Md. Crim. Causes. 4-216

As amended through April 5, 2024

Rule 4-216 - Pretrial Release-Authority of Judicial Officer; Procedure

(a) Arrest Without Warrant. If a defendant was arrested without a warrant, upon the completion of the requirements of Rules 4-213(a) and 4-213.1, the judicial officer shall determine whether there was probable cause for each charge and for the arrest and, as to each determination, make a written record. If there was probable cause for at least one charge and the arrest, the judicial officer shall implement the remaining sections of this Rule. If there was no probable cause for any of the charges or for the arrest, the judicial officer shall release the defendant on personal recognizance, with no other conditions of release, and the remaining sections of this Rule are inapplicable.

Cross reference: See Rule 4-213(a)(5).

(b) Communications With Judicial Officer. Except as permitted by Rule 18-202.9(a)(1) and (2) of the Maryland Code of Conduct for Judicial Appointees or Rule 18-102.9(a)(1) and (2) of the Maryland Code of Judicial Conduct, all communications with a judicial officer regarding any matter required to be considered by the judicial officer under this Rule shall be (1) in writing, with a copy provided, if feasible, but at least shown or communicated by the judicial officer to each party who participates in the proceeding before the judicial officer, and made part of the record, or (2) made openly at the proceeding before the judicial officer. Each party who participates in the proceeding shall be given an opportunity to respond to the communication.

Cross reference: See also Rule 19-303.5(a) of the Maryland Attorneys' Rules of Professional Conduct.

(c) Defendants Eligible for Release by Commissioner or Judge. In accordance with this Rule, Rule 4-216.1, and Code, Criminal Procedure Article, §§ 5-101 and 5-201 and except as otherwise provided in section (d) of this Rule, by Code, Criminal Procedure Article, §§ 5-201 and 5-202, or by other applicable law, a defendant is entitled to be considered for release before verdict by a judicial officer.

Committee note: An individual arrested on a warrant issued pursuant to the Interstate Compact for Adult Offender Supervision is ineligible for release by a judge or commissioner. The individual is required to be detained in accordance with Rules promulgated by the Interstate Commission for Adult Offender Supervision (ICAOS). See 4 U.S.C. 112; Code, Correctional Services Article, Title 6, Chapter 200; and ICAOS Rules (available on the Internet).

(d) Defendants Eligible for Release Only by a Judge.

(1) A defendant charged with an offense for which the maximum penalty is life imprisonment or with an offense listed under Code, Criminal Procedure Article, § 5-202(a), (b), (c), (d), (e), (f) or (g) may not be released by a District Court Commissioner, but may be released before verdict or pending a new trial, if a new trial has been ordered, only by a judge.

(2) An individual arrested in this State who is subject to extradition under the Uniform Criminal Extradition Act (Code, Criminal Procedure Article, Title 9) may not be released by a Commissioner, but may be released only by a judge in accordance with that Act.

(e) Duties of Judicial Officer. In deciding upon release and any conditions of release, the judicial officer shall apply the standards and comply with the requirements set forth in Rule 4-216.1.

(f) Temporary Commitment Order. If an initial appearance before a commissioner cannot proceed or be completed as scheduled, the commissioner may enter a temporary commitment order, but in that event the defendant shall be presented at the earliest opportunity to the next available judicial officer for an initial appearance. If the judicial officer is a judge, there shall be no review of the judge's order pursuant to Rule 4-216.2.

Committee note: Section (f) of this Rule is intended to apply to a narrow set of compelling circumstances in which it would be inappropriate or impracticable to proceed with or complete the initial appearance as scheduled, such as the illness, intoxication, or disability of the defendant or the inability of an attorney for the defendant to appear within a reasonable time.

