The Process Of A Criminal Case In Maryland
There Is Only an Opportunity for Justice, by Jim Crawford Esq.
Overview of the entire process
The Investigation Begins
Criminal investigations and charges originate in several ways in Maryland. One of the most common is when a citizen files a complaint directly with a police officer. For example, if two people get into a fight at a bar, the police are called, and one of the people may wish to charge the other with assault. In domestic assaults where family members get into an argument at home, police respond to a call and enter the house. This entry is justified not with a warrant but with “exigent circumstances”, meaning the police have probable cause to look into a disturbance and see if everyone is okay. The police then interview the people involved and determine whether criminal charges will be filed. If the police decline to charge, then it is up to the people involved to charge via a commissioner. Police often decline to charge for any “on scene” incident and simply advise going to the commissioner at the local district court.
Police and commissioners
Commissioners are judicial officers appointed to initiate criminal charges and issue declarations, such as protective orders and peace orders. If a person declines to press charges against another, that does not mean the police will not make an arrest and charge an individual. In a domestic violence situation, the person making the allegations often does not want the other person arrested once the anger subsides. But the police often do, based on the theory that if a crime has been committed, it’s their duty to make an arrest and file a criminal charge.
The law indicates that if a police officer sees a misdemeanor or felony occurring, they are absolutely obligated to make an arrest and begin the criminal process. If a police officer has reasonable suspicion or probable cause that a misdemeanor or felony occurred in the past, then they also have an obligation to file criminal charges or make an arrest. Usually, past-felony investigations are reserved for detectives and administrative investigators. When a person wants to file criminal charges against someone, they go to see a commissioner who will determine whether probable cause exists for that charge to be filed. For example, if an aggrieved victim goes to a commissioner and claims that an aggressor committed a crime against her, that commissioner must make an assessment to determine if, based on the circumstances presented, a crime may have occurred. It’s not the commissioner’s job to show that a crime actually occurred beyond a reasonable doubt. She is a not a judge nor a jury, but merely a scribe in some ways. A commissioner looks at the facts, assessing the person’s credibility and determining whether or not the elements of a crime have been met. If so, the commissioner may issue a summons, a warrant, or a charging document in the district court. A complainant or victim must write out a statement of facts about the alleged crime and how it occurred. The commissioner will make her determination based on those written facts. Those written facts represent what has been alleged to have occurred, and they become evidence to be used later by a criminal defendant’s attorney. In the United States, it is very easy for anyone to go to a commissioner or the police and make up an allegation. It really isn’t the commissioner or the police officer’s duty to make absolutely sure that the charges are true or false. They are not there to judge as to whether or not the crime actually occurred. They are there to push the allegation into the process of the criminal judicial system. People who get charged are often upset and angry because they feel as if someone has accused them falsely, and they don’t understand the process. They say, “How the hell could this happen? How could someone simply make up something about me and obtain criminal charges?” But while it is easy for someone to make up facts and try to procure a criminal charge, it is very difficult for a person to make the allegations stick if they are false. There are many ways to prove the crime didn’t occur.
The most common method of charging a person with a crime is through a police officer or a commissioner. However, another method uses a grand jury. A grand jury consists of 24 people who will meet in a jury room in the circuit court to determine whether a crime may have occurred. The grand jury room is a sanctum in the sense that a defendant is usually not allowed to be there or be involved, and it is almost entirely run by the prosecutor’s office. The government’s office will present evidence to the grand jury, usually from the detective or police officer who has knowledge of the crime, and most of the time the grand jury will indict. You may have heard the saying, “You can indict a ham sandwich.” That is very true in the sense that the only evidence presented is from the state or federal prosecutor, and grand juries will usually go along with it. After the grand jury indicts, the process moves on to becoming a case.
A “criminal information” charge
A less common charging document is the “criminal information form”. Usually, this occurs when criminal charges are filed in the circuit court (as opposed to the lower district court), and the state attorney’s office decides to file criminal charges directly against the defendant. This is a tool that state attorneys use to get around various defense strategies such as the preliminary hearing, which we will discuss next. Remember: almost all criminal charges start in the district court. So, when a police officer or individual charges someone with a crime, the charges are facilitated through the district court system. Maryland has “tied together” every district court in the state. The circuit court has the ability to use the same system but to a lesser degree.
