availability privilege in Maryland

1989In Taylor v. Best, 746 F.2d 220, 222 (4th Cir.1984), cert. denied, 474 U.S. 982 , 106 S.Ct. 388 , 88 L.Ed.2d 340 (1985), the United States Court of Appeals for the Fourth Circuit recognized that “it is possible that post-conviction incriminating evidence could be used against an inmate who had been convicted and sentenced but whose conviction was being *10 appealed.” Rather than determining the availability of the privilege on the type of proceeding involved, “we must base it on the nature of the statement or admission and the exposure which it invites,” 746 F.2d at 223 , quoting In re Gault,

1989In Taylor v. Best, 746 F.2d 220, 222 (4th Cir.1984), cert. denied, 474 U.S. 982 , 106 S.Ct. 388 , 88 L.Ed.2d 340 (1985), the United States Court of Appeals for the Fourth Circuit recognized that “it is possible that post-conviction incriminating evidence could be used against an inmate who had been convicted and sentenced but whose conviction was being *10 appealed.” Rather than determining the availability of the privilege on the type of proceeding involved, “we must base it on the nature of the statement or admission and the exposure which it invites,” 746 F.2d at 223 , quoting In re Gault,

2026Because “[n]one of the parties have briefed preemption or otherwise address the availability of a claim under state nuisance law[,]” the Court left “the matter open for consideration on remand.” Id.

2017Although in Suburban Hospital this Court did not “undertake] to set the outer limits of the availability of waiver of the separate document requirement in order to preserve an appeal in Maryland,” 362 Md. at 156 , 763 A.2d 185 , further clarity was offered in Taha v. Southern Management Corp., 367 Md. 564 , 790 A.2d 11 (2002).

2017Although in Suburban Hospital this Court did not “undertake] to set the outer limits of the availability of waiver of the separate document requirement in order to preserve an appeal in Maryland,” 362 Md. at 156 , 763 A.2d 185 , further clarity was offered in Taha v. Southern Management Corp., 367 Md. 564 , 790 A.2d 11 (2002).

2017Although in Suburban Hospital this Court did not “undertake] to set the outer limits of the availability of waiver of the separate document requirement in order to preserve an appeal in Maryland,” 362 Md. at 156 , 763 A.2d 185 , further clarity was offered in Taha v. Southern Management Corp., 367 Md. 564 , 790 A.2d 11 (2002).

2017Although in Suburban Hospital this Court did not “undertake] to set the outer limits of the availability of waiver of the separate document requirement in order to preserve an appeal in Maryland,” 362 Md. at 156 , 763 A.2d 185 , further clarity was offered in Taha v. Southern Management Corp., 367 Md. 564 , 790 A.2d 11 (2002).

2009Id. (emphasis supplied) The State contends that even if Detective Barba’s statements were misleading, the appellee’s “understanding of his rights ... were not affected by Detective Barba’s comments.” Its protestation that, even if the Miranda advisements were inadequate and ineffective, the appellee was nonetheless aware of them rings hollow in the face of Miranda’s stern command.: The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in

2007Corp. v. Mariner, 144 Md.App. 188, 199 , 797 A.2d 110 (2002) (stating that, “[fjor the instruction to be warranted, the missing witness must be in the ‘peculiar control’ of one party”) (citing Hayes, 57 Md.App. at 494-95 , 470 A.2d 1301 ); DiLeo v. Nugent, 88 Md.App. 59, 70 , 592 A.2d 1126 (1991) (stating that “a missing witness instruction is improper when a witness is equally available to both sides”) (citing Hayes, 57 Md.App. at 494-95 , 470 A.2d 1301 ). 10 For *187 the purposes of this case, we need not decide whether there is a meaningful difference in the availability requirement between