(g) Record. The judicial officer shall make a brief written record of the proceeding, including:

(1) whether notice of the time and place of the proceeding was given to the State's Attorney and the Public Defender or any other defense attorney and, if so, the time and method of notification;

(2) if a State's Attorney has entered an appearance, the name of the State's Attorney and whether the State's Attorney was physically present at the proceeding or appeared remotely;

(3) if an attorney has entered an appearance for the defendant, the name of the attorney and whether the attorney was physically present at the proceeding or appeared remotely;

(4) if the defendant waived an attorney, a confirmation that the advice required by Rule 4-213.1(e) was given and the defendant's waiver was knowing and voluntary;

(5) confirmation that the judicial officer complied with each applicable requirement specified in section (g) of this Rule and in Rule 4-213(a);

(6) whether the defendant was ordered held without bail;

(7) whether the defendant was released on personal recognizance; and

(8) if the defendant was ordered released on conditions pursuant to Rule 4-216.1 the conditions of the release.

(h) Title 5 Not Applicable. Title 5 of these rules does not apply to proceedings conducted under this Rule.

Md. Crim. Causes. 4-216

This Rule is derived in part from former Rule 721, M.D.R. 723 b 4, and is in part new.

Adopted April 6, 1984, eff. 7/1/1984. Amended Nov. 1, 1991, eff. 1/1/1992; 12/15/1993, eff. 7/1/1994; 6/7/1994, eff. 10/1/1994; 6/8/1998, eff. 10/1/1998; 1/20/1999, eff. 7/1/1999; 10/5/1999; 1/8/2002, eff. 2/1/2002; 11/12/2003, eff. 1/1/2004; 9/10/2009, eff. 10/1/2009; 3/9/2010, eff. 7/1/2010; 10/20/2010, eff. 1/1/2011; 6/11/2012, eff. 6/12/2012; 11/1/2012, eff. 1/1/2014; 5/27/2014, eff. 7/1/2014; 3/2/2015, eff. 7/1/2015; 6/6/2016, eff. 7/1/2016; 2/16/2017, eff. 7/1/2017.

HISTORICAL NOTES

1999 Orders

The October 5, 1999, order, in section (d), subsec. (e)(3)(C), and subsec. (f)(5)(C), inserted references to Art. 27, § 6161/2 (n); inserted section (k), allowing a court to issue a bench warrant for the arrest of a defendant who violates a condition of pretrial release; and redesignated former section (k) as section (l).

2002 Orders

The January 8, 2002, order, in section (c), inserted "or by law" and deleted "if the defendant is charged with an offense listed under Code, Article 27, § 6161/2 (k)," following "and (2)"; amended the cross reference following section (c); in section (d), substituted "Criminal Procedure Article, § 5-202(a), (b), (c), (d), or (e)" for "Article 27, § 6161/2 (c), (i), (j), (l), or (n)" and "Criminal Procedure Article, § 5-202(b), (c), (d), or (e)" for "Article 27, § 6161/2 (c), (j), (l), or (n)"; rewrote subsec. (e)(3)(B), which previously read: "Protect the safety of the alleged victim if the defendant is charged with an offense listed under Code, Article 27, § 6161/2 (k), and"; in subsec. (e)(3)(C), substituted "Criminal Procedure Article, § 5-202(b), (c), (d), or (e)" for "Article 27, § 6161/2 (c), (j), (l), or (n)"; rewrote subsec. (f)(5)(B), which previously read: "protect the safety of the alleged victim if the charge against the defendant is an offense listed under Code, Article 27, § 6161/2 (k), and"; in subsec. (f)(5)(C), substituted "Criminal Procedure Article, § 5-202(b), (c), (d), or (e)" for "Article 27, § 6161/2 (c), (j), (l), or (n)"; amended the cross reference following subsec. (f)(6); redesignated existing section (g) as subsec. (g)(1); and added subsec. (g)(2).

2003 Orders

The November 12, 2003, order rewrote this rule, which previously read:

"(a) Interim Bail. Pending an initial appearance by the defendant before a judicial officer pursuant to Rule 4-213(a), the defendant may be released upon execution of a bond in an amount and subject to conditions specified in a schedule that may be adopted by the Chief Judge of the District Court for certain offenses. The Chief Judge may authorize designated court personnel or peace officers to release a defendant by reference to the schedule.

"(b) Probable Cause Determination. A defendant arrested without a warrant shall be released on personal recognizance under terms that do not significantly restrain the defendant's liberty unless the judicial officer determines that there is probable cause to believe that the defendant committed an offense.

