which can only be litigated in Circuit Court.

B.         Criminal information: A prosecutor may prepare and file criminal charges by way of 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.        CitationA 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 a juvenile, which if juvenile jurisdiction is not waived, is litigated in Circuit Court, sitting as the juvenile court.  Although all individuals under age 18 are juveniles, depending on the age of the juvenile and the nature of the charges, a juvenile may be prosecuted as an adult in criminal court at ages 16 or 14, depending on the offense.

VII.      Arraignment: An arraignment is a Circuit Court appearance in which Defendant enters a plea of guilty or not guilty.  Occasionally, there is a plea of nolo contendere or not criminally responsible (NCR) by reason of insanity.  An arraignment is usually Defendant’s first appearance in Circuit Court, which is an event that commences the “clock” for other events, e.g., discovery requirements, pretrial motions, non-constitutional speedy trial analysis.

VIII.     Discovery: Discovery is the pretrial process of each side obtaining/providing certain information and evidence from/to the other side.

A.        Constitutional discovery:  Under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, a prosecutor is required to gratuitously provide all exculpatory evidence, meaning all evidence that is favorable to the defendant or that may be used to impeach prosecution witnesses.

B.         Non-constitutional discovery:  Under court rules, both the prosecution and the defense may be required certain information and evidence be provided by the other side, if timely requested.

C.        Bill of particulars:  Under court rules, Defendant may request a bill of particulars to supplement the charging document.  If the prosecution charges by way of a statutory short-form indictment, the defendant is entitled to a 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 Defendant

A. Prosecutorial mandatory notice:  Some sentencing options, e.g., recidivism sentencing, enhanced sentencing, death penalty, life without parole, require the prosecutor to provide timely written notice to Defendant.

B.         Defense mandatory motions:  If Defendant wishes to make certain challenges to the prosecution’s case, Defendant must file timely pretrial motions, as follows:

1.         Defective charging document:  A charging document’s failure to provide subject matter jurisdiction may be challenged by Defendant at any time at any level, e.g., on appeal even if not raised at trial.  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 evidence, statements, and/or identifications were obtained unconstitutionally, their admissibility must be challenged by a motion to suppress.

3.        Severance:  If counts and/or Defendants were improperly joined, such joinder must be challenged by a motion to sever..

X.        Plea bargaining & guilty pleas:  More than 80% of all criminal cases are resolved by a two-party or three-party plea agreement, i.e., by a “constitutional contracts.”

A.        Types of plea agreement

1.         Standard guilty plea:  In a standard guilty plea, Defendant pleads guilty and admits guilt.

2.         Alford guilty plea:  Under North Carolina v. Alford, 400 U.S. 25 (1970), Defendant may plead guilty without admitting guilt.

3.         “Not guilty/statement of facts”:  Under a plea of “not guilty/statement of facts,” Defendant pleads “not guilty,” but proceeds on an agreed statement of facts as if guilty.

4.         Nolo contendere plea:  Under a plea of nolo contendere, Defendant does not plead guilty, and is not found guilty, but Defendant agrees not to contest the charges, allowing the court to treat Defendant as if guilty.

B.         Parties to plea agreements

1.         Two-party ABA approved plea:  A two-party ABA approved plea agreement is an agreement between the prosecution and defense, presented as a non-binding recommendation to the court.

2.         Three-party ABA approved plea:  A three-party ABA approved plea agreement is an agreement in which the prosecution and defense present a binding agreement to the court, which, if the court is not willing to “bind” itself, permits Defendant to go to another Court.

C.        Terms of plea agreements:  The negotiated terms may include anything that is not against public policy and usually includes one or more of the following:

1.         Offenses:  Agreements almost always include those offenses/counts to which Defendant is pleading guilty and other charges that will be dismissed by way of nolle prosequi (nol pros), placed on an inactive docket by way of stet, or not charged in the first instance.