2007Corp. v. Mariner, 144 Md.App. 188, 199 , 797 A.2d 110 (2002) (stating that, “[fjor the instruction to be warranted, the missing witness must be in the ‘peculiar control’ of one party”) (citing Hayes, 57 Md.App. at 494-95 , 470 A.2d 1301 ); DiLeo v. Nugent, 88 Md.App. 59, 70 , 592 A.2d 1126 (1991) (stating that “a missing witness instruction is improper when a witness is equally available to both sides”) (citing Hayes, 57 Md.App. at 494-95 , 470 A.2d 1301 ). 10 For *187 the purposes of this case, we need not decide whether there is a meaningful difference in the availability requirement between

2007Corp. v. Mariner, 144 Md.App. 188, 199 , 797 A.2d 110 (2002) (stating that, “[fjor the instruction to be warranted, the missing witness must be in the ‘peculiar control’ of one party”) (citing Hayes, 57 Md.App. at 494-95 , 470 A.2d 1301 ); DiLeo v. Nugent, 88 Md.App. 59, 70 , 592 A.2d 1126 (1991) (stating that “a missing witness instruction is improper when a witness is equally available to both sides”) (citing Hayes, 57 Md.App. at 494-95 , 470 A.2d 1301 ). 10 For *187 the purposes of this case, we need not decide whether there is a meaningful difference in the availability requirement between

2007Corp. v. Mariner, 144 Md.App. 188, 199 , 797 A.2d 110 (2002) (stating that, “[fjor the instruction to be warranted, the missing witness must be in the ‘peculiar control’ of one party”) (citing Hayes, 57 Md.App. at 494-95 , 470 A.2d 1301 ); DiLeo v. Nugent, 88 Md.App. 59, 70 , 592 A.2d 1126 (1991) (stating that “a missing witness instruction is improper when a witness is equally available to both sides”) (citing Hayes, 57 Md.App. at 494-95 , 470 A.2d 1301 ). 10 For *187 the purposes of this case, we need not decide whether there is a meaningful difference in the availability requirement between

2007Corp. v. Mariner, 144 Md.App. 188, 199 , 797 A.2d 110 (2002) (stating that, “[fjor the instruction to be warranted, the missing witness must be in the ‘peculiar control’ of one party”) (citing Hayes, 57 Md.App. at 494-95 , 470 A.2d 1301 ); DiLeo v. Nugent, 88 Md.App. 59, 70 , 592 A.2d 1126 (1991) (stating that “a missing witness instruction is improper when a witness is equally available to both sides”) (citing Hayes, 57 Md.App. at 494-95 , 470 A.2d 1301 ). 10 For *187 the purposes of this case, we need not decide whether there is a meaningful difference in the availability requirement between

2007Corp. v. Mariner, 144 Md.App. 188, 199 , 797 A.2d 110 (2002) (stating that, “[fjor the instruction to be warranted, the missing witness must be in the ‘peculiar control’ of one party”) (citing Hayes, 57 Md.App. at 494-95 , 470 A.2d 1301 ); DiLeo v. Nugent, 88 Md.App. 59, 70 , 592 A.2d 1126 (1991) (stating that “a missing witness instruction is improper when a witness is equally available to both sides”) (citing Hayes, 57 Md.App. at 494-95 , 470 A.2d 1301 ). 10 For *187 the purposes of this case, we need not decide whether there is a meaningful difference in the availability requirement between

2005See also Owens v. State, 352 Md. 663, 681, 685, 690 , 724 A.2d 43, 52, 54 , 56 cert. denied, 527 U.S. 1012 , 119 S.Ct. 2354 , 144 L.Ed.2d 250 (1999) (Offense under former Art. 27, § 463(a)(3), is a “strict liability” offense “that dispenses with any mens rea requirement”); Garnett v. State, 332 Md. 571, 584-585 , 632 A.2d 797 (1993) (Former Art. 27, § 463, “defines a strict liability offense that does not require the State to prove mens rea”).

