Law Commons^™

Hearsay And The Confrontation Clause, Lynn Mclain

All Faculty Scholarship

This speech was delivered to the Wicomico Co. Bar Association on October 28th, 2016. It is an updated version of the 2012 speech, available at http://scholarworks.law.ubalt.edu/all_fac/924/ .

Overview: Only an out-of-court statement ("OCS") offered for the truth of the matter that was being asserted by the out-of-court declarant ("declarant") at the time when s/he made the OCS ("TOMA") = hearsay ("HS"). If evidence is not HS, the HS rule cannot exclude it. The Confrontation Clause also applies only to HS, but even then, only to its subcategory comprising "testimonial hearsay." Cross-references to "MD-EV" are to section numbers of L. MCLAIN, …

The Regression Of "Good Faith" In Maryland Commercial Law, Lisa D. Sparks

University of Baltimore Law Forum

“Good faith,” in the affirmative or as the absence of bad faith, has always been a challenge to define and judge as a matter of conduct, motive, or both. Different tests apply a subjective standard, an objective standard, or even a combination of the two. Some parties may be held to different expectations than others. This determination of good faith has always been fact-driven and somewhat transcendental. Until recently, however, the question invoked a construct of fairness, resting on a two-pronged metric, at least insofar as several key titles of the Maryland Uniform Commercial Code were concerned. Since June 1, …

Comment: Maryland State Bank: The Responsible Solution For Fostering The Growth Of Maryland's Medical Cannabis Program, David Bronfein

University of Baltimore Law Forum

In 2013, Maryland passed its initial medical cannabis law.1 Although seemingly a success in the medical cannabis reform movement, the law only allowed for “academic medical centers” to participate in the program.2 In essence, an academic medical center could dispense medical cannabis to patients who met the criteria for participation in their research program.3 The success of this type of program structure was a concern for medical cannabis advocates,4 and the concerns were validated when no academic medical centers decided to participate.5 As a result of this lackluster program, the General Assembly responded by passing a bill6 during the 2014 …

Whose Bright Idea Was This Anyway? The Origins Of Judicial Elections In Maryland, Yosef Kuperman

University of Baltimore Law Forum

This paper describes how Maryland switched from the life-tenured appointed judiciary under its original Constitution to an elected judiciary. It traces the history of judicial selection from the appointments after 1776 through the Ripper Bills of the early nineteenth century to the eventual adoption of judicial elections in 1850. It finds that the supporters of judicial elections had numerous complex motives that boiled down to trying to make the Judiciary less political but more publically accountable. At the end of the day, Marylanders trusted elections more than politicians.

Recent Development: Peterson V. State: Limitations On Defense Cross-Examination Are Permitted When The Testimony Lacks A Factual Foundation, Is Overly Prejudicial, Or Has Not Been Adequately Preserved, Meghan E. Ellis

University of Baltimore Law Forum

The Court of Appeals of Maryland held that the defendant’s right to confrontation was not violated when the defense was precluded from cross-examining a witness about hallucinations and his potential sentence prior to entering into a plea agreement. Peterson v. State, 444 Md. 105, 153-54, 118 A.3d 925, 952-53 (2015). The court found that the defendant failed to preserve the issue of a witness’s expectation of benefit with respect to pending charges, and failed to show sufficient factual foundation for a cross-examination regarding the expectation. Id. at 138-39, 118 A.3d at 944. In addition, the court found that, although not …

Recent Development: Scarfield V. Muntjan: A Jury Demand In An Amended Complaint, Which Is Dismissed For Failure To State A Claim, Does Not Revive A Previously Waived Jury Demand For Counts In The Original Complaint, Thomas Andrew Barnes

University of Baltimore Law Forum

The Court of Appeals of Maryland held that, while a waived jury trial may be revived by an amended complaint in which new and substantive issues are raised, the dismissal of a new count raised in an amended complaint will not revive the originally waived demand for jury trial.

Recent Development: State V. Waine: A Court May Reopen A Closed Post Conviction Proceeding To Address A Challenge To An Advisory Only Jury Instruction, Ashley N. Nelson-Raut

University of Baltimore Law Forum

The Court of Appeals of Maryland held that advisory only jury instructions are not harmless error and the Unger v. State precedent should be applied retroactively. State v. Waine, 444 Md. 692, 122 A.3d 294 (2015). In addition, the court held that a defendant’s motion to reopen his or her post-conviction case after the Unger decision met the “interests of justice” standard required for reconsideration of the constitutionality of the defendant’s conviction.