2.         Cooperation by Defendant:  Sometimes, agreements include cooperation by Defendant, e.g., testifying.

3.         Disposition:  Agreements usually include the disposition or sentence, e.g., period of incarceration, terms and length of probation or parole, restitution, community service.

XI.       Trial rights

A.        Right to counsel

1.         Fifth Amendment right to counsel:  Defendant has a Fifth Amendment right to counsel during custodial interrogation under Miranda.

2.         Sixth Amendment right to counsel:  Defendant has a Sixth Amendment right to counsel for all critical stages from the commencement of formal judicial adversarial proceedings, i.e., formally charged (or a trial-like confrontation), through sentencing, if Defendant is charged with a felony or charged with a misdemeanor for which Defendant faces potential incarceration.

3.         Fifth/Fourteenth Amendment Equal Protection Clause right to counsel:  Equal protection ensures that indigent Defendants have a right to counsel on the first appeal of right.  For Defendants in a state criminal justice system, this is based on the Fourteenth Amendment.  For Defendants in the federal criminal justice system, this is based on the Fifth Amendment.

4.         Fifth/Fourteenth Amendment DPC right to counsel:  Due process ensures that indigent Defendants have a right of counsel for violation or probation and revocation of parole proceedings if the case is complex or involves a constitutional question.  For Defendants in a state criminal justice system, this is based on the Fourteenth Amendment DPC.  For Defendants in the federal criminal justice system, this is based on the Fifth Amendment DPC.

5.         Maryland statutory right to counsel:  Maryland Defendants are entitled to counsel, by statute, (a) for misdemeanors with a potential incarceration in excess of three months or a fine in excess of $500, and (b) for a first post conviction proceeding.

B.         Right to speedy trial

1.         Sixth Amendment right to speedy trial:  To determine if Defendant has been denied the Sixth Amendment right to speedy trial, consider (a) the length of any delay, (b) the reasons for the delay, (c) whether Defendant demanded a speedy trial, and (d) the prejudice to Defendant by the delay.  It probably takes at least a one-year delay to trigger the analysis.

2.         Maryland right to speedy trial:  In Maryland, by statute and court rule, Defendant is entitled to the commencement of the trial no later than 180 days after the first appearance of Defendant or first appearance of counsel in Circuit Court, unless the administrative judge postpones the trial for good cause shown.

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 sixth months on any given count in the charging document.  A jury requires at least six jurors, but does not require unanimity, i.e., juries of 10-2, 9-3, and 6-0 were held as constitutional, while juries of 5-1 and 5-0 were held unconstitutional.  A jury venire/pool must include a fair cross-section that does not exclude large distinctive groups, i.e., race, ethnicity, national original, religion, gender.  Defendant may strike “for cause” potential jurors who are unable to render a verdict based solely on the evidence.  Defendant may exercise peremptory strikes (strikes not “for cause”), as provided by statute or court rule.  However, because there is an equal protection right to serve on a jury, Defendant may not exercise a peremptory strike based solely on the potential juror’s membership in a large distinctive group.

2.         Maryland right to trial by jury:  Maryland’s common law entitles Defendant to a jury trial in Circuit Court if there is potential incarceration.  There are no jury trials in District Court but, if Defendant is subject to potential incarceration in excess of 90 days on any given count, Defendant may pray for a jury trial, which divests the District Court of jurisdiction.  A jury requires 12 jurors and unanimity, unless there is a knowing and intelligent waiver.

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

E.         Right to public trial

1.         Sixth Amendment right to public trial:  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, permitting limited closure.

2.         First Amendment right to public trial:  The press and 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 victim’s constitutional amendment:  Md. Decl. Rights art. 47 ensures crime victims a state constitutional right to notice of most proceedings and a right to be present.

F.         Right to confrontation:  The Sixth Amendment right to confrontation guarantees face-to-face confrontation, except in child abuse cases, and guarantees the right to cross-examine witness against Defendant, precluding testimonial hearsay in most circumstances.  Defendant may forfeit this right through witness intimidation.

