Daubert “Fit” and the “Appropriateness” of Expert Testimony Under Rule 5-702(2)

By Derek Stikeleather

With Maryland’s formal adoption of the Daubert standard for admissibility of expert testimony in all civil and criminal cases, the meaning of Maryland Rule 5-702 should now mirror the meaning of Federal Rule of Evidence 702. But the textual structure and ordering of the two rules still differs. The federal rule was revised in 2000 to better reflect the holdings of the Daubert trilogy. The Maryland rule was modeled after FRE 702 as it existed in 1995.

Despite their different structure and ordering, the two rules, which are presented in full at the bottom of this post, share three core requirements for expert testimony:

  • Qualifications: both rules require that the witness be “qualified as an expert by knowledge, skill, experience, training, or education.”
  • Helpfulness: Both rules require that the testimony will either “help” (FRE 702(a)) or “assist” (Md. R. 5-702) “the trier of fact to understand the evidence or to determine a fact in issue.”
  • Sufficient Factual Basis: The rules require that the testimony rest upon either “a sufficient factual basis” (Md. R. 5-702(3)) or “sufficient facts or data” (FRE 702(b)). Incorporating the Daubert trilogy, the federal rule then spells out that the testimony must be “the product of reliable principles and methods” (FRE 702(c)) that were “reliably applied” to “the facts of the case.” (FRE 702(d)). Maryland has long imposed the same requirement through case law. See Rochkind v. Stevenson, 471 Md. 1, 22 (2020).
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Suing State-Court Judges: An Anti-Primer

By Joseph Dudek

Because suing judges is often ill-advised, the doctrines governing those lawsuits are often ill-considered. In resolving a lawsuit against a prosecutor, the Supreme Court largely missed that the lawsuit was really against judges. However, Justice Thomas didn’t miss it and state-court practitioners should take lessons from what Justice Thomas’s dissent says about federal jurisdiction and procedure.

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Boundless at the Trial Level, Toothless on Appeal: Maryland’s Law on Sentencing.

By Isabelle Raquin

A few weeks ago, our Editor-in-Chief, Steve Klepper, wrote a piece entitled “Mental Illness and Maryland’s Toothless Review of Criminal Sentences” regarding the unreported decision, Robbins v. State. In Robbins (Nazarian, J.), the Court lamented, in dicta, about the lack of meaningful appellate review of a classic “over-sentence” for a defendant who suffered from severe mental health issues.  In contrast, on March 8, 2023, the Appellate Court of Maryland chose to report Robson v. State, ACM-REG-0764-2022) (Moylan, J.) a decision affirming the trial court’s sentence that was substantially above the State’s recommendation, and without any of the regrets expressed in Robbins. Robson precisely makes Mr. Klepper’s point: a sentencing judge has boundless discretion and the appellate court’s review is toothless. Robson also suggests that changes in the status quo is unlikely without legislative action or new caselaw emanating from the Supreme Court of Maryland.

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Kenneth Ravenell seeks Rehearing En Banc

By Megan E. Coleman, Esq.

On May 9, 2023, Kenneth Ravenell filed a Petition for Rehearing En Banc of the panel majority’s holding that Mr. Ravenell was not entitled to a jury determination on the applicability of the statute of limitations after Mr. Ravenell raised the defense at trial.

By way of background, Mr. Ravenell was acquitted of six of the seven charges against him, the sole count of conviction was for conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h). At trial, Mr. Ravenell moved for judgment of acquittal arguing, inter alia, that the government had not proven that the money laundering conspiracy lasted into the applicable statute of limitations period, past July 2, 2014. The district court denied the motion for acquittal, finding that the government had shown evidence of acts associated with the conspiracy past July 2, 2014, and that there was no evidence of withdrawal from the conspiracy on Mr. Ravenell’s behalf. At the end of the defense case, Mr. Ravenell renewed his motion which the court again denied.

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Who was Maryland’s First Female Appellate Attorney?

By Diane E. Feuerherd

In 2006 and upon the realization that “the State’s history of female lawyers was lost” on members of the Bar and the general public,[1] Judge Lynne A. Battaglia founded The Finding Justice Project, which resulted in extensive historical research and the publication of Finding Justice: A History of Women Lawyers in Maryland Since 1642 (“Finding Justice”).[2]

In the spirit of Finding Justice, I ask – Who was Maryland’s first female appellate attorney?[3]

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The Practical and Historical Rationales for the “Supreme Court of Maryland” with “Justices”

By Michael Wein[*]

The title “Supreme Court” today seems like a natural and organic name to call the highest appellate court in a State.  An historical refresher of the name helps explain why Maryland did not originally call its High Court the “Supreme Court of Maryland.”  That is, until the recent Constitutional Amendment was approved by Maryland voters and officially adopted on December 14, 2022.  

When the United States was founded, Colonial appellate courts previously existed, tracing to at least the 1600s, well before the United States Supreme Court.  The “United States Supreme Court,” as a title, was developed as part of the United States Constitution drafted in 1787 and Congress’ 1789 Judiciary Act.  The first “Session” with Supreme Court Justices later began in 1790.  See Dallas Reports of Cases Ruled and Adjudged in the Several Courts of United States and of Pennsylvania, Vol. II, 1798, Pg. 399. 

