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Rule 4-263 – Discovery in Circuit Court

May 13, 2021 | Criminal Prodcedure, Maryland

(a)Applicability. This Rule governs discovery and inspection in a circuit court.

Committee note: This Rule also governs discovery in actions transferred from District Court to circuit court upon a jury trial demand made in accordance with Rule 4-301(b)(1)(A). See Rule 4-301(c).

(b) Definitions. In this Rule, the following definitions apply:

(1)Defense. “Defense means an attorney for the defendant or a defendant who is acting without an attorney.
(2)Defense Witness. “Defense witness means a witness whom the defense intends to call at a hearing or at trial.
(3)Oral Statement. “Oral statement of a person means the substance of a statement of any kind by that person, whether or not reflected in an existing writing or recording.
(4)Provide. Unless otherwise agreed by the parties or required by Rule or order of court, “provide information or material means (A) to send or deliver it by mail, e-mail, facsimile transmission, or hand-delivery, or (B) to make the information or material available at a specified location for purposes of inspection if sending or delivering it would be impracticable because of the nature of the information or material.
(5)State’s Witness. “State’s witness means a witness whom the State’s Attorney intends to call at a hearing or at trial.

Cross reference: For the definition of “State’s Attorney, see Rule 4-102(l).

(6)Written Statement. “Written statement of a person:

(A) includes a statement in writing that is made, signed, or adopted by that person;
(B) includes the substance of a statement of any kind made by that person that is embodied or summarized in a writing or recording, whether or not signed or adopted by the person;
(C) includes a statement contained in a police or investigative report; but
(D) does not include attorney work product.
(c) Obligations of the Parties.

(1)Due Diligence. The State’s Attorney and defense shall exercise due diligence to identify all of the material and information that must be disclosed under this Rule.
(2)Scope of Obligations. The obligations of the State’s Attorney and the defense extend to material and information that must be disclosed under this Rule and that are in the possession or control of the attorney, members of the attorney’s staff, or any other person who either reports regularly to the attorney’s office or has reported to the attorney’s office in regard to the particular case.

Cross reference: For the obligations of the State’s Attorney, see State v. Williams, 392 Md. 194 (2006).

(d) Disclosure by the State’s Attorney. Without the necessity of a request, the State’s Attorney shall provide to the defense:

(1)Statements. All written and all oral statements of the defendant and of any co-defendant that relate to the offense charged and all material and information, including documents and recordings, that relate to the acquisition of such statements;
(2)Criminal Record. Prior criminal convictions, pending charges, and probationary status of the defendant and of any co-defendant;
(3)State’s Witnesses. As to each State’s witness the State’s Attorney intends to call to prove the State’s case in chief or to rebut alibi testimony:

(A) the name of the witness;
(B) except as provided under Code, Criminal Procedure Article, § 11-205 or Rule 16-934, the address and, if known to the State’s Attorney, the telephone number of the witness; and
(C) all written statements of the witness that relate to the offense charged;
(4)Prior Conduct. All evidence of other crimes, wrongs, or acts committed by the defendant that the State’s Attorney intends to offer at a hearing or at trial pursuant to Rule 5-404(b);
(5)Exculpatory Information. All material or information in any form, whether or not admissible, that tends to exculpate the defendant or negate or mitigate the defendant’s guilt or punishment as to the offense charged;
(6)Impeachment Information. All material or information in any form, whether or not admissible, that tends to impeach a State’s witness, including:

(A) evidence of prior conduct to show the character of the witness for untruthfulness pursuant to Rule 5-608(b);
(B) a relationship between the State’s Attorney and the witness, including the nature and circumstances of any agreement, understanding, or representation that may constitute an inducement for the cooperation or testimony of the witness;
(C) prior criminal convictions, pending charges, or probationary status that may be used to impeach the witness, but the State’s Attorney is not required to investigate the criminal record of the witness unless the State’s Attorney knows or has reason to believe that the witness has a criminal record;
(D) an oral statement of the witness, not otherwise memorialized, that is materially inconsistent with another statement made by the witness or with a statement made by another witness;
(E) a medical or psychiatric condition or addiction of the witness that may impair the witness’s ability to testify truthfully or accurately, but the State’s Attorney is not required to inquire into a witness’s medical, psychiatric, or addiction history or status unless the State’s Attorney has information that reasonably would lead to a belief that an inquiry would result in discovering a condition that may impair the witness’s ability to testify truthfully or accurately;
(F) the fact that the witness has taken but did not pass a polygraph examination; and
(G) the failure of the witness to identify the defendant or a co-defendant;