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

H.        Fifth/Fourteenth Amendment DPC:  As to each element of each offense and the criminal agency of Defendant, the Fourteenth Amendment DPC in state criminal justice systems and the Fifth Amendment DPC in the federal criminal justice system place on the prosecution (1) the burden of production, i.e., the burden of producing a prima facie case (tested through a motion for judgment of acquittal at the end of the prosecution’s case-in-chief), and (2) the burden of persuasion, persuading the fact finder (jury or judge) of guilt beyond a reasonable doubt (tested through the verdict, following jury instructions).

XII.      Post-trial motions: Defendant may file a Motion for a New Trial (1) in the interests of justice, (2) based on newly discovered evidence, or (3) based on fraud, mistake, or irregularity.  A few jurisdictions (not Maryland) permit a motion for judgment notwithstanding the verdict, i.e., a criminal JNOV.

XIII.     Sentencing: Sentencing issues include the following:

A.        Sentencing authority:  The sentencing authority in a given situation may be a judge (most typical) and/or a jury.  In Maryland, the jury never plays a role in sentencing, except in death penalty cases.

B.         Mandatory or discretionary sentencing:  By statute, a sentence may be mandatory or discretionary at both the level of imposition of sentence and/or the level of execution of sentence.

C.        Types of sentence:  Sentences include incarceration, home detention, drug and alcohol treatment, probation after judgment, probation before judgment (PBJ), fines, restitution, and/or community service.

D.        Sentencing enhancements:  Under some circumstances, the legislature provides permissive or mandatory sentencing enhancements.

E.         Sentences eligible for parole & sentences not eligible for parole:  Some sentences require, and some permit, incarceration with parole or without parole.

F.         Pre-sentence investigation (PSI) reports:  Courts usually order a PSI report.

G.        Victim impact statements (VIS):  Victims of crimes are entitled at sentencing to provide a VIS to the sentencing judge.

H.        Sentencing factors:  Courts may consider any information that is relevant to the offense or the offender, meaning relevant to the crime or the criminal, provided that, as to negative information, the prosecution provided the information to Defendant prior to sentencing, with sufficient time for Defendant to investigate the information.

I. Sentencing guidelines:  Most jurisdictions, including Maryland, have sentencing guidelines.  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 to exist beyond a reasonable doubt.

J.          Capital offenses:  Thirty-eight states 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, first degree murder).  Defendant is entitled (1) to a bifurcated proceeding of guilt or innocence and 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, at least 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 Circuit Court to Court of Special Appeals (CSA), except death sentences, which are automatically reviewed by the Court of Appeals (COA).

K. Post-sentencing sentence motions:  Maryland provides multiple post-sentencing sentence motions, as follows:

1.         Application for Review of Sentence by Three-Judge Panel:  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 panel may confer with the sentencing judge and may decrease the sentence, increase the sentence, or leave the sentence unchanged.

2.         Motion for Modification of Reduction of Sentence:  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 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:  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.

L.         Violation of probation:  If the sentencing judge places Defendant on probation, whether before or after judgment, and Defendant fails to comply with probation conditions, the sentencing judge may, by a preponderance of the evidence, find Defendant in violation of 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 District Court to Circuit Court, in a criminal case, is a matter of right and is conducted in the form of a trial de novo.

B.         Circuit Court to CSA

1.         Appeal of right:  Appeals from Circuit Court to the CSA are mostly appeals as a matter of right.

2.         Discretionary appeals:  A few criminal appeals are discretionary on the part of the CSA, requiring Defendant to file an Application for Leave to Appeal.  The proceedings from which Defendant does not have an appeal of right, but must file an Application for Leave to Appeals, are (a) the denial of habeas corpus relief after the denial of pretrial 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 United States Circuit Court

1.         Appeal of right:  Appeals from District Court to Circuit Court are mostly appeals as a matter of right.

2.         Discretionary appeals:  A few criminal appeals are discretionary on the part of the United States District Court or the United States Circuit Court, requiring Defendant to persuade one of those courts to grant a Certificate of Appealability.  The proceedings from which Defendant does not have an appeal of right, but must file a Certificate of Appealability, are (a) the denial of habeas corpus relief after denial of pretrial release, (b) a guilty plea, (c) the denial of habeas corpus relief, and (d) conviction for violation of probation.

