Foreword to the Third Edition
It is with great pleasure and pride that we present this third edition of The Journalist’s Guide to Maryland’s Legal System .
Just as technology has vastly altered the news landscape since our second edition was issued fifteen years ago, there have been significant changes in Maryland law, practice and procedure. We have updated this edition accordingly. “Out” are the references to pagers and payphones and “in” are the many resources now available on the internet, including our favorite, the Maryland Judiciary Case Search. We have also enhanced our coverage of the Maryland Public Information and Open Meetings Acts, which are far more active areas of the law than they have ever been. What hasn’t changed since the last edition is our goal of providing an overview of how our system works and your rights as a journalist under it. This updated Guide exists because of the assistance of the Maryland Judicial Council’s Court Access and Community Relations Committee and our many attorney and journalist contributors- some of whom first authored their sections when our first edition appeared two decades ago. You will find the names of many of those who rendered valuable service to this project at the back of the Guide, but we readily acknowledge that this project also depended on the efforts of many nameless others. These are busy, competitive and stressful times in journalism, with a never-ending news cycle and an appetite for information that never ends. While the Guide provides legal methods for covering the litigation process and the courts, you may find on occasion that what is legal might not necessarily be correct. To help you balance these competing forces, we have included ethical insight and guidance from two recognized authorities: the Society of Professional Journalists (www.spj.org) and the Radio Television Digital News Association (www.rtdna.org). Their Codes of Ethics can be found at the end of the Guide . Whether you are new to reporting on Maryland’s legal system or you are more experienced, we hope this Guide enhances the quality of your work and furthers the understanding of your audience.
Comments, suggestions, corrections and other feedback concerning the Guide are always encouraged. You may send them to the editors:
Robert D. Anbinder, Esquire 2423 Sylvale Road Baltimore, MD 21209 firstname.lastname@example.org
Sue Kopen Katcef Philip Merrill College of Journalism
Knight Hall (417) 7765 Alumni Drive College Park, MD 20742 email@example.com
Bob Anbinder, a former journalist, is former president of the Bar Association of Baltimore City, a member of the Maryland State Bar Association, and a Chief Solicitor in the Litigation Division of the Baltimore City Department of Law. Sue Kopen Katcef, a veteran award-winning journalist, is the Broadcast Bureau Director of the Capital News Service at the University of Maryland’s Philip Merrill College of Journalism. She is on the national board of the Society of Professional Journalists and currently president of the board of the Chesapeake Associated Press Broadcasters Association.
A Message from Mary Ellen Barbera, Chief Judge of the Maryland Court of Appeals
The public relies upon the press for information about court proceedings and services. Accurate reporting best educates members of the public about the work of the Maryland judicial branch. Given the media report on at least one aspect of the legal system every day, it is essential that journalists have the tools they need to provide accurate and thorough coverage. I am therefore pleased to present this, the third edition of the Journalist’s Guide to Maryland’s Legal System . Intended as a resource for journalists who report on Maryland’s courts, the Journalist’s Guide has served reporters for almost two decades and has been well-received by journalists, judges, and court staff, as well as earned praise from court and media professionals in other states. This new edition has been both thoroughly reviewed and updated to reflect changes in the Judiciary and the media. Like the previous editions, it is intended to be a valuable resource to new and experienced journalists alike. The Maryland Judiciary strives to improve public awareness and understanding of the court system and its role in resolving conflicts, providing justice, and upholding the rule of law. In order to achieve its goal of communicating effectively to help assure access to justice, the Maryland Judiciary provides public information to journalists, as well as facilitates educational programs and activities for Marylanders. The chair of the Community Relations Subcommittee, the Hon. Pamila J. Brown, District 10 Administrative Judge, led the workgroup composed of former journalists and representatives from the Maryland State Bar Association. The contributors to this edition of the Journalist’s Guide worked assiduously to examine the Guide and provide corrections and updates for this edition. This project would not have been possible without their dedication and diligence, and, to them, I extend the gratitude of the Judiciary.
