Appendix E -6 Defendant's Request for Judicial Review of Prior Bad Acts Evidence

• Library: How to Try a Murder Case: Pretrial and Trial Guidelines for Prosecution and Defense (ABA) (2011 Ed.)

APPENDIX E-6 Defendant's Request for Judicial Review of Prior Bad Acts Evidence

The Defendant, by undersigned counsel, respectfully requests that this Honorable Court conduct a pretrial review of all prior bad act evidence¹ the State intends to introduce at the capital sentencing proceeding, and in support thereof, states the following:

I. The Defendant is charged with first-degree murder and related offenses in the above-captioned matter.
II. The State has filed a Notice of Intention to Seek a Sentence of Death.
III. Article 27, § 413(c)(1) details the type of evidence admissible in a capital sentencing hearing. The Maryland Court of Appeals has stated that "when read as a whole, [art. 27,] § 413(c)(1) must be construed as precluding the admission of evidence relating to other crimes for which there has not been a conviction or a plea of guilty or nolo contendere." Scott v. State, 297 Md. 235, 248, 465 A.2d 1126, 1133-34 (1983). See Md. Ann. Code Art. 27 § 413(c) (1) (Supp. 1999).
IV. In Scott v. State, the Court of Appeals vacated Scott's death sentence for premeditated murder after finding that the trial court "improperly admitted certain evidence tending to show that the accused had committed two unrelated murders with which he had been charged but for which there had been no conviction." Id. at 297 Md. at 236, 465 A.2d at 1128. The issue before the Court of Appeals involved the interpretation of Article 27, § 413(c)(1). The State argued that the evidence was admissible under § 413(c)(1)(v). The Court of Appeals disagreed, holding that § 413(c)(1) precludes the admission of evidence relating to other unconvicted crimes. Scott, 297 Md. at 248, 465 A.2d at 1133-34. Considering § 413(c)(1) as a whole, the Court of Appeals explained: "§ 413(c)(1)(i) establishes a more stringent standard of relevance for the admission of evidence relating to other crimes in a death penalty case than is applied in a non-death penalty case. . . . As a result, § 413(c)(1)(iii), like § 413(c)(1)(i), serves the purpose of moderating the significantly prejudicial nature of evidence of unrelated crimes in the face of the unique severity of the death penalty." Scott, 297 Md. at 247-48, 465 A.2d at 1133.
V. In accordance with the Scott decision, it is, therefore, incumbent upon the trial court to preliminarily determine if any evidence that the State intends to introduce at the capital sentencing proceeding is beyond the scope of that which has been sanctioned by Scott v. State, and/ or is so unduly prejudicial and/or so inflammatory as to violate the principles of fundamental fairness and the constitutional requirements of the Due Process Clause.
VI. In making this determination, the Court must first be advised of the exact nature of the prior bad acts evidence that the State intends to

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