Maryland, Virginia, Pennsylvania, and the Massachusetts colonies were the first American colonies with defined appellate courts, though functioned a bit differently than today.  For example, when Maryland was ready to join the United States proper, as the 7th Admittee to the Union, the Maryland colony changed the Court’s name, as well, from the “Provincial” Court to the “Court of Appeals of Maryland,” as part of Maryland’s 1776 Constitution.  Maryland’s original appellate courts were titled as the “Provincial” appellate court and arguably began with a law passed in 1637 or 1638, though weren’t established before about 1642, with further changes enacted in the 1660s and 1690s.  See, e.g., Wilson v. Simms, 380 Md. 206, 220 (2004) (J. Battaglia, discussing Maryland’s appellate court history, which included the then-nascent province of Maryland establishing a system of oversight with a mixture of executive and judicial functions, including appellate jurisdiction, which mirrored the Common Law system of England); see also The Maryland Court of Appeals-A Bibliography of Its History, 1987 (Compiled by Michael S. Miller, Director, Maryland State Law Library); The Court of Appeals of Maryland, A History, Bond, Carroll T. (Chief Judge of the Court), Baltimore, (1928), pg. 1. 

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Mental Illness and Maryland’s Toothless Review of Criminal Sentences

By Steve Klepper (Twitter: @MDAppeal)

Not many unreported opinions of the Appellate Court of Maryland receive coverage in the Washington Post. But Thursday’s edition included an article by Justin Jouvenal on the new unreported opinion in Alain Jean Marie Robbins v. State. I urge you to read the opinion—authored by Judge Nazarian and joined by Judges Berger and Leahy—particularly pages 26 to 29.

Reluctantly affirming the second-degree assault convictions of a woman who kicked deputies while in an acute mental health crisis, the Court wrote that in our “admittedly gratuitous appellate opinion, Ms. Robbins was grossly over-charged, over-prosecuted, and over-sentenced when what she really needed was help.” Although the sentence was “suspended save for time served,” the defendant “still has five consecutive five-year suspended sentences hanging over her head and, although currently at liberty, she stands one non-technical probation violation away from exposure to a quarter-century in prison.”

This opinion hit hard, especially when I later learned of the heartbreaking testimony by the defendant’s teenage son at sentencing.

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Much Ado About Something: Freedom from Targeted Searches and Seizures Based on the Alleged Odor of Cannabis

By Michele D. Hall,[*]
Guest Contributor

In the last moments of the General Assembly’s 2023 legislative session, the House passed HB1071, which prohibits police from stopping or searching a person or vehicle based solely on (1) the odor of cannabis, (2) possession or suspicion of possession of cannabis, or (3) currency in proximity to cannabis without other indicia of distribution. HB1071 fundamentally changes the status quo. Currently, police routinely rely on the alleged odor of cannabis to search vehicles. The bill was a priority of the Legislative Black Caucus because marijuana laws are disproportionately enforced in communities of color.

Despite this fundamental change, Monday’s post “The Smell and the Fury: HB1071 and the Future of the Smell of Marijuana as Probable Cause” suggests that HB1071 is not significant because its substantive outcome was inevitable. The author argues that once marijuana is legal on July 1, “I think the Court would likely hold that the smell of marijuana, without more, is no longer probable cause to believe that the vehicle contains contraband or evidence of a crime. In other words, with or without HB1071, it is likely that vehicle searches based solely on the smell of marijuana are a thing of the past.”

It is not lost upon me that the quote from which the author draws the article’s title is: “It is a tale told by an idiot, full of sound and fury, signifying nothing,” from William Shakespeare’s Macbeth. For the author the noise around the change brought by HB1071is nothing more than sound and fury, which ultimately signifies nothing because the Supreme Court of Maryland would have reached this same result eventually.

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The Smell and the Fury: HB1071 and the Future of the Smell of Marijuana as Probable Cause

By Carrie J. Williams

Last Monday was the conclusion of the 2023 General Assembly session and it was even more chaotic than usual. Minutes before midnight, House Republicans were shouting at House Speaker Adrienne Jones and attempting to leave the chamber before the House was adjourned. I will leave it to others to comment on the state of Maryland politics. What interests me is the bill that caused the last-minute ruckus.

House Bill 1071 would enact Criminal Procedure § 1-211, which prohibits a police officer from stopping or searching a person, a car, or a boat based solely on: 1) the smell of burnt or raw marijuana; 2) possession or suspicion of possession of marijuana not exceeding the “personal use” amount; 3) currency near marijuana absent other indicia of an intent to distribute; or a combination of any of these three factors. HB 1071 also provides that an officer investigating a person solely for driving under the influence of marijuana may not search an area of the vehicle that is not readily accessible to the driver or “reasonably likely to contain evidence relevant to the condition of the driver[.]” Finally, HB 1071 contains an exclusionary provision that prohibits evidence “discovered or obtained in violation of this section, including evidence discovered or obtained with consent,” from being admitted at a trial or other proceeding.

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Adnan Syed’s Convictions Reinstated for the Victims’ Right to Attend in Person

By Isabelle Raquin

The Serial continues. On March 28, 2023, the Appellate Court of Maryland reinstated Adnan Syed’s convictions and sentence to life in prison plus 30 years, because it found that the trial court violated the victim’s right to notice of, and his right to attend, the hearing on the State’s motion to vacate, in violation of Criminal Procedure § 8-301.1(d) (Lee v. State, et al, No. 1291, September Term 2022, Opinion by Hon. Kathryn Graeff).

The Appellate Court found that, although the victim’s representative, Young Lee, did attend the vacatur hearing virtually, and had no right to be heard, he had the right to receive notice sufficient to allow him to attend in person. The Court further found that the subsequent entry of a nolle prosequi did not render this appeal moot because it was a nullity.

The Lee decision is the first time that the ACM expands the Court’s control over a nolle prosequi entered by the State in favor of a victim’s rights, and to the defendant’s detriment. The dissent (Hon. Stuart Berger), disagrees with the majority in two ways. First, Judge Berger would have held that the appeal was moot, and second, that the victim’s rights to notice and to be present were not violated.

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