"(c) Defendants Eligible for Release by Commissioner or Judge. Except as otherwise provided in section (d) of this Rule or by law, a defendant is entitled to be released before verdict in conformity with this Rule on personal recognizance or with one or more conditions imposed unless the judicial officer determines that no condition of release will reasonably assure (1) the appearance of the defendant as required and (2) the safety of the alleged victim.

"Cross reference: See Code, Criminal Procedure Article, § 5-101(c) concerning defendants who may not be released on personal recognizance.

"(d) Defendants Eligible for Release Only by a Judge. A defendant charged with an offense for which the maximum penalty is death or life imprisonment or with an offense listed under Code, Criminal Procedure Article, § 5-202(a), (b), (c), (d), or (e) may not be released by a District Court Commissioner, but may be released before verdict or pending a new trial, if a new trial has been ordered, if a judge determines that all requirements imposed by law have been satisfied and that one or more conditions of release will reasonably assure (1) the appearance of the defendant as required and (2) if the defendant is charged with an offense listed under Code, Criminal Procedure Article, § 5-202(b), (c), (d), or (e), that the defendant will not pose a danger to another person or the community while released.

"(e) Duties of Judicial Officer.

"(1) Consideration of Factors. In determining whether a defendant should be released and the conditions of release, the judicial officer, on the basis of information available or developed in a pretrial release inquiry, may take into account:

"(A) The nature and circumstances of the offense charged, the nature of the evidence against the defendant, and the potential sentence upon conviction, insofar as these factors are relevant to the risk of nonappearance;

"(B) The defendant's prior record of appearance at court proceedings or flight to avoid prosecution or failure to appear at court proceedings;

"(C) The defendant's family ties, employment status and history, financial resources, reputation, character and mental condition, length of residence in the community, and length of residence in this State;

"(D) The recommendation of an agency which conducts pretrial release investigations;

"(E) The recommendation of the State's Attorney;

"(F) Information presented by defendant's counsel;

"(G) The danger of the defendant to another person or to the community;

"(H) The danger of the defendant to himself or herself; and

"(I) Any other factor bearing on the risk of a wilful failure to appear, including prior adjudications of delinquency that occurred within three years of the date the defendant is charged as an adult and prior convictions.

"(2) Statement of Reasons--When Required. Upon determining to release a defendant to whom section (d) of this Rule applies or to refuse to release a defendant to whom section (c) of this Rule applies, the judicial officer shall state the reasons in writing or on the record.

"(3) Imposition of Conditions of Release. If the judicial officer determines that the defendant should be released other than on personal recognizance without any additional conditions imposed, the judicial officer shall impose on the defendant the least onerous condition or combination of conditions of release set out in section (f) of this Rule that will reasonably:

"(A) Assure the appearance of the defendant as required,

"(B) Protect the safety of the alleged victim by ordering the defendant to have no contact with the alleged victim or the alleged victim's premises or place of employment or by other appropriate order, and

"(C) Assure that the defendant will not pose a danger to another person or to the community if the charge against the defendant is an offense listed under Code, Criminal Procedure Article, § 5-202(b), (c), (d), or (e).

"(4) Advice of Conditions and Consequences of Violation. The judicial officer shall advise the defendant in writing or on the record of the conditions of release imposed and of the consequences of a violation of any condition.

"(f) Conditions of Release. The conditions of release imposed by a judicial officer under this Rule may include:

"(1) Committing the defendant to the custody of a designated person or organization that agrees to supervise the defendant and assist in assuring the defendant's appearance in court;

"(2) Placing the defendant under the supervision of a probation officer or other appropriate public official;

"(3) Subjecting the defendant to reasonable restrictions with respect to travel, association, or residence during the period of release;

"(4) Requiring the defendant to post a bail bond complying with Rule 4-217 in an amount and on conditions specified by the judicial officer including any of the following:

"(A) without collateral security,

"(B) with collateral security of the kind specified in Rule 4-217(e)(1)(A) equal in value to the greater of $25.00 or 10% of the full penalty amount, or a larger percentage as may be fixed by the judicial officer,