2005See also Owens v. State, 352 Md. 663, 681, 685, 690 , 724 A.2d 43, 52, 54 , 56 cert. denied, 527 U.S. 1012 , 119 S.Ct. 2354 , 144 L.Ed.2d 250 (1999) (Offense under former Art. 27, § 463(a)(3), is a “strict liability” offense “that dispenses with any mens rea requirement”); Garnett v. State, 332 Md. 571, 584-585 , 632 A.2d 797 (1993) (Former Art. 27, § 463, “defines a strict liability offense that does not require the State to prove mens rea”).

2003Id. at 207 , 115 S.Ct. 797 .

2003Id. at 207 , 115 S.Ct. 797 .

2003The availability of such a defense, Saunders v. Mullinix established, would not negate the tort of conversion generally, although it would negate the aggravating circumstance of “actual malice.” In Keys v. Chrysler Credit Corp., 303 Md. at 414 , 494 A.2d 200 , Judge McAuliffe explained the difference between the required intent and the irrelevant improper motive.

2003The availability of such a defense, Saunders v. Mullinix established, would not negate the tort of conversion generally, although it would negate the aggravating circumstance of “actual malice.” In Keys v. Chrysler Credit Corp., 303 Md. at 414 , 494 A.2d 200 , Judge McAuliffe explained the difference between the required intent and the irrelevant improper motive.

2000Without undertaking to set the outer limits of the availability of waiver of the separate document requirement in order to preserve an appeal in Maryland, we hold that there has been a waiver in the instant matter in which the Circuit Court for Montgomery County clearly intended the docket entries made by that court’s clerk, based upon the jury verdict, to be a final judgment and where no party has objected to the absence of a separate document. 5 This holding was foreshadowed by our decision in Byrum, 360 Md. 23 , 756 A.2d 560 , which presented the converse of the appellate jurisdiction issue

2000Without undertaking to set the outer limits of the availability of waiver of the separate document requirement in order to preserve an appeal in Maryland, we hold that there has been a waiver in the instant matter in which the Circuit Court for Montgomery County clearly intended the docket entries made by that court’s clerk, based upon the jury verdict, to be a final judgment and where no party has objected to the absence of a separate document. 5 This holding was foreshadowed by our decision in Byrum, 360 Md. 23 , 756 A.2d 560 , which presented the converse of the appellate jurisdiction issue

1998Ritchie, 324 Md. at 354 , 597 A.2d 432 .

1998Ritchie, 324 Md. at 354 , 597 A.2d 432 .

1996In Trammel v. United States, 445 U.S. 40, 48 , 100 S.Ct. 906, 911-12 , 63 L.Ed.2d 186 (1980), the Supreme Court recognized the important policy concerns that are central to the marital privilege and said that “the long history of the privilege suggests that it ought not to be casually set aside.” Nevertheless, we need not resolve the thorny issue concerning the availability of the privilege, in light of our decision to reverse on other grounds. 7 We observe that, on remand, the parties may present other evidence concerning the status of the Hagez marriage.

1996In Trammel v. United States, 445 U.S. 40, 48 , 100 S.Ct. 906, 911-12 , 63 L.Ed.2d 186 (1980), the Supreme Court recognized the important policy concerns that are central to the marital privilege and said that “the long history of the privilege suggests that it ought not to be casually set aside.” Nevertheless, we need not resolve the thorny issue concerning the availability of the privilege, in light of our decision to reverse on other grounds. 7 We observe that, on remand, the parties may present other evidence concerning the status of the Hagez marriage.

1989In Taylor v. Best, 746 F.2d 220, 222 (4th Cir.1984), cert. denied, 474 U.S. 982 , 106 S.Ct. 388 , 88 L.Ed.2d 340 (1985), the United States Court of Appeals for the Fourth Circuit recognized that “it is possible that post-conviction incriminating evidence could be used against an inmate who had been convicted and sentenced but whose conviction was being *10 appealed.” Rather than determining the availability of the privilege on the type of proceeding involved, “we must base it on the nature of the statement or admission and the exposure which it invites,” 746 F.2d at 223 , quoting In re Gault,