Cross reference: See Brady v. Maryland, 373 U.S. 83 (1963); Kyles v. Whitley, 514 U.S. 419 (1995); Giglio v. U.S., 405 U.S. 150 (1972); U.S. v. Agurs, 427 U.S. 97 (1976); Thomas v. State, 372 Md. 342 (2002); Goldsmith v. State, 337 Md. 112 (1995); and Lyba v. State, 321 Md. 564 (1991).

(7)Searches, Seizures, Surveillance, and Pretrial Identification. All relevant material or information regarding:

(A) specific searches and seizures, eavesdropping, and electronic surveillance including wiretaps; and
(B) pretrial identification of the defendant by a State’s witness;

Committee note: In addition to disclosure of a pretrial identification of a defendant by a State’s witness, in some cases, disclosure of a pretrial identification of a co-defendant by a State’s witness also may be required. See Green v. State, 456 Md. 97 (2017).

(8)Reports or Statements of Experts. As to each expert consulted by the State’s Attorney in connection with the action:

(A) the expert’s name and address, the subject matter of the consultation, the substance of the expert’s findings and opinions, and a summary of the grounds for each opinion;
(B) the opportunity to inspect and copy all written reports or statements made in connection with the action by the expert, including the results of any physical or mental examination, scientific test, experiment, or comparison; and
(C) the substance of any oral report and conclusion by the expert;
(9)Evidence for Use at Trial. The opportunity to inspect, copy, and photograph all documents, computer-generated evidence as defined in Rule 2-504.3(a), recordings, photographs, or other tangible things that the State’s Attorney intends to use at a hearing or at trial; and
(10)Property of the Defendant. The opportunity to inspect, copy, and photograph all items obtained from or belonging to the defendant, whether or not the State’s Attorney intends to use the item at a hearing or at trial.
(e) Disclosure by Defense. Without the necessity of a request, the defense shall provide to the State’s Attorney:

(1)Defense Witness. The name and, except when the witness declines permission, the address of each defense witness other than the defendant, together with all written statements of each such witness that relate to the subject matter of the testimony of that witness. Disclosure of the identity and statements of a person who will be called for the sole purpose of impeaching a State’s witness is not required until after the State’s witness has testified at trial.
(2)Reports or Statements of Experts. As to each defense witness the defense intends to call to testify as an expert witness:

(A) the expert’s name and address, the subject matter on which the expert is expected to testify, the substance of the findings and the opinions to which the expert is expected to testify, and a summary of the grounds for each opinion;
(B) the opportunity to inspect and copy all written reports or statements made in connection with the action by the expert, including the results of any physical or mental examination, scientific test, experiment, or comparison; and
(C) the substance of any oral report and conclusion by the expert;
(3)Character Witnesses. As to each defense witness the defense intends to call to testify as to the defendant’s veracity or other relevant character trait, the name and, except when the witness declines permission, the address of that witness;
(4)Alibi Witnesses. If the State’s Attorney has designated the time, place, and date of the alleged offense, the name and, except when the witness declines permission, the address of each person other than the defendant whom the defense intends to call as a witness to show that the defendant was not present at the time, place, or date designated by the State’s Attorney;
(5)Insanity Defense. Notice of any intention to rely on a defense of not criminally responsible by reason of insanity, and the name and, except when the witness declines permission, the address of each defense witness other than the defendant in support of that defense; and

Committee note: The address of an expert witness must be provided. See subsection (e)(2)(A) of this Rule.