Nearly every case charged in Maryland starts out in district court. Even a homicide charge or very serious rape charge starts in the district court. If a defendant is charged with a felony, then the defendant has an absolute right to a preliminary hearing. A preliminary hearing is a process where a district court judge will listen to the evidence presented by the state’s attorney’s office to determine whether there is enough evidence for the case to continue to the circuit court. In other words, the judge must determine whether the allegations could have occurred. What is the real purpose of a preliminary hearing, and does it do any good? The answer is, unequivocally, yes. I’ll give you two examples. Suppose you live in a small town in Maryland. You grew up in a situation where the local sheriff didn’t like your family or had some problem with you individually. The sheriff has harassed you for a long time and then he charges you with false crimes for personal reasons. Who can stop him? The preliminary hearing is designed to prevent abuses of police power and careless use of state authority. If there is a probability or even a hint of evidence that an incident could not have occurred, then the district court judge at the preliminary hearing should dismiss the charges. Here is another example. I had a case in western Maryland where a defendant was charged with very serious drug distribution charges. The drugs involved were worth hundreds of thousands of dollars. The state had not yet been indicted, so we had a full preliminary hearing. Remember that at the preliminary hearing, the state’s attorney’s office must present evidence, but the defendant cannot present evidence nor testify. However, her attorney can cross-examine the state’s witnesses to determine whether there is probable cause that a crime was committed. In this particular situation, the state presented a senior police officer who had investigated the charge. The officer testified that he had recovered a large amount of narcotics in the defendant’s home. The officer spent a considerable amount of time talking about how it was discovered and what the result was. Finally, the state was obligated to present the fact that the alleged narcotics were actually a controlled dangerous substance prohibited by the state of Maryland. In other words, they had to show lab results that proved the drugs were illegal. After a lengthy cross-examination about how and where this occurred, I asked a few simple questions about the type of drugs. I analyzed the lab results and noticed the lab report said all the narcotics were heroin. But the officer had testified that the drugs recovered were cocaine. Because this officer categorized the drugs differently from the lab result, we achieved complete dismissal of the felony charges! That example is rather simple, but there are many others. I often handle domestic violence cases where the state has charged the defendant with first- and second-degree assault. When a person is charged with multiple counts in district court and some of them are felonies, only those felonies are subject to the preliminary hearing review. The difference between first-degree and second-degree assault in Maryland is very important. In simple terms, for the state to prove the elements of first-degree assault, the state must show that it was a very serious assault. Usually, a weapon is involved, or some sort of choking which puts the victim close to paralysis or death. Second-degree assault in Maryland is simply an unlawful touching, which can be serious but usually is not life-threatening. This particular defendant was charged with first-degree assault and, after cross-examining the police officer, I showed that there was no serious possibility of death, even though some strangulation had occurred. Based on that, the felony first-degree assault charge was dismissed.
In these instances of multiple counts which include felonies, the case stays in district court if the felonies are dismissed at the preliminary hearing. If the hearing finds probable cause, then the case and all its “tag-along” misdemeanors will be moved to the circuit court. The “criminal information” method of charging someone is rare, but it gives the state the ability to have the case put directly to the circuit court to get more leverage. A very common strategy of the state’s attorney’s office is to simply indict the individual prior to the preliminary hearing if it believes the defendant may have a chance of getting rid of the felonies. That puts the state in a situation where they have more leverage in the circuit court because the felonies are still alive and the defendant must deal with all the charges. A defendant and her lawyer need to determine whether or not the case has a chance of staying in the district court. If it does not, and it proceeds to the circuit court, the lawyer needs to understand what strategies can be used. To avoid unpleasant surprises for the client, lawyers need to know about the judges’ and prosecutors’ habits in certain cases and also have a deep understanding of each charge and element.
What happens after a summons or warrant is issued, and how does the bail process work?
