Md. R. Elec. Prac. in Judi. Proce. 21-301

As amended through November 13, 2024

Rule 21-301 - [Effective 1/1/2025] Permissible Remote Electronic Participation in Criminal and Delinquency Proceedings

(a) Proceedings Presumptively Appropriate for Remote Electronic Participation

Subject to the conditions in this Title, any other reasonable conditions the court may impose in a particular proceeding, and resolution of any objection made pursuant to subsection (d)(1) of this Rule, the court, on motion or on its own initiative, may permit or require one, some, or all participants to participate by means of remote electronic participation in all or any part of the following types of criminal and delinquency proceedings:

(1) appearances pursuant to bench warrants;

(2) bail reviews;

(3) expungement hearings;

(4) hearings concerning non-incarcerable traffic citations for which the law permits, but does not require, that the defendant appear;

Cross reference: See Code, Transportation Article, § 16-303(h).

(5) hearings concerning parking citations;

(6) initial appearances for detained defendants;

(7) juvenile detention hearings where the respondent already is detained;

(8) motions hearings not involving the presentation of evidence;

(9) pretrial hearings involving Rule 5-702 where the proposed expert witness is the sole participant to appear remotely;

(10) proceedings in which remote electronic participation is authorized by specific law;

Cross reference: See Code, Criminal Procedure Article, § 11-303.

(11) proceedings involving Rule 4-271(a)(1) or the application of State v. Hicks, 285 Md. 310 (1979) or its progeny, other than a motion to dismiss that involves the presentation of evidence; and

(12) with the knowing and voluntary consent of the defendant pursuant to subsection (b)(2) of this Rule:

(A) discharge-of-counsel hearings;

(B) plea agreements not likely to result in incarceration or where the defendant already is incarcerated;

(C) sentencings; and

(D) three-judge panel sentencing reviews.

(b) Other Criminal and Delinquency Proceedings by Consent

(1) Generally

Subject to the conditions in this Title and any other reasonable conditions the court may impose in a particular case, one, some, or all participants may participate by remote electronic participation in all or any part of any other proceeding in which the presiding judicial officer and all parties consent to remote electronic participation.

(2) Consent by Defendant or Respondent

The court may not accept the consent of a defendant or respondent to waive an in-person proceeding pursuant to subsection (a)(12) or (b)(1) of this Rule unless, after an examination of the defendant or respondent in person or by remote electronic participation on the record in open court conducted by the court, the State's Attorney, the attorney for the defendant or respondent, or any combination thereof, the court determines and announces on the record that the consent is made knowingly and voluntarily. The consent of a defendant or respondent pursuant to this subsection is effective only for the specified proceeding and not for any subsequent proceedings,

(c) If No Presumption or Consent

In a criminal or delinquency proceeding not described in subsections (a)(1) to (a)(11) of this Rule, the court may allow testimony by means of remote electronic participation over the objection of a party only upon a finding that:

(1) there is a necessity for the witness to testify remotely;

(2) the equipment and procedures for such testimony comply with the requirements of Rule 21-104; and

(3) requiring in-person testimony would undermine important public policy considerations in the administration of justice.

Cross reference: See Maryland v. Craig, 497 U.S. 836 (1990); Spinks v. State, 252 Md. App. 604 (2021); and White v. State, 223 Md. App. 353 (2015).

(d) Objection by a Party; Findings

(1) Generally

Upon objection by a party in writing or on the record, the court, before requiring remote electronic participation in any proceeding, shall make findings in writing or on the record that (1) remote electronic participation is not likely to cause substantial prejudice to a party or adversely affect the fairness of the proceeding and (2) no party lacks the ability to participate by remote electronic participation in the proceeding.

(2) Additional Findings

In ruling on an objection to the taking of testimony by remote electronic means in a criminal or delinquency proceeding not described in subsections (a)(1) to (a)(11) of this Rule, the court also shall make findings with respect to the requirements set forth in section (c) of this Rule.

(e) Conditions of Remote Electronic Participation by Witness Unless otherwise ordered by the court, conditions of remote electronic participation in criminal and delinquency proceedings shall include ensuring that a witness:

(1) is alone in a secure room when testifying, and, uponrequest, shares the surroundings to demonstrate compliance;

Committee note: Subsection (e)(1) of this Rule aims to mirror the separation between a witness and an attorney for the witness while the witness is providing testimony. This subsection does not prohibit remote electronic participation in a proceeding by an attorney for a witness. Nothing in this Rule shall preclude accommodations for a child witness or a witness who otherwise needs assistance when testifying.

(2) is not being coached in any way;

(3) is not referring to any documents, notes, or other materials while testifying, unless permitted by the court;

(4) is not exchanging text messages, e-mail, or in any way communicating with any third parties while testifying;

(5) is not recording the proceeding; and

(6) is not using any electronic devices other than a device necessary to facilitate the remote electronic participation.

Md. R. Elec. Prac. in Judi. Proce. 21-301

This Rule is derived in part from recommendations made in the March 9, 2022 Report of the Judicial Council's Joint Subcommittee on Post-COVID Judicial Operations and from former Rules 2-802 and 2-803(2023), and is in part new.

Adopted April 21, 2023, eff. 7/1/2023; amended April 5, 2024, eff. 7/1/2024; amended Oct. 15, 2024, eff. 1/1/2025.

Committee note: Section (e) of this Rule is not intended to limit any other reasonable conditions that the court may impose for remote electronic participation or to preclude the court from authorizing an accommodation under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. and Rule 1-332.

The Rules Committee endorses two caveats stated in the March 9, 2022 Report of the Judicial Council's Joint Subcommittee on Post-COVID Judicial Operations:

(1) Remote proceedings generally are not recommended when the finder of fact needs to assess the credibility of evidence but may be appropriate when the parties consent or the case needs to be heard on an expedited basis and remote proceedings will facilitate the participation of individuals who would have difficulty attending in person; and

(2) Where a judicial officer has discretion to hold or decline to hold a remote proceeding, the judicial officer should consider (i) the preference of the parties, (ii) whether the proceeding will involve contested evidence, (iii) whether the finder of fact will need to assess witness credibility, (iv) the availability of participants who will be affected by the decision, (v) possible coaching or intimidation of witnesses appearing remotely, (vi) access by witnesses to technology and connectivity that would allow participation, (vii) the length and complexity of the proceeding, (viii) the burden on the parties and the court, (ix) whether remote participation will cause substantial prejudice to a party or affect the fairness of the proceeding, (x) a defendant's or juvenile respondent's right of confrontation, and (xi) any other factors the judicial officer considers relevant.