(6)Defense of Duress. Notice of an intention to rely on a defense of duress pursuant to Code, Criminal Law Article, § 11-306(c).
(7)Documents, Computer-Generated Evidence, and Other Things. The opportunity to inspect, copy, and photograph any documents, computer-generated evidence as defined in Rule 2-504.3(a), recordings, photographs, or other tangible things that the defense intends to use at a hearing or at trial.
(f) Person of the Defendant.

(1)On Request. On request of the State’s Attorney that includes reasonable notice of the time and place, the defendant shall appear for the purpose of:

(A) providing fingerprints, photographs, handwriting exemplars, or voice exemplars;
(B) appearing, moving, or speaking for identification in a lineup; or
(C) trying on clothing or other articles.
(2)On Motion. On motion filed by the State’s Attorney, with reasonable notice to the defense, the court, for good cause shown, shall order the defendant to appear and (A) permit the taking of buccal samples, samples of other materials of the body, or specimens of blood, urine, saliva, breath, hair, nails, or material under the nails or (B) submit to a reasonable physical or mental examination.
(g) Matters Not Discoverable.

(1)By Any Party. Notwithstanding any other provision of this Rule, neither the State’s Attorney nor the defense is required to disclose (A) the mental impressions, trial strategy, personal beliefs, or other privileged attorney work product or (B) any other material or information if the court finds that its disclosure is not constitutionally required and would entail a substantial risk of harm to any person that outweighs the interest in disclosure.
(2)By the Defense. The State’s Attorney is not required to disclose the identity of a confidential informant unless the State’s Attorney intends to call the informant as a State’s witness or unless the failure to disclose the informant’s identity would infringe a constitutional right of the defendant.
(h) Time for Discovery. Unless the court orders otherwise:

(1) the State’s Attorney shall make disclosure pursuant to section (d) of this Rule within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 4-213(c), and
(2) the defense shall make disclosure pursuant to section (e) of this Rule no later than 30 days before the first scheduled trial date, except that asserting a defense pursuant to subsection (e)(6) of this Rule shall be made at least 10 days before the first scheduled trial date.
(i) Motion to Compel Discovery.

(1)Time. A motion to compel discovery based on the failure to provide discovery within the time required by section (h) of this Rule shall be filed within ten days after the date the discovery was due. A motion to compel based on inadequate discovery shall be filed within ten days after the date the discovery was received.
(2)Content. A motion shall specifically describe the information or material that has not been provided.
(3)Response. A response may be filed within five days after service of the motion.
(4)Certificate. The court need not consider any motion to compel discovery unless the moving party has filed a certificate describing good faith attempts to discuss with the opposing party the resolution of the dispute and certifying that they are unable to reach agreement on the disputed issues. The certificate shall include the date, time, and circumstances of each discussion or attempted discussion.
(j) Continuing Duty to Disclose. Each party is under a continuing obligation to produce discoverable material and information to the other side. A party who has responded to a request or order for discovery and who obtains further material information shall supplement the response promptly.
(k) Manner of Providing Discovery.

(1)By Agreement. Discovery may be accomplished in any manner mutually agreeable to the parties. The parties shall file with the court a statement of their agreement.
(2)If No Agreement. In the absence of an agreement, the party generating the discovery material shall (A) serve on the other party copies of all written discovery material, together with a list of discovery materials in other forms and a statement of the time and place when these materials may be inspected, copied, and photographed, and (B) promptly file with the court a notice that (i) reasonably identifies the information provided and (ii) states the date and manner of service. On request, the party generating the discovery material shall make the original available for inspection and copying by the other party.
(3)Requests, Motions, and Responses to Be Filed With the Court. Requests for discovery, motions for discovery, motions to compel discovery, and any responses to the requests or motions shall be filed with the court.
(4)Discovery Material Not to Be Filed With the Court. Except as otherwise provided in these Rules or by order of court, discovery material shall not be filed with the court. This section does not preclude the use of discovery material at trial or as an exhibit to support or oppose a motion.
(l) Retention. The party generating discovery material shall retain the original until the earlier of the expiration of (i) any sentence imposed on the defendant or (ii) the retention period that the material would have been retained under the applicable records retention and disposal schedule had the material been filed with the court.
(m) Protective Orders.