D.        CSA to COA:  Appeals from the CSA to the COA are discretionary on the part of the COA, requiring Defendant to file a Petition for a Writ of Certiorari (Cert. Petition).  The only exception is the death penalty, for which Defendant has a non-waiveable appeal of right to the COA.

E.         State courts of last resort & federal Circuit Courts to SCOTUS:  Appeals to SCOTUS are discretionary on the part of SCOTUS, requiring Defendant to file a Cert. Petition.

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

A.        Types of collateral review

1.         Petition for Post Conviction Relief:  Defendant in custody (including on probation or parole) may file a Petition for Post Conviction Relief in Circuit Court within ten years after sentencing.  Thereafter, Defendants may file a Motion to Reopen a Closed Post Conviction Proceeding.

2.         Petition for Writ of Error Coram Nobis:  Defendant who is no longer in custody may file a Petition for a Writ of Error Coram Nobis in Circuit Court.

3.         Petition for Habeas Corpus Relief:  Defendant in either a state criminal justice system or the federal criminal justice system may file a Petition for Habeas Corpus Relief (Habeas Corpus Petition) in a United States District Court, based on federal constitutional claims.  Defendant in a state criminal justice system must (a) first exhaust state post-trial remedies (appeal and collateral review), and (b) file with no more than 365 lifetime days of “dead time” in which there was no state proceeding ongoing.  Defendant in the federal criminal justice system must (a) first exhaust federal appeals, and (b) file within 365 days of the last federal appellate proceeding.

B.         Bases for obtaining relief through collateral proceeding

1.         Ineffective assistance of trial, appellate, &/or post conviction counsel:  Defendant is denied the right to effective assistance of counsel of trial counsel (Sixth Amendment right to counsel), of appellate counsel (Fifth/Fourteenth Amendment Equal Protection Clause), or of post conviction counsel (Fifth/Fourteenth DPC) if counsel committed serious attorney error that prejudiced Defendant, meaning that there is a substantial probability or significant possibility of a different result (“not guilty” if a trial or would not have accepted the plea if a guilty plea) had counsel been competent.

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.

3.         Illegal sentence

4.         Factual innocence:  Factual innocence may be litigated in limited circumstances.

XVI.    Parole

  1. State penal systems:  Most states offer parole for a majority of offenses/sentences.  In Maryland, 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.

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

XVII.   Executive clemency (federal – President; state – Governor):  The President and Governors have executive power to pardon, commute sentences, and parole.

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Change of Venue in the Criminal Case Context

by Professor Byron L. Warnken on May 27, 2015

In Baltimore, there has been a change of venue motion filed in the Freddie Gray case.  Here is a little bit of information about change of venue…

The Defendant has an absolute right to be tried in the jurisdiction where the crime allegedly occurred.  If the crime took place in Maryland, then the State of Maryland has personal jurisdiction over the Defendant and over the alleged crime.  The political subdivision is the county in which the crime allegedly occurred.  Maryland has 24 political subdivisions.  Just as Maryland has personal jurisdiction over the Defendant and over the crime, the county where the crime allegedly occurred has venue to try the case.  Although the Defendant has the right to be tried in the county in which the crime allegedly occurred, the Defendant also has a right to file for a change of venue.