"(C) with collateral security of the kind specified in Rule 4-217(e)(1) equal in value to the full penalty amount,

"(D) with the obligation of a corporation that is an insurer or other surety in the full penalty amount;

"(5) Subjecting the defendant to any other condition reasonably necessary to:

"(A) assure the appearance of the defendant as required,

"(B) protect the safety of the alleged victim, and

"(C) assure that the defendant will not pose a danger to another person or to the community if the charge against the defendant is an offense listed under Code, Criminal Procedure Article, § 5-202(b), (c), (d), or (e);

"(6) Imposing upon the defendant, for good cause shown, one or more of the conditions authorized under Code, Article 27, § 763 reasonably necessary to stop or prevent the intimidation of a victim or witness or a violation of Code, Article 27, § 26, § 761, or § 762.

"Cross reference: See Code, Criminal Procedure Article, § 5-201(b), and Code, Business Occupations and Professions Article, Title 20, concerning private home detention monitoring as a condition of release.

"(g) Review of Commissioner's Pretrial Release Order.

"(1) Generally. A defendant who is denied pretrial release by a commissioner or who for any reason remains in custody for 24 hours after a commissioner has determined conditions of release pursuant to this Rule shall be presented immediately to the District Court if the court is then in session, or if not, at the next session of the court. The District Court shall review the commissioner's pretrial release determination and take appropriate action. If the defendant will remain in custody after the review, the District Court shall set forth in writing or on the record the reasons for the continued detention.

"Cross reference: See Rule 4-231(d) concerning the presence of a defendant by video conferencing.

"(2) Juvenile Defendant. If the defendant is a child whose case is eligible for transfer to the juvenile court pursuant to Code, Criminal Procedure Article, § 4-202(b), the District Court, regardless of whether it has jurisdiction over the offense charged, may order that a study be made of the child, the child's family, or other appropriate matters. The court also may order that the child be held in a secure juvenile facility.

"(h) Continuance of Previous Conditions. When conditions of pretrial release have been previously imposed in the District Court, the conditions continue in the circuit court unless amended or revoked pursuant to section (i) of this Rule.

"(i) Amendment of Pretrial Release Order. After a charging document has been filed, the court, on motion of any party or on its own initiative and after notice and opportunity for hearing, may revoke an order of pretrial release or amend it to impose additional or different conditions of release. If its decision results in the detention of the defendant, the court shall state the reasons for its action in writing or on the record.

"(j) Supervision of Detention Pending Trial. In order to eliminate unnecessary detention, the court shall exercise supervision over the detention of defendants pending trial. It shall require from the sheriff, warden, or other custodial officer a weekly report listing each defendant within its jurisdiction who has been held in custody in excess of seven days pending preliminary hearing, trial, sentencing, or appeal. The report shall give the reason for the detention of each defendant.

"(k) Violation of Condition of Release. A court may issue a bench warrant for the arrest of a defendant charged with a criminal offense who violates a condition of pretrial release. After the defendant is presented before a court, the court may (1) revoke the defendant's pretrial release or (2) continue the defendant's pretrial release with or without conditions.

"(l) Title 5 Not Applicable. Title 5 of these rules does not apply to proceedings conducted under this Rule.

"Source: This Rule is derived in part from former Rule 721, M.D.R. 723 b 4, and is in part new."

2009 Orders

The September 10, 2009, order, updated the cross reference following subsection (e)(6).

2010 Orders

The March 9, 2010, order, in subsec. (c), corrected a cross-reference.

The October 20, 2010, order, in subsec. (c), corrected a cross-reference.

2012 Orders

The June 11, 2012, order amended section (a) to clarify a finding of probable cause; to require a written record of certain determinations by a judicial officer; to add section (b) regarding communications with a judicial officer; to add section (e) pertaining to a defendant's right to counsel at an initial appearance before a judge and a defendant's waiver of that right; to delete sections (f), (g), (h), (i); and made stylistic changes.

The November 1, 2012, order corrected an internal reference in (f)(3).