Recent Development: Williams V. State: A Confession Is Voluntary Unless The Defendant Unambiguously Invokes His Constitutional Right To Remain Silent Or The Confession Is Obtained Through Coercion Or Inducement, Pascale Cadelien

University of Baltimore Law Forum

The Court of Appeals of Maryland held that “I don’t want to say nothing. I don’t know,” is an ambiguous invocation of the right to remain silent. Williams v. State, 445 Md. 452, 455, 128 A.3d 30, 32 (2015). The court reasoned that the defendant’s addition of “I don’t know” to his initial assertion “I don’t want to say nothing” created uncertainty about whether he intended to invoke his right to remain silent. Id. at 477, A.3d at 44. This allowed a reasonable officer to interpret his statement as an “ambiguous request to remain silent.” Id. Furthermore, the officers’ implication …

Maryland's Family Divisions Are A Model For Change, Barbara A. Babb, Gloria Danziger, Michele H. Hong-Polansky

All Faculty Scholarship

In fiscal year 2014, 43 percent of all cases filed in Maryland’s trial court of general jurisdiction (the circuit court) were family law cases (Court Operations Department, 2014: CC-5). Historically, Maryland courts, like many states’ family justice systems, lacked a uniform structure to consolidate family law issues for an individual family. As a result, families often faced multiple hearings before different judges in different courtrooms to address a variety of issues, such as divorce, domestic violence, delinquency, and child abuse/neglect. This system created tremendous hardship for families (particularly low-income families, many of whom were self-represented litigants) and resulted in fragmented …

Building Community, Still Thirsty For Justice: Supporting Community Development Efforts In Baltimore, Renee Hatcher, Jaime Alison Lee

All Faculty Scholarship

Baltimore is a city of many challenges, but it possesses true communitybased strength. The city’s residents and community organizations are its greatest assets. This article highlights some of the community’s work and how the Community Development Clinic at the University of Baltimore School of Law (CDC) supports this work through its experiential learning curriculum.

The challenges facing Baltimore’s communities (systemic disinvestment, structural racism, vacant buildings, unemployment, and the criminalization of poverty, to name a few) existed long before the national media coverage and uprising surrounding the death of Freddie Gray, an unarmed Black man who suffered a fatal spinal injury …

Exciting Changes In Central Baltimore: Examining The Homewood Community Partners Initiative, Gillian Rathbone-Webber

University of Baltimore Journal of Land and Development

The Homewood Community Partners Initiative (HCPI) is one of the newest waves of development based in Baltimore.1 HCPI has a different approach to development than other economic development plans in Baltimore and, in comparison to some failed attempts in other areas of the City, it seems to be working. Baltimore has long suffered from blight, high rates of vacant buildings, and high crime. There have been many previous attempts to address and repair those issues with only some success. HCPI is attempting to mitigate all those issues by way of a community development agenda and a five-part plan.2 While the …

Maryland's Medical Marijuana Law: Transactional And Ethical Perspectives For Real Estate Practitioners, Nicole M. Lacoste Folks, Lawrence F. Haislip, Matthew L. Kimball

University of Baltimore Journal of Land and Development

The congruence between Federal and state laws relating to marijuana, 2 which has existed for generations, is unraveling. In recent years a number of states have reduced or eliminated criminal penalties for the possession or use of small amounts of marijuana;3 twentythree states have established a state law exception for medical marijuana; 4 and Colorado, Washington, Alaska and Oregon now authorize the retail and personal growth, sale and possession of marijuana as a matter of state law.5 Maryland has lately joined the list of states purporting to create exceptions or safe harbors for those wishing to engage in the manufacture, …

Baltimore's Monumental Question: Can The Heightened Social Conscience Against The Confederacy Rewrite The Constitutional Right To Due Process?, Blake Alderman

University of Baltimore Journal of Land and Development

Monuments are preserved in order to remember, educate the public on, and acknowledge the monuments’ historical significance. Maryland’s monuments are designated by two authorities: the Board of the Maryland Historical Trust and smaller municipal commissions.1 The Board examines local monuments to be submitted to the national registry, whereas the smaller commissions are appointed and operate to preserve local Baltimore monuments.2 On June 30, 2015, Baltimore City Mayor Stephanie Rawlings-Blake announced the creation of a Special Commission to review all Baltimore City Confederate historical monuments.3

The Commission’s appointment stems from a recently heightened national awareness of racism embedded in government culture. …

"Zoning" In On Maryland's Nascent Marijuana Industry, Matthew Mccomas

University of Baltimore Journal of Land and Development

Is green the new gold?1 Last year, the marijuana industry pulled in a whopping $2.4 billion.2 To put it in perspective that’s about 74% more than it did the year before.3 As of today, four states (Alaska, Colorado, Oregon, and Washington) and the District of Columbia have legalized recreational marijuana.4 But, more so, 23 states have decriminalized medical marijuana, including the State of Maryland in 2013.5