If the Defendant files for a change of venue, the theory supporting a change of venue is that the Defendant is unable to obtain a fair trial in that venue, and is entitled to have the case moved to another venue in that same jurisdiction.  Most typically, a change of venue motion is denied.  The theory supporting denial of a change of venue motion is that, even if there has been inordinate publicity, through the use of extensive voir dire of potential jurors, the court will be able to impanel a fair and impartial jury.  Voir dire is the questions that the court asks potential jurors in an effort to discover potential biases and prejudices.  Voir dire questions posed to potential jurors must be answered by those potential jurors under oath or affirmation.  The Defendant has the right to have potentially biased or prejudiced jurors stricken so that the Defendant may obtain a fair and impartial jury.  Voir dire also entitles the Defendant to pose to the court questions, during voir dire, to help the Defendant learn what prejudices and biases potential jurors may have that may preclude one of more potential jurors from being able to decide the case based solely on the evidence that is presented at trial.  A fair and impartial jury is one that, although it may be familiar with the case, it has not formed an opinion as to guilt or innocence, and it will decide the case based solely on the evidence presented at trial.  Thus, publicity does not, by itself, entitle the Defendant to a change of venue.

However, if there is not only community saturation of information about the case, but there is community hostility toward the Defendant, the Defendant is entitled to relief toward his or her effort to obtain a fair and impartial jury.  In the hostility scenario, the Defendant may be entitled to some form of relief.  That relief may be afforded to the Defendant in one of two ways.  One method to deal with community hostility is to postpone the trial until such time as the community hostility has subsided.  One method to deal with community hostility is to move the case from that venue to another venue, in the same jurisdiction, where there is no such hostility or where there is a much lesser degree of hostility.

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Suppressing Illegally Obtained Statements

November 6, 2014

Five Theories to Suppress Illegally Obtained Statements I.       Statement suppression theory #1 – Fourth Amendment “fruit of the poisonous tree” If police make an illegal arrest, and then obtain a statement, the statement is likely to be suppressed, as a “fruit of the poisonous tree” of the illegal arrest, even if the statement was otherwise [...]

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Should I Accept a Guilty Plea?

September 25, 2014

In most criminal cases, the Defendant is afforded an opportunity to accept a guilty plea.  The question is, if a plea can be negotiated, should the Defendant accept a guilty plea?  No two cases are alike, and there is no “one size fits all” answer to whether to accept a guilty plea.  Here are some [...]

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A Thank You to the Baltimore Bar Library

August 5, 2014

On July 17th, I was able to speak at the Baltimore Bar Library about the updates to the criminal law of Maryland in the past year since my treatise was published.  It was a privilege and an honor. It was remarkable how quickly the year since the original publication went by.  Ultimately, I decided to [...]

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Police Must Have a Warrant to Search a Cell Phone

July 5, 2014

For 40 years, the Supreme Court’s jurisprudence has been strongly pro-government on issues of Fourth Amendment search and seizure.  On June 25, 2014, in Riley v. California, 2014 WL 2864483, the Supreme Court ruled 9-to-0 in favor of the Defendant in two companion “cell phone” cases. Background To comply with the Fourth Amendment, police must [...]

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The First Annual Update

June 24, 2014

I spent about 35 years completing my treatise, Maryland Criminal Procedure.  There are more than 10,000 cases, rules, and statutes.  Thankfully, I had someone else complete those massive tables. After 35 years to get the first edition done, I managed to complete the first annual supplement in only one year.  Of course, I only had [...]

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The Supreme Court and Consent Search

March 9, 2014

SCOTUS Plays Fast and Loose with Consent Search In the era of the Warren Court in the 1960’s, the Supreme Court held that, searches and seizures were per se unconstitutional unless the police obtained a warrant, subject to a very few, carefully delineated, and well guarded, exceptions to the warrant requirement.  Nearly a half century [...]

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I Was In a Car with Drugs…

February 7, 2014

Well, I was not in a car with drugs but if you’re reading this, maybe you were. If I am in a car that is stopped, and there are drugs, what can the police do to me?  The answer to that question depends on a couple of variables.  What is your status and where are the drugs? There [...]

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Can I Withdraw My Guilty Plea?

January 30, 2014

My lawyer kept telling me that he was going to work out a good deal or me.  He worked out a deal with the prosecutor.  The Judge might have been involved in working out the the deal, but I am not sure.  We went to court.  I am not a lawyer.  It was all so confusing to [...]

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