A Message from the Hon. Keith R. Truffer, President of the Maryland State Bar Association
The freedom of the press, as outlined in the First Amendment of our Bill of Rights, is a cornerstone of our democracy, ensuring government accountability to the American people. Although media formats continue to evolve at a near-unprecedented pace, all remain grounded in this fundamental liberty. Sound and knowledgeable legal reporting is critical to the accurate reporting of nuanced information to all citizens, irrespective of education. From lone bloggers to the White House Press Corps, it is incumbent upon journalists to have a solid understanding of the basic tenets of our justice system as well as fundamental legal terminology. The Journalist’s Guide to Maryland’s Legal System - a collaborative effort between the Maryland Judiciary, the Society of Professional Journalists, and the Maryland State Bar Association - was created to help you communicate more effectively with your audience and, in doing so, help you to best fulfill your role in fostering an informed public. The Maryland State Bar Association is proud to co-sponsor The Journalist’s Guide to Maryland’s Legal System . Working together, we can help to fulfill the promise imbued in our Constitution.
Covering the Courts Your local courthouse is a treasure trove of public records and public happenings. You can walk right in and observe virtually any proceeding and examine the documents in practically every court file. Unfortunately, there may be some in your courthouse who may not know that reporters, like all other members of the public, are entitled to see all public documents. First, you should know that you don’t always need to go to the courthouse to start covering a case. The Maryland Judiciary’s “Case Search” (casesearch.courts.state.md.us) offers an indispensable resource to help fill in your “five W’s” and plan your coverage by providing enough information about the parties, locations, motions, court orders and future and past proceedings. (Be aware, however, the site itself notes its information “may not always reflect the information contained within the official case file.”) When you go to court, it is, with a few exceptions, including some juvenile proceedings, your right to be present and to take notes during court proceedings, including trials and hearings. In fact, many Circuit Courts reserve rows close to the front for attorneys, families of litigants and the media. Just ask if you are not sure where to sit. You have no obligation to explain to a questioning sheriff’s deputy why you are in a particular courtroom, unless the hearing is restricted or closed. However, the law does not allow you to record the sound or photograph or take video without special permission of a judge. [Maryland law prohibits the use of cameras in courtrooms in all criminal cases; in civil cases, it provides for a judge to permit one pool television camera, and one still camera, at the judge’s discretion. See the chapter on Cameras and Microphones in the Courtroom.] Courtroom sketch artists are also permitted in court. You also have the right to be present during jury selection. Some deputies are not aware of this and, because of courtroom space constraints or the practices of some judges, will occasionally order out all but potential jurors. If you want to cover jury selection, tell the deputy and judge it is your right to be there, and you should be allowed in. If they still refuse to allow your presence, immediately contact the administrative judge of the Circuit Court in which the trial is being held. Court Records Court records include documents, information, exhibits and other things the court maintains in connection with a case. These records are organized into a case file. The files are maintained by a clerk’s office at each courthouse. Court records are generally open to the public but there are several exceptions to this general rule. Additionally, all cases are assigned case numbers so keep handy the numbers of the cases you are following. This section describes how to access court records, as well as some considerations to keep in mind. If you're going to cover a particular court, familiarize yourself with its administrative structure and docketing practices. You should also find out whether the court is in a Maryland Electronic Court (MDEC) jurisdiction (pronounced M-Deck).
MDEC is a Judiciary-wide integrated case management system that will soon be used by all state courts. Court records are filed, processed, and stored electronically. To determine whether the courthouse you are visiting has MDEC, call the clerk’s office before visiting.
Maryland Electronic Courts (MDEC) The Judiciary has been phasing in the Maryland Electronic Court, known as “MDEC”, intended to modernize court administration into a near paperless system. At the time of printing this Guide , 21 of the state’s 24 jurisdictions require electronic filing of case documents, which are then stored and processed by the court which can instantly access them. The system will be fully implemented when Baltimore City courts come onboard in 2021. The official court record will be maintained electronically on the court’s servers.
