Court of Special Appeals Holds That a Material Witness Was Illegally Detained

by Professor Byron L. Warnken on March 12, 2012

In Broadway v. State, in a rare case, the Court of Special Appeals heard an appeal, in a criminal case, brought by a witness and not by either the Defendant or the State.  The State claimed that she was a “material witness” whose testimony was crucial to the State’s case.  The State a “body attachment,” which is similar to an arrest warrant.  The law entitles the court to detain the witness if the State can establish that (1) the witness’s testimony is material to the State’s case, and (2) without the body attachment, it is likely that the witness will fail to attend the trial and testify.

In this case, pursuant to a court ordered body attachment, the witness was arrested.  Instead of being brought immediately before a court to determine (1) the materiality of the witness’s testimony, and (2) the likelihood that the witness would flee and not testify, the witness jailed for three days before a hearing.  At the hearing, the court ordered the witness held based on her demeanor and responses to questions.  After an additional 17 days, a Public Defender filed a petition for a writ of habeas corpus, alleging illegal detention.  At that hearing, with the witness represented by counsel, the court ordered that she (1) be released, (2) appear at the trial, and (3) remain under the supervision of the court’s Pre-trial Services Division until trial.  The witness appealed, arguing that the body attachment was illegal.

The Court of Special Appeals held that the State failed to show that the witness’s attendance will be unlikely without a continued body attachment.  The State argued that the witness (1) repeatedly evaded its attempt to speak with her, and (2) failed to appear on multiple occasions, despite having been summoned.  The Court held that witnesses have (1) no duty to talk to the prosecutor or the defense in the absence of a court order, and (2) no duty to obey a “summons,” because summons only apply to Defendants, and the State failed to serve the witness with a subpoena.  The State argued that the witness’s demeanor showed that she would not appear for trial.  The Court held that the witness testified that she would appear for trial, and demeanor alone is insufficient to believe otherwise.  The Court said that, even though the witness was upset, there was nothing to indicate that she would not appear for trial.

The Court held that order for the body attachment failed to comply with the Maryland statute.  (1) The order was not supported by oath or affirmation (sworn testimony) or by an affidavit (document created under oath).  (2) The order did not set a bond.  (3) The witness, upon arrest, and during a three-day detention, was not brought before a court.

The State filed a motion to dismiss the appeal.  The State argued that there was no longer a dispute that the court could hear because the witness had been released from jail after the second hearing.  The Court held that the witness was still under the court’s supervision and could be detained if she did not comply with the conditions of release, and, therefore, there was still a dispute.

The State also argued that the witness could not appeal the order because (1) she was only a witness and not a party, and (2) there had been no final appealable judgment on the merits of the case.  The Court held that the order subjecting the witness to pre-trial supervision was “final” as to the witness, even though the case had not gone to trial.  The Court relied, in part on a 2006 Court of Appeals case, in which a hospital, having been ordered to produce documents in a dispute between two healthcare companies, claimed that the documents were privileged.  The trial court’s order to turn over the documents was immediately appealable because, if the hospital was correct, the harm could not be undone once the documents became public.

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