Many times, a criminal defendant is not even aware that she has been charged in a matter. Often, the first time she becomes aware of the problem is when she is arrested by the police or receives a summons in the mail indicating that she has a trial date. A commissioner usually determines whether a summons or warrant will be issued. The charging officer and sometimes a state’s attorney also play a role. When a complainant describes the alleged severity of the circumstances to the commissioner’s office, certain types of cases almost always require a warrant; murder or homicide, a felony sex matter and child pornography are a few examples. When the warrant is issued, it is given to the local police department and the “warrant squads” will attempt to serve the defendant. Sometimes they come in the middle of the night, and other times they make routine stops at the house to lock the person up. I always advise people that if they receive a call from a detective or police officer indicating there is a warrant or that they need to come to the station, please be aware that you will be arrested and put in jail. You need to have your attorney contact them immediately to determine what the status is and how it can be handled. If there is a warrant, it is usually more advantageous to have your lawyer schedule a time to turn yourself in to the arresting officer or detective. That way, you can have all your ducks in a row as far as bail and timing your ability to get out of jail.
A warrant is a declaration order from the state directing a police officer to arrest and take a person into custody. The defendant is taken to a charging center, such as “central booking” in Baltimore. Being arrested is a scary proposition. Many people who find out they have a warrant contact my office and they are scared to death. They want to know if everything will be okay. Unfortunately, in that situation, the arrest and booking must occur. But most people find it comforting to know they have a lawyer in their corner, and they appreciate it when I set up a time for them to turn themselves in so that we can time the arrest and the booking process in a reasonable manner. Typically, I speak to the arresting officer or the detective and make a deal where the person will turn themselves in at a specific time. I usually do it early in the morning so we can try to get them out hours later.
It’s important to understand the booking process in a scenario with a warrant. Often, we can get someone turned in, booked and out within several hours. It simply depends upon the jurisdiction and the crimes alleged. If a summons is issued, then you don’t need to worry about being locked up. The commissioner has deemed the offense not worthy of a warrant, and the court issues you a summons demanding you appear in the district court to face charges. But a summons doesn’t necessarily make the case less serious. It is extremely important to have a lawyer during this period to help you navigate the process. After you are put in handcuffs, you are taken to the booking department. You may sit there for a short time or maybe a long one, depending on how busy the station is. Once you are booked (which includes fingerprinting and photographing), then other information is obtained from you.
In Maryland, each defendant has the right to be seen by a commissioner for a bail review within 24 hours. Usually, that happens shortly after the arrest. In Baltimore Central Booking, it can take two days or more. A commissioner gathers information from you, assesses the charges, and determines whether bail is appropriate. The commissioner can deny bail, issue a surety bond (which means that an insurance company is involved in posting the bail), issue a high or low bail, or a cash bail. Over the last couple of years, the Maryland state courts have implemented more of a pretrial “supervision” system. Each county handles it a little differently, so most bails no longer involve actual dollars. However, some still occur.
Commissioners in some cases can allow the property to be posted in lieu of bail. Up until a couple of years ago, the so-called mini-hearing in front of a commissioner was usually done with just the commissioner and the defendant. It was deemed of little consequence. However, I and many other lawyers believe this step can be very important concerning whether or not bail is given. Recently, lawyers have been allowed to attend these mini-hearings with the commissioner. I think it’s helpful in many circumstances. However, because these hearings may occur at any time of the day or night, it’s difficult for a private lawyer to attend. The public defender’s office allows lawyers to attend these hearings and get paid through the state so that a person at least has someone they can ask about the process.
If the commissioner sets a bail, the defendant may post bail immediately and walk out of the detention center. That is why it is so important to have the bondsman or the bail bond agency ready to proceed before you are locked up. If the commissioner sets a reasonable bail and you have a bondsman available, the bondsman will usually do the legwork and post bail. They get paid a fee for doing so. Generally, the fee is 10% of the bail, but I have seen a wide range of costs over the years. The bondsman’s cost of insurance is usually about 4%, and anything they make over that is profit. If all goes well, then the defendant should be out within a few hours. However, there are many circumstances where the commissioner will deny bail or set a very high bail. The defendant has the legal right to wait to see a district court judge, either later that day or the next. They will not be released until that occurs unless they post bail in the amount set by the commissioner. At this point, caution is merited, because if you take a chance on getting a better deal with a judge and you strike out, then you may be stuck for quite a while. You’re playing with fire if you don’t know the ropes and the jurisdiction.
