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Rule 4-267 – Body Attachment of Material Witness

May 13, 2021 | Criminal Prodcedure, Maryland

(a) Without Order of Court. When a peace officer takes a person into custody as a material witness without an order of court for attachment, the person shall be taken promptly before a judicial officer in the county in which the action is pending or where the witness is taken into custody. If the judicial officer determines, after a hearing, that (1) the testimony of the witness is material in a criminal proceeding, and (2) it may become impracticable to secure the witness’ attendance by subpoena, the judicial officer shall set a reasonable bond to ensure the attendance of the witness at the hearing or trial when required. A witness who is unable to post the prescribed bond shall be committed to jail. After seven days a detained witness shall be released unless, prior thereto, the court, after hearing, orders further detention pursuant to an application filed in accordance with this Rule.
(b) By Order of Court. Upon application filed by a party in accordance with this Rule, the court may order the issuance of a body attachment of a witness and require the witness to post a bond in an amount fixed by the court to ensure attendance if the court is satisfied that (1) the testimony of the witness is material in a criminal proceeding, and (2) it may become impracticable to secure the witness’ attendance by subpoena. The sheriff or peace officer shall execute a body attachment by taking the witness into custody and forthwith before a judicial officer in the county where the action is pending or where the witness is taken into custody to post bond. A witness who is unable to post the prescribed bond shall be committed to jail. Within three days after the witness is taken into custody, the court shall hold a hearing with respect to any matter contained in the application or to the conditions of release imposed on the witness.
(c) Deposition of Witness in Custody. The court may order that the testimony of a material witness who is in custody be taken by deposition and may release the witness after its completion.
(d) Condition of Bond. The condition of a bond posted pursuant to this Rule shall be that the witness personally appear as required to give evidence in any court (1) in which charges are pending against a named defendant in a particular criminal action, or (2) in which a charging document may be filed based on the same acts or transactions, or (3) to which the action may be transferred or removed; and that the bond shall continue in effect until discharged by the court having jurisdiction of the action.
(e) Content of Application. An application for continued detention under section (a) of this Rule or for a body attachment under section (b) of this Rule shall be verified and shall contain the following:

(1) The name and present address of the witness;
(2) The designation of the action for which the testimony of the witness is required;
(3) A summary of the information or testimony of which the moving party believes the witness has knowledge;
(4) The materiality of the expected testimony of the witness;
(5) The reason for requiring a bond or incarceration to ensure the attendance of the witness.

Md. Crim. Causes. 4-267

This Rule is derived from former Rule 743 and M.D.R. 743 with the exception of section (e) which is derived from former Rule 740 b.

Adopted April 6, 1984, eff. July 1, 1984.

Code (1957, 1989 Repl.Vol.), Courts Art., ยง 9-203.