HB 40
Department of Legislative Services
Maryland General Assembly
2020 Session
FISCAL AND POLICY NOTE
Enrolled - Revised
House Bill 40 (Delegate Barron, et al.)
Judiciary Judicial Proceedings
Criminal Procedure - Evidence - Causing Unavailability of Witness
This emergency bill lowers, from clear and convincing evidence to a preponderance of the
evidence, the standard of proof needed to admit evidence under a limited exception to the
hearsay rule in a criminal case involving specified felony drug crimes or a “crime of
violence” when a statement is offered against a party who, through wrongdoing, has caused
the unavailability of the witness who made the statement.
Fiscal Summary
State Effect: None. The bill is procedural and does not materially affect State finances.
Local Effect: None. The bill is procedural and does not materially affect local finances.
Small Business Effect: None.
Analysis
Current Law: While evidentiary rules generally exclude hearsay from being admitted
into evidence, there are exceptions. Under § 10-901 of the Courts and Judicial Proceedings
Article, a statement is not excluded by the hearsay rule and is admissible during the
criminal trial of a defendant charged with a felony violation of Title 5 of the Criminal Law
Article (controlled dangerous substances) or a crime of violence under § 14-101 of the
Criminal Law Article if the statement is offered against a party that has engaged in,
directed, or conspired to commit wrongdoing that was intended to and did render the
witness unavailable.
Before admitting a statement under this exception to the hearsay rule, the court must hold
a hearing outside the presence of the jury at which the Maryland Rules of Evidence are
strictly applied. The court must find by clear and convincing evidence that the party against
whom the statement is offered has engaged in specified activities that rendered the witness
unavailable.
A statement entered under this exception may not be introduced into evidence unless it was
made under oath and subject to the penalties of perjury at a proceeding or in a deposition,
was written and signed by the declarant, or was recorded at the same time the statement
was made.
As soon as practicable after learning that the declarant is unavailable, the party offering the
statement must notify the adverse party of its intention to offer the statement, the particulars
of the statement, and the identity of the witness through whom the statement will be
offered.
Maryland Rule 5-804 specifies that the “unavailability of a witness” includes situations in
which the declarant (1) is exempted by a court ruling of privilege from testifying;
(2) refuses to testify despite a court order to do so; (3) testifies to a lack of memory of the
subject matter of the declarant’s statement; (4) is unable to be present or testify because of
death or then existing illness or infirmity; or (5) is absent from the hearing and the party
offering the statement has been unable to procure the declarant’s attendance by process or
other reasonable means.
Related Crimes
The crimes of inducing false testimony or avoidance of a subpoena, retaliation for
testimony, and intimidating or corrupting a juror are misdemeanors that subject a violator
to imprisonment for up to 10 years and/or a $5,000 maximum fine. However, if the
applicable testimony or evidence relates to a felony violation of Title 5 of the Criminal
Law Article (controlled dangerous substances), a crime of violence under § 14-101 of the
Criminal Law Article, or a conspiracy or solicitation to commit such a crime, the offense
is a felony, punishable by imprisonment for up to 20 years. A sentence imposed for any of
these crimes may be separate from and consecutive to or concurrent with a sentence for
any crime based on the act establishing the violation.
Background: Forfeiture by wrongdoing is an exception to the hearsay rule and the right
of criminal defendants to confront the witnesses against them. Forfeiture by wrongdoing
typically occurs when a defendant intentionally or wrongfully makes the declarant of a
statement unavailable to testify. The doctrine of forfeiture by wrongdoing is often
mentioned in connection to witness intimidation.
HB 40/ Page 2
The evidentiary standard known as “preponderance of the evidence” has been described as
requiring evidence sufficient to establish that a fact is “more likely true than not true,”
“more probable than not,” or that amounts to at least 51% of the evidence. “Preponderance
of the evidence” is the standard applicable in most civil cases. “Clear and convincing
evidence” is evidence that the contention is highly probable. The burden that must be met
for the clear and convincing evidentiary standard is greater than a preponderance of the
evidence but less than evidence that is “beyond a reasonable doubt.” Federal courts and
courts in several states use the preponderance of the evidence standard in cases involving
forfeiture by wrongdoing.
Additional Information
Prior Introductions: SB 211 of 2019 received an unfavorable report from the Senate
Judicial Proceedings Committee. Its cross file, HB 1303, was referred to the House Rules
and Executive Nominations Committee, but no further action was taken.
Designated Cross File: SB 64 (Senator Lee) - Judicial Proceedings.
Information Source(s): Judiciary (Administrative Office of the Courts); Office of the
Public Defender; Maryland State’s Attorneys’ Association; Black’s Law Dictionary;
University of Baltimore Law Review; The Baltimore Sun; Department of Legislative
Services
Fiscal Note History: First Reader - January 14, 2020
rh/jkb Third Reader - March 14, 2020
Revised - Amendment(s) - March 14, 2020
Enrolled - April 2, 2020
Revised - Amendment(s) - April 2, 2020
Analysis by: Amy A. Devadas Direct Inquiries to:
(410) 946-5510
(301) 970-5510
HB 40/ Page 3


Statutes affected:
Text - First - Criminal Procedure - Evidence - Causing Unavailability of Witness: 10-901 Courts and Judicial Proceedings
Text - Third - Criminal Procedure - Evidence - Causing Unavailability of Witness: 10-901 Courts and Judicial Proceedings
Text - Enrolled - Criminal Procedure - Evidence - Causing Unavailability of Witness: 10-901 []