It takes a very experienced attorney to know what the chances are for a defendant to receive a bail from a district court judge if bail was denied by a commissioner or set very high. Many times, people want to take a chance and try to get the bail reduced because the commissioner set it high. Sometimes that turns out to be a mistake because the district court judge denies bail. Then all bets are off as far as the commissioner’s recommendation. The judge has denied bail, so the defendant will not be getting out. If the defendant is charged with a felony and has been denied bail, she has the right to a preliminary hearing if requested within ten days. Generally, a defendant is stuck in jail unless she can convince the district court judge at the preliminary hearing to issue a bail. This is rare because judges are sitting that day for the preliminary hearing and not any bail review. However, a good lawyer will try to craft a scenario where that can occur if prior bail has been denied. A lawyer can also request that an additional bail review or a habeas corpus be heard. (Habeas corpus means “bring the body to the court” because it is being held illegally). Attempts to get the defendant out of jail prior to trial are often futile because of the nature of the charges. The facts of the case and the defendant’s background (such as prior criminal history), as well as the nature of the alleged crime, will influence that determination. Flight risk, public protection and a determination if the defendant will show up are what the judge is pondering. Technically, under the Constitution, a defendant deserves a bail release – but not always. From my experience working with criminal defendants, the bail scenario is one of the most difficult things to determine. The Maryland bail industry used to have very strong connections to the Maryland General Assembly, and bail bondsmen get paid for their services. That has changed dramatically. The legislature allows the bonds to remain high in many circumstances which, in my opinion, are unreasonable. However, in many Maryland counties, they are now lower than they have ever been and in complete contradiction to other counties where they are set high. It’s wise to have an attorney who knows what she is doing in these circumstances. I’ve seen many situations where clients opt to have a judge make a determination on the bail when they could have walked out on a commissioner’s bail, even if it was set high. Defendants who are uneducated about the process of getting out with the commissioner’s bail can end up sitting in jail for weeks or months at a time.
It’s better to have an experienced attorney make that decision. On the state level, home detention and community detention are possible but rare. Usually, it’s simply being released on bail. On the federal level, there is no “bail,” and the standard is much higher. In federal court, judges (or sometimes magistrates) determine whether to release the individual into the community or have them monitored through home detention. Monetary bail is usually not applicable. As with the state, pretrial services will make a determination and recommendation to the judge as to whether the individual should be released. Many people have accused the bail processes of being antiquated. I agree on many levels. The primary purpose of bail is to ensure that the defendant will show up in court later. The other factors to consider are the dangerousness of the defendant to the community, other potential harm to the community, and the defendant’s past record, as well as the facts of the case. Many judges will err on the side of caution when it is a very serious case and hold the defendant without bail or set a very expensive bail. That is why it’s important to have a lawyer with you at the bail review process so she can carve out exceptions as to what’s being alleged. The judges and commissioners are required to assume that all the facts alleged in the case are correct. It’s not a question of guilt or innocence; it’s simply a question of whether or not they should be released on pretrial bail.
More about grand juries
Grand juries have always been the basis of fascination for TV shows and stories about how people are charged with crimes. “Anyone can indict a ham sandwich” may be true, but it’s a little more complicated than that. There are two basic types of juries in our criminal justice system. A petit jury is the one you see in a courtroom where six to twelve people vote on criminal and civil cases. A grand jury is completely different. It is a tool used by the state’s attorney’s office or the Department of Justice to charge people or sometimes corporations.
The federal system and the state system are similar. Both consist of up to 24 people. Bringing forth an indictment or a criminal charge usually requires two-thirds or three-quarters of the grand jury, depending on the jurisdiction. To understand what a grand jury does, we need to look inside the mind of a prosecuting attorney. While many indictments are strictly routine, with people charged on a routine basis every week, many are high-profile cases. In some circumstances, a prosecutor may not want to actually file a charge or charges themselves but will leave it to a grand jury to make that determination. It’s usually because of a political decision or a high-profile scenario. Grand juries are highly secretive. If you are selected to be a juror in a grand jury, you must keep everything that occurs within the room a secret. Defense attorneys and their clients are generally not allowed in the grand jury room. The secrecy allows for people to freely speak their minds (testify) and for prosecutors to build cases.