One of the most frequent legal issues in states with medical or recreational marijuana industries concerns where to locate marijuana distribution and production facilities.6 In Maryland, new law states that local municipalities shall determine …

Recent Development: Jackson V. State: Successive Post-Conviction Petitions Are Not Barred By The Doctrine Of Res Judicata Or Maryland Rule 4-704; A Petition For Dna Testing Will Be Denied If The Evidentiary Threshold For A Wrongful Conviction Claim Is Not Met., Kayla M. Dinuccio

University of Baltimore Law Forum

The Court of Appeals of Maryland held that the doctrine of res judicata and Maryland Rule 4-704 do not bar successive DNA petitions. Jackson v. State, 448 Md. 387, 406, 139 A.3d 976, 987 (2016). The court further held that denying Jackson’s petition for DNA testing without a hearing under Maryland Rule 4-709 was proper, because none of his assertions would have produced exculpatory evidence. Id. at 411, 139 A.3d at 990.

Comment: De Facto Parents In Maryland: When Will The Law Recognize Their Rights?, Michelle E. Kelly

University of Baltimore Law Forum

Rachel and Allison were in a committed same-sex relationship beginning in 1990. Although they never legally married, the couple decided to manifest their love by having a child in 2001. Rachel and Allison both agreed that Rachel would carry the child by way of an anonymous sperm donor. Their child, Kevin, was born on September 3, 2002. Allison was present in the delivery room and even cut the umbilical cord. From the time Kevin was born until the summer of 2009 when Rachel and Allison ended their relationship, the couple equally raised and cared for Kevin, sharing all major and …

Recent Development: Preston V. State: Reasonable Protective Housing Provided To A State's Witness Is Not A "Benefit" Within The Meaning Of Maryland Criminal Pattern Jury Instruction 3:13, Andrew Middleman

University of Baltimore Law Forum

The Court of Appeals of Maryland held that a “benefit,” as used in Maryland Criminal Pattern Jury Instruction 3:13, is “something akin to” a direct, quid pro quo exchange for a State’s witness’s testimony. Preston v. State, 444 Md. 67, 85, 118 A.3d 902, 913 (2015). The court of appeals further held that reasonable protective housing provided to a State’s witness, by itself, is not a “benefit.” Id. at 85, 104, 118 A.3d at 913, 924. The court also concluded that moving a State’s witness into protective housing, at State expense, was “not unreasonable.” Id. Accordingly, the court affirmed the …

Recent Development: Sibug V. State: When A Defendant Is Found Incompetent, A Retrial Does Not Renew His Responsibility To Raise The Issue Of Competency; A Judicial Determination Of Competency Is Required Upon Retrial, Allison Terry

University of Baltimore Law Forum

The Court of Appeals of Maryland held that a defendant who was previously found incompetent must be given a new competency hearing at retrial. Sibug v. State, 445 Md. 265, 319, 126 A.3d 86, 116 (2015). In addition, the defendant does not have to raise the issue of competency anew.

Baltimore Law Clubs: A Tradition Promoting The Integrity Of The Bar Through Scholarship And Congeniality, Stuart R. Berger, Bryant S. Green

University of Baltimore Law Forum

Since before the civil war, lawyers and judges in Baltimore have had a tendency to organize informal, intimate, and exclusive clubs for the purpose of promoting congeniality and scholarship.1 Although this Anglo-American tradition traces back to as early as the sixteenth century,2 the institution of law clubs in the United States appears to have been a unique, local phenomenon until the 1960s and 1970s.3 Today, this tradition continues in Baltimore City, which currently plays host to no fewer than eight individual law clubs, with many more existing throughout the state. These law clubs offer their members the opportunity to pursue …

Recent Development: Seal V. State: Pursuant To § 10-402(C)(2)'S Exception To The Wiretap Ban, An Individual Is Not Under The Supervision Of An Investigative Or Law Enforcement Officer When Intercepting An Oral Communication, Absent Restrictions On Equipment Use And Some Subsequent Contact., Ashley N. Simmons

University of Baltimore Law Forum

The Court of Appeals of Maryland held that a detective providing recording equipment to an individual, absent any limitations for use and no interaction thereafter, did not amount to the individual acting under supervision of an investigative or law enforcement officer. Seal v. State, 447 Md. 64, 80, 133 A.3d 1162, 1172 (2016). The court found that guidelines must be given to the person conducting the wiretapping, as well as at least some contact to monitor the progress. Id. at 79-81, 133 A.3d at 1172.

