Last month, Maryland voters approved a constitutional amendment renaming our appellate courts—with the Court of Appeals becoming the Supreme Court of Maryland, and the Court of Special Appeals becoming the Appellate Court of Maryland. Judges of the Supreme Court of Maryland will now be “Justices.”
Since then, lawyers have kept asking me the same question: “If I’m discussing a pre-name-change decision, do I use the new names and titles?”Read More…
By John Grimm
Tuesday was an election night full of historic firsts for Maryland—including the first Black governor and attorney general, the first South Asian woman lieutenant governor, and the first woman to win statewide state office independently. It also marked the fruition of the seemingly quixotic legislative project of giving Maryland’s appellate courts names that make sense. By a margin of 73% to 27%, voters approved a constitutional amendment changing the name of the state’s highest court from the Court of Appeals to the Supreme Court of Maryland (and the title of its jurists from judge to justice), and the state’s intermediate appellate court from the Court of Special Appeals to the Appellate Court of Maryland.Read More…
Daubert’s evolution passed a major milestone last week, one that should affect the admissibility of expert testimony in Maryland’s state and federal trial courts going forward. On June 7, the Judicial Conference Committee on Rules of Practice and Procedure unanimously approved the proposed amendments to Federal Rule of Evidence 702. Of course, Maryland state courts follow Md. Rule 5-702. But the Court of Appeals of Maryland, in 2020, formally adopted the Daubert standard, which applies FRE 702, for construing Rule 5-702. Rochkind v. Stevenson, 471 Md. 1 (2020). This leaves no room to interpret the state rule for admitting expert testimony any differently than the federal rule.
If approved by Congress (after review by the Judicial Conference and U.S. Supreme Court), the amended Rule will become effective on December 1, 2023. It states:
Rule 702. Testimony by expert witnesses.
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent has demonstrated by a preponderance of the evidence that:
a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
b) the testimony is based on sufficient facts or data;
c) the testimony is the product of reliable principles and methods; and
the expert has reliably appliedthe expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
The new clause requiring each of Rule 702’s four reliability factors to be “demonstrated by a preponderance of the evidence” is not a substantive change but rather a point of emphasis. It directly targets the recurring error of judges who construe challenges to the sufficiency of the expert’s facts or data or the reliability of the expert’s case-specific application of principles and methods as jury questions that merely “go to the weight of the evidence.” Under the rule, this has always been a threshold question for the judge to decide as gatekeeper. Except judges have too often approached their gatekeeping role with excessive leniency. (Of course, other judges could be far too strict as gatekeepers under Rule 702, but the rules committee has not identified this as a problem.)
Last year, the Fourth Circuit Court of Appeals handed down a precedential opinion applying the proposed revised text and emphasizing that trial judges must ensure that each element of Rule 702 is met by a preponderance of the evidence. See Sardis v. Overhead Door Corp., 10 F.4th 268 (4th Cir. 2021). The Sardis opinion cautions trial judges that, under Daubert and Rule 702, they cannot delegate to jurors the judicial inquiry into whether Rule 702’s subsections (a) through (d) are all satisfied.
Going forward, challenges to an expert’s testimony should “go to the weight of the evidence” and not admissibility only after the trial judge has found that the testimony is probably “based on sufficient facts or data,” probably “the product of reliable principles and methods,” and probably “a reliable application of the principles and methods to the facts of the case.” Well-credentialed experts cannot bypass judicial scrutiny by merely characterizing their facts and data as sufficient and their methodology as reliable. The proponent of the expert testimony remains bound to show the trial judge that their testimony is likely to be reliable and helpful to the jury.
Maryland has an unusual procedure for appeals in post-conviction cases. The losing party, whether the State or the criminal defendant, must apply for leave to appeal. Our intermediate appellate court, the Court of Special Appeals (COSA), has unreviewable discretion whether to grant merits review of the decision. Our high court, the Court of Appeals, lacks statutory authority to review COSA’s discretionary decision to deny merits review. No rule, statute, or decision tells us what standard governs that exercise of discretion.Read More…
Maryland Courts Spring Forward with In-Person Oral Arguments in March and New Appellate Rules for April 2022
(Update: On February 25, 2022, the Court of Appeals issued two notices regarding COVID-19 related protocols for oral arguments: (1) Protocols for oral arguments on March 3 & 4, 2022; and (2) Protocols for oral arguments on March 7 & 8, 2022).
By Michael Wein
It appears all the appellate Courts for Maryland are returning for in-person oral arguments by March 2022. This has some déjà vu from a previous “optimistic” blog post, pre-Delta and pre-Omicron variant, from June 2021. There will hopefully not be any further quick and surprising Court shutdowns, as my August 2021 post relayed. Additionally, as discussed below, new appellate Rules have been approved in the past month by the Maryland Court of Appeals, taking effect on April 1, 2022, applying to many upcoming appellate Briefs.
In-Person Oral Argument Updates
In the past few weeks, there has been an announcement of in-person orals in the following courts for Maryland practitioners:
- The Maryland Court of Special Appeals has posted “[t]he Court will hold its March 2022 oral arguments in-person at the Robert C. Murphy Courts of Appeal Building. Counsel in cases scheduled for March arguments will receive notice from the Clerk with oral argument protocols.” This is after a few months of Remote arguments due to the Omicron variant.
- The Federal Fourth Circuit Court of Appeals after a few months reverting to the Zoom hearings due to Omicron, will have in-person oral arguments for their March 8-11, 2022 Session, in Richmond, Virginia.
- The Maryland Court of Appeals has not yet specified if their March 2022 oral arguments are to be in-person. However, with the Friday, Feb. 18, 2022’s Orders from Chief Judge Joseph Getty, the State of Maryland is resuming Phase 5 normal operations, including jury trials on March 7, 2022. It would thus be unsurprising if an announcement is received any day. It is possible that some of the oral arguments scheduled from March 3 through March 8, 2022, might be done remotely via Zoom, but my anticipation, particularly with the Court of Special Appeals’ announcement, they will all be done in-person, assuming the participating attorneys have confirmed availability, are not suffering COVID-symptoms, and are properly vaccinated.
On Friday, the Court of Appeals of Maryland, which has original jurisdiction over challenges to legislative districting maps, issued an order setting a February 10 deadline for challenges to the map that the General Assembly adopted this month. Senior Judge Alan Wilner, who sat on the Court from 1996 to 2007 and now heads the Rules Committee, will serve as Special Magistrate.
The order’s key provisions are:Read More…
There is a paucity of Maryland appellate opinions addressing the denial of bail pending an appeal after a criminal conviction. There exists one opinion in the Court of Appeals authored in 1970 and six opinions in the Court of Special Appeals authored between 1972 and 1984.
By no means does this dearth of recent appellate cases indicate that defendants nowadays are getting bail pending appeal every time they ask for it. Rather, very few defendants ask for bail pending appeal, and those who do rarely seek appellate review after their request for release is denied.
Why is that? Why isn’t it more appealing to ask for an appeal bond?Read More…
Until today, the Court of Special Appeals had a policy “not to cite for persuasive value any unreported federal or state court opinion.” In footnotes in a pair of opinions issued today (links here and here), the Court of Special Appeals announced a change in policy:Read More…
In October 2013, three months after becoming Maryland’s top judge, Chief Judge Mary Ellen Barbera announced a policy under which the Court of Appeals would decide every case the same term in which it heard argument. By August 31 each year, the Court would issue an opinion in all cases heard since the prior September 1.Read More…