per se exclusionary rule in Maryland

2006In all three cases, the Court examined the interplay between Rule 4-212, first adopted in 1971, and CJP section 10-912, enacted in 1981 *269 in response to the Court of Appeals’s decisions in Johnson v. State, 282 Md. 314 , 384 A.2d 709 (1978), and McClain v. State, 288 Md. 456 , 419 A.2d 369 (1980), holding that any statement obtained after a delay in presentment of more than 24 hours was subject to a per se exclusionary rule.

2006In all three cases, the Court examined the interplay between Rule 4-212, first adopted in 1971, and CJP section 10-912, enacted in 1981 *269 in response to the Court of Appeals’s decisions in Johnson v. State, 282 Md. 314 , 384 A.2d 709 (1978), and McClain v. State, 288 Md. 456 , 419 A.2d 369 (1980), holding that any statement obtained after a delay in presentment of more than 24 hours was subject to a per se exclusionary rule.

1978Appellant urges us to fashion a per se exclusionary rule similar to that enunciated by the Supreme Court in Mallory v. United States, 354 U. S. 449 , 77 S. Ct. 1356 , 1 L.Ed.2d 1479 (1957), Upshaw v. United States, 335 U. S. 410 , 69 S. Ct. 170 , 93 L.Ed. 100 (1948), and McNabb v. United States, 318 U. S. 332 , 63 S. Ct. 608 , 87 L.Ed. 819 (1943).

1978Appellant urges us to fashion a per se exclusionary rule similar to that enunciated by the Supreme Court in Mallory v. United States, 354 U. S. 449 , 77 S. Ct. 1356 , 1 L.Ed.2d 1479 (1957), Upshaw v. United States, 335 U. S. 410 , 69 S. Ct. 170 , 93 L.Ed. 100 (1948), and McNabb v. United States, 318 U. S. 332 , 63 S. Ct. 608 , 87 L.Ed. 819 (1943).

1984Moreover, in Gilbert v. California, 388 U.S. 263, 273 , 87 S.Ct. 1951, 1957 , 18 L.Ed.2d 1178 (1967), the Supreme Court held that a per se exclusionary rule was to be applied as a sanction when a post-indictment lineup was illegal because of an absence of counsel.

1984Moreover, in Gilbert v. California, 388 U.S. 263, 273 , 87 S.Ct. 1951, 1957 , 18 L.Ed.2d 1178 (1967), the Supreme Court held that a per se exclusionary rule was to be applied as a sanction when a post-indictment lineup was illegal because of an absence of counsel.

1984The Kirby opinion continued: “We decline to depart from that rationale today by imposing a per se exclusionary rule upon testimony concerning an identification that took place long before the commencement of any prosecution whatever.” 406 U.S. at 690 , 92 S.Ct. at 1883 .

1984The Kirby opinion continued: "We decline to depart from that rationale today by imposing a per se exclusionary rule upon testimony concerning an identification that took place long before the commencement of any prosecution whatever." 406 U.S. at 690 , 92 S.Ct. at 1883 .

1984And the Court reasoned, the same is true of an extra-judicial identification when the likelihood of misidentification although not irreparable is "very substantial." [11] The Supreme Court observed in Manson v. Brathwaite, 432 U.S. 98 , 97 S.Ct. 2243 , 53 L.Ed.2d 140 (1977): " Stovall, with its reference to `the totality of the circumstances,' ... and Biggers with its continuing stress on the same totality, ... did not, singly or together establish a strict exclusionary rule or new standard of due process." Id. at 113, 97 S.Ct. at 2252.

1984And the Court reasoned, the same is true of an extra-judicial identification when the likelihood of misidentification although not irreparable is "very substantial." [11] The Supreme Court observed in Manson v. Brathwaite, 432 U.S. 98 , 97 S.Ct. 2243 , 53 L.Ed.2d 140 (1977): " Stovall, with its reference to `the totality of the circumstances,' ... and Biggers with its continuing stress on the same totality, ... did not, singly or together establish a strict exclusionary rule or new standard of due process." Id. at 113, 97 S.Ct. at 2252.