(1)Generally. On motion of a party, a person from whom discovery is sought, or a person named or depicted in an item sought to be discovered, the court, for good cause shown, may order that specified disclosures be denied or restricted in any manner that justice requires.
(2)In Camera Proceedings. On request of party, or a person from whom discovery is sought, or a person named or depicted in an item sought to be discovered, the court may permit any showing of cause for denial or restriction of disclosures to be made in camera. A record shall be made of both in court and in camera proceedings. Upon the entry of an order granting relief in an in camera proceeding, all confidential portions of the in camera portion of the proceeding shall be sealed, preserved in the records of the court, and made available to the appellate court in the event of an appeal.
(n) Sanctions. If at any time during the proceedings the court finds that a party has failed to comply with this Rule or an order issued pursuant to this Rule, the court may order that party to permit the discovery of the matters not previously disclosed, strike the testimony to which the undisclosed matter relates, grant a reasonable continuance, prohibit the party from introducing in evidence the matter not disclosed, grant a mistrial, or enter any other order appropriate under the circumstances. The failure of a party to comply with a discovery obligation in this Rule does not automatically disqualify a witness from testifying. If a motion is filed to disqualify the witness’s testimony, disqualification is within the discretion of the court.

Md. Crim. Causes. 4-263

This Rule is new and is derived in part from former Rule 741 and the 1998 version of former Rule 4-263.

Adopted April 8, 2008, eff. July 1, 2008. Amended March 9, 2010, eff. July 1, 2010; June 7, 2011, eff. July 1, 2011; June 11, 2012, eff. June 12, 2012; Oct. 4, 2012, eff. Jan. 1, 2013; Nov. 1, 2012, eff. Jan. 1, 2013; Oct. 17, 2013, eff. Jan. 1, 2014; Dec. 7, 2015, eff. Jan. 1, 2016; June 6, 2016, eff. July 1, 2016; June 20, 2017, eff. Aug. 1, 2017; Oct. 10, 2018, eff. Jan. 1, 2019; amended June 6, 2020, eff. June 29, 2020; amended June 29, 2020, eff. August 1, 2020.

HISTORICAL NOTES

2010 Orders

The March 9, 2010, order, in subsec. (b), added the definition for provide; in the heading for subsec. (k), deleted “; Material Not to be Filed with Court; added a new subsec. (k)(3); redesignated former subsec. (k)(3) to be subsec. (k)(4); and, in the new subsec. (k)(4), substituted “Discovery Material Not to be Filed with the Court for “Not to be Filed with the Court.

2011 Orders

The June 7, 2011, order added section (d)(11).

2012 Orders

The June 11, 2012, amended section (h) to add a section reference to a reference to Rule 4-213.

The October 4, 2012, order amended language in subsections (m)(1) and (2) that refers to persons named or depicted in an item sought to be discovered and made stylistic changes.

The November 1, 2012, order added a Committee note after section (a).

2013 Orders

The October 17, 2013, order, made amendments to conform an internal reference in the cross reference after subsection (b)(5) to the relettering of Rule 4-102; added a requirement that the State provide the telephone numbers of witnesses under certain conditions; and made stylistic changes.

2015 Orders

The December 7, 2015, order, deletes subsection (d)(11), adds new subsection (e)(6) providing for disclosure of certain affirmative defenses, adds language to subsection (h)(2) providing for a certain exception to the time for discovery, and made stylistic changes.

2016 Orders

The June 6, 2016, order revised an internal reference in the Rule.

Prior Rules:

Rule 2-263, adopted April 6, 1984, eff. July 1, 1984, amended April 7, 1986, eff. July 1, 1986, amended Feb. 10, 1998, eff. July 1, 1998, related to discovery in circuit court, rescinded April 8, 2008, eff. July 1, 2008. See, now, this rule.

2017 Orders

The June 20, 2017 order, revised an internal reference.

2018 Orders

The October 10, 2018 order added a Committee note following subsection (d)(7).