Sometimes it takes weeks or months to build a case. Others occur in minutes. Grand jurors are appointed to the grand jury for a day or sometimes longer. In the latter case, it’s usually because the prosecuting agency is building a case against a defendant and needs time to gather evidence and present it, usually through subpoenas or testimony. There are strict state and federal laws about trying to pierce the grand jury veil. In other words, it is illegal for attorneys as well as citizens to disclose any information presented.
Typically, the prosecuting attorney presents evidence to the grand jury. The evidence usually comes from a police officer or other person who has information regarding the alleged crime. There are no hearsay rules, and it is very relaxed, unlike a regular court of law. The prosecuting attorney will question the witnesses and present information to the grand jury.
At the conclusion of the prosecutor’s case, the grand jury will vote on whether to return an indictment. An indictment is simply a raising of hands and voting on whether to prosecute. If the grand jury decides to prosecute, then an indictment is signed, sealed and delivered to the clerk’s office of the court. Earlier, I discussed why people have the right to a preliminary hearing when charged with a felony; that is, the right to have a judicial officer review the facts and determine there is no hanky-panky going on with the prosecutor’s office or the police, and to ensure that the government has enough evidence to go forward. The same is true with the grand jury.
The legal theory is that a grand jury is an independent body that can review the facts as applied to law and make sure the government is not playing hanky-panky regarding any decision to prosecute. That is why some prosecuting attorneys like to have grand juries present an indictment because it absolves the attorney of any blame for being over-zealous in charging a defendant. They simply say that it was up to the grand jury. Just because a grand jury returns an indictment doesn’t mean it’s legally sound.
There are many circumstances where a grand jury returns an indictment based on evidence that is less than convincing. In rare circumstances, I have filed a motion to ask the court to allow the grand jury proceedings to be recorded so we can get a transcript. This is done because we want to find out if the prosecuting attorney presented evidence properly, and that the grand jury was not misled or told something that can’t be proven.
No exaggerations are allowed, and misleading evidence is the basis for a defective indictment and dismissal. If it can be shown that the evidence presented was untrue, then the defendant may have a motion to dismiss the indictment and also to use the misleading evidence to impugn the government’s case. In any high-profile case, it is a normal and standard modus operandi to record the grand jury if the defense knows ahead of time that they are meeting. If a person is indicted, they will not have the right to a preliminary hearing, and district court proceedings are not involved.
From a jurisdiction standpoint, the circuit court of the county where the crime was committed immediately has proper jurisdiction, and the case will proceed in the circuit court forthwith. Many times, the defendant will have already been charged in the district court when an indictment is handed down and jurisdiction is immediately removed from the district court to the circuit court.
What is an arraignment on the state and federal levels?
On the state level, an arraignment is pretty simple. The defendant is required to come to court before the judge who usually advises the defendant in detail about her constitutional rights and the charges against the defendant are usually read in open court. Sometimes the judge will advise on procedural matters, too. The defendant is advised to have an attorney enter their appearance, and that she could lose certain rights if she does not do so immediately. These are called “use it or lose it rights.” Many courts will allow or require the defendant to enter a plea of not guilty, guilty or no contest (nolo contendere). The latter is very similar to a “not guilty” plea.
On the state level, by the time a defendant gets to the circuit court for arraignment, the bail and release have already been addressed by a commissioner and a judge. However, there are times when the defendant is still in jail, has been indicted and is standing before the judge at the circuit court for the first time to enter a plea. Wise attorneys will use that opportunity for a bail review if the court allows them to. If the defendant is still incarcerated and the judge allows the defense attorney to present a bail review, the judge must determine the following items: whether the defendant is a danger to the community, the defendant’s criminal record, the defendant’s ties to the community (such as how long she has lived there and whether she has family nearby), whether the defendant is employed in the community and for how long, and whether the defendant has any history of failure to appear in court (FTA).
If the judge decides that bail is proper, then she will determine whether the defendant is released on her own recognizance (ROR). That generally means being released with the promise that you will report for trial and not commit any other crimes before then. Judges and commissioners usually release defendants on recognizance if it is a minor case.
If a judge requires the defendant to post a bond or bail, the defendant must post money with the court in order to be released pending completion of the case. The court can require a cash bond or a surety bond. If the bond is “cash only,” then the defendant must post that amount with the court. Once the case is complete, the money is refunded less any fees the court may have.