MDEC provides self-represented litigants and attorneys greater access to courts with the ability to quickly and easily e-file and e-serve court documents 24 hours a day, 7 days a week, from anywhere with an internet connection.
The Judiciary is working with the Maryland Archives to save paper court records in which journalists and researchers in particular may have interest. Unlike the public Case Search database, access to the MDEC database is restricted to official users by Maryland rules, however, journalists will be able to request paper copies of the same court records they currently have access to through the clerks’ offices. Accessing Records in Non-MDEC Courts Become familiar with the public access computers that are available in most if not all courthouses. They tell you what kinds of documents you'll find in the file, give you a quick chronology of the case, and provide the names and addresses of parties and attorneys. If you can't understand some of the abbreviations or codes, the clerk should be able to translate them for you. Please be mindful in this day and age of increased victim and witness intimidation to treat any personal information with great discretion. Be aware that the information in the computer may be incomplete or incorrect. Court files are public-except for the envelopes that are sealed, because they may contain psychiatric, juvenile and related information, medical or financial information or other details a court believes should be off-limits to the public, including reporters. The files can be viewed at the clerk's office, depending on the type of case. If you are interested in a case, you should physically review the file periodically to read new documents, or at the very least check the latest computerized docket entries. Court clerks' offices routinely charge for photocopies of desired material. It is not always inexpensive. As a courtesy, clerks may copy reasonable amounts of material but don't abuse this kindness. You can also contact a party's attorney who might provide a copy of what you need. In
any event, never, ever remove anything from a court file, never remove a file without permission, and never open a sealed document.
Accessing Records in MDEC Courts In MDEC courts all case records can be accessed through public kiosk computers in the clerk’s offices and law libraries. All case records, including documents, are available on the kiosk computers. This means you do not have to ask a clerk to get a file for you. As long as you have the case number you can view all public documents in a case at the click of a mouse. Preliminary research can still be done by reviewing docket entries on Case Search, but to view documents you will still need to visit the courthouse. One additional benefit of MDEC is that cases can be viewed from across the state. That is, if you are using a courthouse kiosk computer in Allegany County you can view documents from cases in Wicomico County. Documents can be printed for a fee. Recordings You generally have options for obtaining a record of what went on in court: ordering a transcript from the court reporter who was present, watching or purchasing a video recording if the courtroom was equipped with fixed cameras, or, if the case was in the District Court, listening to or purchasing a digital audio recording. Take note that the audio and video quality of the court recordings are not broadcast quality.
Sooner or later, you should be able to get access to a record of what happened in court. But, the best and quickest way, of course, is to be there.
Don't just use the court records for court stories. The courthouse is an excellent source of material and people on virtually any subject.
Criminal Files In criminal cases set for the Circuit Court, you’ll typically find a copy of the indictment that lists the formal charges, the victim, the defendant, and names of witnesses expected to testify. In District Court, you’ll find the statement of charges, which is essentially the police narrative of what happened. As the case progresses, you will find bail information, the person’s date of birth and address, subpoenas for witnesses, police documents, evidentiary challenges, etc. You may also see letters from experts hired by the defense, information from the defendant’s relatives, etc. Victim notification forms go into the file, too, and they have addresses and phone numbers. (Discretion is recommended. See the Codes of Ethics at the end of the Guide .) If a case starts in District Court and is then indicted as a felony (and so moved up to Circuit Court), you should find the statement of charges in the Circuit Court file. But, if the case started as a grand jury investigation, you won’t find any account of the facts in the file, and will have to go to the investigators – and to the witnesses listed on the indictment – to piece together what happened. Grand jury proceedings and transcripts are secret in Maryland, though occasionally transcripts later become part of the public record at an attorney’s request.