1978Appellant urges us to fashion a per se exclusionary rule similar to that enunciated by the Supreme Court in Mallory v. United States, 354 U. S. 449 , 77 S. Ct. 1356 , 1 L.Ed.2d 1479 (1957), Upshaw v. United States, 335 U. S. 410 , 69 S. Ct. 170 , 93 L.Ed. 100 (1948), and McNabb v. United States, 318 U. S. 332 , 63 S. Ct. 608 , 87 L.Ed. 819 (1943).

1978Appellant urges us to fashion a per se exclusionary rule similar to that enunciated by the Supreme Court in Mallory v. United States, 354 U. S. 449 , 77 S. Ct. 1356 , 1 L.Ed.2d 1479 (1957), Upshaw v. United States, 335 U. S. 410 , 69 S. Ct. 170 , 93 L.Ed. 100 (1948), and McNabb v. United States, 318 U. S. 332 , 63 S. Ct. 608 , 87 L.Ed. 819 (1943).

2006In all three cases, the Court examined the interplay between Rule 4-212, first adopted in 1971, and CJP section 10-912, enacted in 1981 *269 in response to the Court of Appeals’s decisions in Johnson v. State, 282 Md. 314 , 384 A.2d 709 (1978), and McClain v. State, 288 Md. 456 , 419 A.2d 369 (1980), holding that any statement obtained after a delay in presentment of more than 24 hours was subject to a per se exclusionary rule.

2006In all three cases, the Court examined the interplay between Rule 4-212, first adopted in 1971, and CJP section 10-912, enacted in 1981 *269 in response to the Court of Appeals’s decisions in Johnson v. State, 282 Md. 314 , 384 A.2d 709 (1978), and McClain v. State, 288 Md. 456 , 419 A.2d 369 (1980), holding that any statement obtained after a delay in presentment of more than 24 hours was subject to a per se exclusionary rule.

2004If an accused who is represented by counsel and who is made aware of his fifth amendment right volunteers a statement deemed helpful to his position at a bail hearing, there is no logical reason why that statement could not be used against him at trial.” Schmidt, 60 Md.App. at 95 , 481 A.2d at 245 .

2004If an accused who is represented by counsel and who is made aware of his fifth amendment right volunteers a statement deemed helpful to his position at a bail hearing, there is no logical reason why that statement could not be used against him at trial.” Schmidt, 60 Md.App. at 95 , 481 A.2d at 245 .

1984In 1969, the Court of Special Appeals of Maryland decided Palmer v. State, 5 Md.

1984Palmer, 5 Md.

1984There after, the Court of Special Appeals in Jackson v. State, 17 Md.App. 167, 171-72 , 300 A.2d 430, 434 , cert. denied, 268 Md. 749 (1973), and this Court in Foster v. State, 272 Md. 273, 286 , 323 A.2d 419, 425 (1973), cert. denied, 419 U.S. 1036 , 95 S.Ct. 520 , 42 L.Ed.2d 311 (1974), reached the same conclusion.

1984Thereafter, the Court of Special Appeals in Jackson v. State, 17 Md.

1984E.g., Billinger v. State, 9 Md.App. 628, 630 , 267 A.2d 275, 276 (1970); McChan v. State, 9 Md.App. 317, 319 , 264 A.2d 133, 135 (1970); Cook v. State, 8 Md.App. 243, 246-47 , 259 A.2d 326, 329 (1969); Joyner v. State, 7 Md.App. 692, 698-99 , 257 A.2d 444, 449 (1969); Watson v. State, 7 Md.App. 225, 234-35 , 255 A.2d 103, 108 (1969); Smith v. State, 6 Md.App. 59, 64-65 , 250 A.2d 285, 289 , cert. denied, 254 Md. 720 (1969), cert. denied, 397 U.S. 1057 , 90 S.Ct. 1402 , 25 L.Ed.2d 674 (1970).