1989In Taylor v. Best, 746 F.2d 220, 222 (4th Cir.1984), cert. denied, 474 U.S. 982 , 106 S.Ct. 388 , 88 L.Ed.2d 340 (1985), the United States Court of Appeals for the Fourth Circuit recognized that “it is possible that post-conviction incriminating evidence could be used against an inmate who had been convicted and sentenced but whose conviction was being *10 appealed.” Rather than determining the availability of the privilege on the type of proceeding involved, “we must base it on the nature of the statement or admission and the exposure which it invites,” 746 F.2d at 223 , quoting In re Gault,

1989In Taylor v. Best, 746 F.2d 220, 222 (4th Cir.1984), cert. denied, 474 U.S. 982 , 106 S.Ct. 388 , 88 L.Ed.2d 340 (1985), the United States Court of Appeals for the Fourth Circuit recognized that “it is possible that post-conviction incriminating evidence could be used against an inmate who had been convicted and sentenced but whose conviction was being *10 appealed.” Rather than determining the availability of the privilege on the type of proceeding involved, “we must base it on the nature of the statement or admission and the exposure which it invites,” 746 F.2d at 223 , quoting In re Gault,

1986Although certain dicta in both Mills and Smith suggested that the availability of the privilege might continue even beyond sentencing, that issue was not before either court on the facts of the two cases. 6 *334 Indeed, the holding of Smith v. State was clear “that the Fifth Amendment privilege against self-incrimination is available to one in the position of the witness Montgomery.” 283 Md. at 191 , 388 A.2d 539 .

1986Although certain dicta in both Mills and Smith suggested that the availability of the privilege might continue even beyond sentencing, that issue was not before either court on the facts of the two cases. 6 *334 Indeed, the holding of Smith v. State was clear “that the Fifth Amendment privilege against self-incrimination is available to one in the position of the witness Montgomery.” 283 Md. at 191 , 388 A.2d 539 .

1975To hold otherwise, in my judgment, makes the availability of the privilege merely depend upon the label attached. (2) Wholly apart from the violation of petitioners’ rights under the self-incrimination clause of the Fifth Amendment, petitioners’ confinement would appear to be inconsistent with the due process principles set forth by the Supreme Court in McNeil v. Director, Patuxent Institution, 407 U. S. 245 , 92 S. Ct. 2083 , 32 L.Ed.2d 719 (1972).

1975To hold otherwise, in my judgment, makes the availability of the privilege merely depend upon the label attached. (2) Wholly apart from the violation of petitioners’ rights under the self-incrimination clause of the Fifth Amendment, petitioners’ confinement would appear to be inconsistent with the due process principles set forth by the Supreme Court in McNeil v. Director, Patuxent Institution, 407 U. S. 245 , 92 S. Ct. 2083 , 32 L.Ed.2d 719 (1972).

1975The majority opinion correctly points out that this Court in Matter of Spalding, supra, 273 Md. at 703-705, 710 , viewed Gault, In re Winship, 397 U. S. 358, 359 , 90 S. Ct. 1068 , 25 L.Ed.2d 368 (1970), and Ivan V. v. City of New York, 407 U. S. 203 , 92 S. Ct. 1951 , 32 L.Ed.2d 659 (1972), as establishing a “two-pronged” standard for determining whether juvenile proceedings based on the juvenile’s alleged misconduct should be considered the same as adult criminal proceedings with respect to the applicability of certain constitutional safeguards, including the privilege against self-incrimina

1975The majority opinion correctly points out that this Court in Matter of Spalding, supra, 273 Md. at 703-705, 710 , viewed Gault, In re Winship, 397 U. S. 358, 359 , 90 S. Ct. 1068 , 25 L.Ed.2d 368 (1970), and Ivan V. v. City of New York, 407 U. S. 203 , 92 S. Ct. 1951 , 32 L.Ed.2d 659 (1972), as establishing a “two-pronged” standard for determining whether juvenile proceedings based on the juvenile’s alleged misconduct should be considered the same as adult criminal proceedings with respect to the applicability of certain constitutional safeguards, including the privilege against self-incrimina