2014 Orders

The May 27, 2014, order added "upon the completion of the requirements of Rules 4-213(a) and 4-203.1" to (a); removed "death" from the first sentence of (d); renumbered (f) through (i); changed the word "counsel" to "attorney throughout the rule; corrected internal references; deleted (e) which previously read; and rewrote (g) through (i) which previously read:

"(e) Initial Appearance Before a Judge.

"(1) Applicability. This section applies to an initial appearance before a judge. It does not apply to an initial appearance before a District Court commissioner.

"(2) Duty of Public Defender. Unless another attorney has entered an appearance or the defendant has waived the right to counsel for purposes of an initial appearance before a judge in accordance with this section, the Public Defender shall provide representation to an eligible defendant at the initial appearance.

"(3) Waiver of Counsel for Initial Appearance.

"(A) Unless an attorney has entered an appearance, the court shall advise the defendant that:

"(i) the defendant has the right to counsel at this proceeding;

"(ii) an attorney can be helpful in advocating that the defendant should be released on recognizance or on bail with minimal conditions and restrictions; and

"(iii) if the defendant is eligible, the Public Defender will represent the defendant at this proceeding.

"(B) If the defendant indicates a desire to waive counsel and the court finds that the defendant knowingly and voluntarily waives the right to counsel for purposes of the initial appearance, the court shall announce on the record that finding and proceed pursuant to this Rule.

"(C) Any waiver found under this section applies only to the initial appearance.

"(4) Waiver of Counsel for Future Proceedings. For proceedings after the initial appearance, waiver of counsel is governed by Rule 4-215.

"Cross reference: For the requirement that the court also advise the defendant of the right to counsel generally, see Rule 4-215(a)."

"(g) Conditions of Release. The conditions of release imposed by a judicial officer under this Rule may include:

"(1) committing the defendant to the custody of a designated person or organization that agrees to supervise the defendant and assist in ensuring the defendant's appearance in court;

"(2) placing the defendant under the supervision of a probation officer or other appropriate public official;

"(3) subjecting the defendant to reasonable restrictions with respect to travel, association, or residence during the period of release;

"(4) requiring the defendant to post a bail bond complying with Rule 4-217 in an amount and on conditions specified by the judicial officer, including any of the following:

"(A) without collateral security;

"(B) with collateral security of the kind specified in Rule 4-217(e)(1)(A) equal in value to the greater of $100.00 or 10% of the full penalty amount, and if the judicial officer sets bail at $2500 or less, the judicial officer shall advise the defendant that the defendant may post a bail bond secured by either a corporate surety or a cash deposit of 10% of the full penalty amount;

"(C) with collateral security of the kind specified in Rule 4-217(e)(1)(A) equal in value to a percentage greater than 10% but less than the full penalty amount;

"(D) with collateral security of the kind specified in Rule 4-217(e)(1) equal in value to the full penalty amount; or

"(E) with the obligation of a corporation that is an insurer or other surety in the full penalty amount;

"(5) subjecting the defendant to any other condition reasonably necessary to:

"(A) ensure the appearance of the defendant as required;

"(B) protect the safety of the alleged victim, and

"(C) ensure that the defendant will not pose a danger to another person or to the community; and

"(6) imposing upon the defendant, for good cause shown, one or more of the conditions authorized under Code, Criminal Law Article, § 9-304 reasonably necessary to stop or prevent the intimidation of a victim or witness or a violation of Code, Criminal Law Article, § 9-302, 9-303, or 9-305."

"Cross reference: See Code, Criminal Procedure Article, § 5-201(a)(2) concerning protections for victims as a condition of release. See Code, Criminal Procedure Article, § 5-201(b), and Code, Business Occupations and Professions Article, Title 20, concerning private home detention monitoring as a condition of release.

"(h) Title 5 Not Applicable. Title 5 of these rules does not apply to proceedings conducted under this Rule."

2015 Orders

The March 2, 2015, order amended (f)(4)(B) to change the amount of collateral security from $100.00 to $25.00.

2016 Orders

The June 6, 2016, order revised internal references in the Rule.

2017 Orders

The February 16, 2017, order, deleted sections (e) and (f) and portions of (c) and (d), transferred those provisions to new Rule 4-216.1, added a Committee note, and made certain conforming and clarifying amendments.