1984E.g., Billinger v. State, 9 Md.App. 628, 630 , 267 A.2d 275, 276 (1970); McChan v. State, 9 Md.App. 317, 319 , 264 A.2d 133, 135 (1970); Cook v. State, 8 Md.App. 243, 246-47 , 259 A.2d 326, 329 (1969); Joyner v. State, 7 Md.App. 692, 698-99 , 257 A.2d 444, 449 (1969); Watson v. State, 7 Md.App. 225, 234-35 , 255 A.2d 103, 108 (1969); Smith v. State, 6 Md.App. 59, 64-65 , 250 A.2d 285, 289 , cert. denied, 254 Md. 720 (1969), cert. denied, 397 U.S. 1057 , 90 S.Ct. 1402 , 25 L.Ed.2d 674 (1970).

1984E.g., Billinger v. State, 9 Md.App. 628, 630 , 267 A.2d 275, 276 (1970); McChan v. State, 9 Md.App. 317, 319 , 264 A.2d 133, 135 (1970); Cook v. State, 8 Md.App. 243, 246-47 , 259 A.2d 326, 329 (1969); Joyner v. State, 7 Md.App. 692, 698-99 , 257 A.2d 444, 449 (1969); Watson v. State, 7 Md.App. 225, 234-35 , 255 A.2d 103, 108 (1969); Smith v. State, 6 Md.App. 59, 64-65 , 250 A.2d 285, 289 , cert. denied, 254 Md. 720 (1969), cert. denied, 397 U.S. 1057 , 90 S.Ct. 1402 , 25 L.Ed.2d 674 (1970).

1984There after, the Court of Special Appeals in Jackson v. State, 17 Md.App. 167, 171-72 , 300 A.2d 430, 434 , cert. denied, 268 Md. 749 (1973), and this Court in Foster v. State, 272 Md. 273, 286 , 323 A.2d 419, 425 (1973), cert. denied, 419 U.S. 1036 , 95 S.Ct. 520 , 42 L.Ed.2d 311 (1974), reached the same conclusion.

1984There after, the Court of Special Appeals in Jackson v. State, 17 Md.App. 167, 171-72 , 300 A.2d 430, 434 , cert. denied, 268 Md. 749 (1973), and this Court in Foster v. State, 272 Md. 273, 286 , 323 A.2d 419, 425 (1973), cert. denied, 419 U.S. 1036 , 95 S.Ct. 520 , 42 L.Ed.2d 311 (1974), reached the same conclusion.

1979App. 62 , 349 A. 2d 393 (1975), aff’d. 278 Md. 302 , and 2) the per se exclusionary rule adopted by the Court of Appeals in Johnson v. State, 282 Md. 314 , 384 A. 2d 709 , decided April 6, 1978, four days before the appellant’s trial below and seven months after his confessions.

1979App. 62 , 349 A. 2d 393 (1975), aff’d. 278 Md. 302 , and 2) the per se exclusionary rule adopted by the Court of Appeals in Johnson v. State, 282 Md. 314 , 384 A. 2d 709 , decided April 6, 1978, four days before the appellant’s trial below and seven months after his confessions.

1978"There is no war between the Constitution and common sense," Mapp, 367 U.S. at 657 , but the adoption of a per se exclusionary rule as the sanction for violation of Rule 723 a certainly does not recognize this.

1978There was simply no Sixth Amendment violation of the right to the assistance of counsel such as would invoke the per se exclusionary rule of United States v. Wade, 388 U. S. 218 , 87 S. Ct. 1926 , 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U. S. 263 , 87 S. Ct. 1951 , 18 L.Ed.2d 1178 (1967).

1978There was simply no Sixth Amendment violation of the right to the assistance of counsel such as would invoke the per se exclusionary rule of United States v. Wade, 388 U. S. 218 , 87 S. Ct. 1926 , 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U. S. 263 , 87 S. Ct. 1951 , 18 L.Ed.2d 1178 (1967).