Usually, there are little or no court fees. If the court allows a surety bond, a bondsman or bail company deposits a percentage of the bond with the court via a “promise to pay bond”, a contract that the bondsman will pay the balance of the bond if the defendant does not appear in court and cannot be located. The defendant needs to then pay the bondsman a portion of the bond for their services. A court can also issue other conditions to protect the community. For example, the court may require the defendant to have no contact with witnesses, not use drugs or alcohol, not associate with any other defendants involved with the case, not commit any new crimes or have any new arrest and not associate with known criminals, not possess any firearms, and not travel outside the county or the state. If the court determines the defendant violated any of these conditions, the court may rescind the ROR or bond and hold the defendant in jail pending trial. I have recommended to judges on many occasions that if the court is reluctant to release a defendant on ROR or a regular bail, then they should be able to carve out a supervised release, such as home detention.
The court can place the defendant in a supervised release program or on pretrial supervision, which is similar to probation. The defendant may have to report to a probation or other supervising officer to comply with the terms and conditions after they are released prior to trial.
In most jurisdictions, the defendant must appear for arraignment. However, there are some jurisdictions such as Baltimore County Circuit Court or Arundel County Circuit Court where, if a criminal defense lawyer enters their appearance, then the arraignment is waived. The reason is that if an attorney enters on behalf of the defendant, it is deemed that the defendant is being advised properly of the law and the charges. The prosecuting attorney will then forward any charging documents and related evidence to the defense attorney.
There are many other counties in the state, such as Howard County, Carroll County, Baltimore County and Harford County where the defendant must appear for a preliminary conversation with the court and the state’s attorney’s office regarding the nature and potential for trial in the case. In these jurisdictions, the arraignment can be very helpful, because you can get a head start as to what the state’s attorney is looking for in the case, as well as an actual recommendation or plea offer. Many times, the plea offer is just a starting point, and I usually do not recommend a defendant immediately take it; however, it gives us an idea of where the state’s case is. In many jurisdictions, an arraignment is looked upon as a pro forma requirement.
Many state attorneys send clerks to work with the court and defendant regarding the arraignment. The most important function of the court is to advise the defendant of how important it is to get an attorney in that situation, even if it’s a public defender, so they can get enough information about the arraignment. On the federal level, arraignments can be used for many things. Sometimes they resemble the state arraignment, except that the court will determine whether to hold the defendant. The “community release option” is always the first option of the federal courts. However, there are times when people are dangerous to the community or pose such a serious threat that they are held without release. Sometimes subsequent arraignments occur to further address particular issues in a case.
After the arraignment
What happens after the arraignment? If the defendant is released, then the case proceeds as normal. Sometimes trial dates and motion dates are picked at the arraignment. The trial judge wants to know if there are any motions that are likely to occur so he can schedule them. After an arraignment, I usually file something called an “omnibus motion” (See Appendix B). These are the “use it or lose it” motions. I formulate my motions to reflect all the possibilities that may eventually be raised for a defendant in the district or circuit court.
If you look at the motions in the appendix, you will see that I’ve covered just about every possible motion that needs to be raised. If motions are not raised properly, then you lose your right to raise them later in the case. Despite the fact we file these motions, not all of these issues are litigated. Often, the facts of the case do not even require them. However, motions such as discovery requests, grand jury transfer requests, motions to dismiss, Fourth Amendment suppression issues and speedy trial motions could be very instrumental to a successful outcome.
What happens after the defendant is arraigned and gets a trial date depends on the jurisdiction. Between the time of the arraignment and the trial date, there is usually a “discovery” period where your lawyer should be conducting an investigation, obtaining statements from witnesses, obtaining information from police agencies and the state’s attorney and sometimes negotiating with the state’s attorney’s office. It is not a time for idle hands. It is a time for earnest efforts so the defendant can benefit from everything that is discovered. Only a couple of counties in Maryland use an online electronic filing system, but most of the counties now use email and other electronic methods to fulfill discovery for the defendant’s attorneys. Generally, state’s attorney’s offices must provide the defense with any exculpatory information; that is, anything that can help their case. Nothing can be held back.
The state must provide every last bit of such evidence. One of the main differences between the state and federal courts is that discovery is handled differently. In federal court, a contractual agreement must be signed. On a state level, most discovery evidence is automatic and must be provided to the defense.
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