Recent Developments: Sharp V. State: Despite Not Formally Objecting, Defense Counsel Properly Preserved The Issue Of Whether The Circuit Court Inappropriately Weighed Defendant's Decision Not To Plead Guilty At Sentencing; The Circuit Court Did Not Impermissibly Consider Defendant's Rejection Of The Plea Offer At Sentencing., Colin Campbell

University of Baltimore Law Forum

The Court of Appeals of Maryland held that defense counsel’s statements conveyed an objection to the circuit court’s perceived consideration of the defendant’s decision not to plead guilty at sentencing. Sharp v. State, 446 Md. 669, 113 A.3d 1089 (2016). As a result, the court held that defense counsel sufficiently preserved the issue for appellate review. Id. at 684, 113 A.3d at 1098. Ultimately, though, the circuit court’s statements at sentencing did not give rise to the inference of an impermissible consideration. Id. at 701, 113 A.3d at 1108.

Recent Development: Toms V. Calvary Assembly Of God, Inc.: Noise Resulting From Legally Permissable Fireworks Does Not Constitute An Abnormally Dangerous Activity, And The Application Of Strict Liability Is Inappropriate., Jason C. Parkins

University of Baltimore Law Forum

The Court of Appeals of Maryland held that noise emitted from a lawful fireworks display did not constitute an abnormally dangerous activity; therefore, the parties were not subject to strict liability. Toms v. Calvary Assembly of God, Inc., 446 Md. 543, 569, 132 A.3d 866, 881 (2016).

Recent Development: A Guy Named Moe, Llc V. Chipotle Mexican Grill Of Colo., Llc: A Foreign Limited Liability Company Lacking Compliance With State Registration Requirements May Maintain Suit After Infirmity Is Cured; The Company Must Also Meet The "Person Aggrieved" Requirement Of Standing., Alicia M. Kuhns

University of Baltimore Law Forum

The Court of Appeals of Maryland held that a foreign limited liability company, though unregistered at the time of filing, could resolve its lack of compliance and maintain its action for judicial review. A Guy Named Moe, LLC v. Chipotle Mexican Grill of Colo., LLC, 447 Md. 425, 447, 135 A.3d 492, 505 (2016). The court further held that one does not have standing as a “person aggrieved” based solely on the desire to eliminate business competition. Id. at 453, 135 A.3d at 508.

Blind Justice: The Need To Introduce Diverse Perspectives Into Our Legal System, Edward H. Richardson

University of Baltimore Law Review

Peggy Young was finally pregnant. This was the third time that she attempted in vitro fertilization. The first time, in 2005, the procedure was successful, but Young suffered a miscarriage. The second attempt at in vitro fertilization, in February 2006, failed. The third round, in July of 2006, was a success. Each time that Young underwent an in vitro fertilization attempt, she requested, and received, a leave of absence from her job at United Parcel Service (UPS).

But what should have been a joyous occasion-a pregnancy resulting in the birth of Young's daughter Triniti- turned into a battle with UPS …

Recent Development: Counts V. State: Absent The Defendant's Consent, The State May Not Amend The Charging Document If The Amendment Changes The Character Of The Offense, Kristin E. Shields

University of Baltimore Law Forum

The Court of Appeals of Maryland held that amending a charge from theft of property “with a value of less than $1,000” to theft of property “with a value of at least $1,000 but less than $10,000” without the defendant’s consent changed the character of the offense. Counts v. State, 444 Md. 52, 55, 118 A.3d 894, 895 (2015). Therefore, the court held that such action was prejudicial per se because it interfered with the defendant’s right to defend himself by not giving notice of the exact charges against him, thereby violating Maryland Rule 4-204.

Recent Development: Sieglein V. Schmidt: Pursuant To § 1-206(B) Of The Estates And Trusts Article, Artificial Insemination Encompasses In Vitro Fertilization Using Donated Sperm; A Court May Use The Goldberger Factors To Determine Voluntary Impoverishment; A Trial Court Can Issue A Permanent Injunction For Harassment Based On § 1-203(A) Of The Family Law Article., Virginia J. Yeoman

University of Baltimore Law Forum

The Court of Appeals of Maryland held that the term “artificial insemination” includes in vitro fertilization using donated sperm, and that a consenting husband is presumed to be the father of the child born as a result of the procedure. Sieglein v. Schmidt, 447 Md. 647, 652, 136 A.3d 751, 754 (2016). The court also held that the circuit court did not abuse its discretion in finding the husband to be voluntarily impoverished or in issuing a permanent injunction based on harassment. Id.