Civil Files In civil cases, the key document is usually the lawsuit, called “the Complaint” or “Petition.” In essence, the Complaint lays out the heart of the case, although it does so in very legalistic and often antiquated language. Always remember these are allegations, not proven facts. The Complaint will include the names and addresses of the parties in the case: the person or entity bringing the case is “the Plaintiff” or “Petitioner” and the person or entity against whom the case is brought is the “Defendant” or “Respondent.” Many people hire lawyers, so the plaintiff’s attorney’s name and contact information will be in there, too. From the “Answer” to the Complaint or any motions, you will get the name of the defendant’s attorney and, possibly, the theory of the defense. The file may also contain cross-claims, counter-claims or third-party claims in which some of the parties to the original case sue other parties already in the case or others who are not yet in it. Divorce files, located in Circuit Courts, often contain vast amounts of financial and personal information. The file will also contain notices of service that various documents were mailed from one party to the other. It should also include a notice stating the date, time and location of any pending hearings, a court order relating to any hearings already held, and a scheduling order setting forth various deadlines and the date of the settlement conference and trial, if the case doesn’t settle. Motions filed in the case can normally be found in the court file. Often, these are technical in nature but may be important, so they should be reviewed carefully. Be sure to see if the motion has been ruled upon. If so, a copy of the ruling should be in the file. Juvenile Cases The rules on juvenile cases have significantly changed. See the chapter on Juvenile Court. Exhibits Once entered into evidence, exhibits normally become public. However, sensitive information may require the court’s permission before it can be reproduced. These may include autopsy reports, photos, audio of wiretapped conversations, and anything else a jury is allowed to review in making its decision.
Lists of the jurors selected to hear a trial also are only made part of the public file in very limited circumstances.
Sealed Records/Files A final word of caution: be aware of sealed records within the court file. Opening taped envelopes without the judge’s permission can be hazardous to your reputation and career. Practical Tips for Covering the Courts • Watch what you say around jurors and witnesses. It is natural to talk about what just went on in court but during courtroom breaks, reporters, jurors and witnesses sometimes share the same hallway, elevators, restrooms and cafeterias. If jurors or witnesses overhear your conversations, a mistrial could result. • While court is in session you must abide by the judge’s rules. Some will prohibit anyone from leaving the courtroom until and unless there is a recess. Others will allow reporters and the public in and out of the courtroom as needed. Whatever the guidelines – and this includes where reporters/artists sit – you must abide by them. Any significant problems can be directed to the court’s administrative judge. • If permitted to bring them in, don’t let your electronic devices sound in court. This rule is rigorously enforced by the deputies and bailiffs and if you violate the rule you may end up having to pick up your device at the end of the court day. Try to determine the rules of the court before you get there – whether you can use an electronic device to take notes and where you must sit and whether you can even use a device in court hallways. Courts are more anxious about the use of electronic equipment in and around their buildings than they have ever been. See Maryland Rule 16-208 for the latest Maryland court policy on the possession and use of electronic devices in court buildings and courtrooms. • Do not conduct interviews in any part of the courtroom while court is in session. • Never take photographs in the courtroom or even in the courthouse without permission. • The courthouse is a public building and the hallways are public areas. You have the right to request interviews, and participants in a trial have a right to refuse them. • You are permitted to read public documents relating to the case you are covering and may request them from the court clerk during a break in the trial. • Introduce yourself to the attorneys and check with them periodically on the status of any motions and the trial itself (e.g., the number of witnesses they plan to present, length of their presentations, the trial and hearing schedules). • There is no substitute for personal contact with the attorneys and parties prior to, during or even after the trial. • Dates, times and locations of proceedings constantly change and such changes may not be reflected in the online dockets. Confirm the proceedings with the attorneys, the court clerk or the judge before you head to the courthouse. • Courtroom personnel can help you do your job and will appreciate your courtesy. (This rule can’t be stressed enough!)
• Remember that for all the lawyers in the state, the legal profession is still a small one. For better or worse, your name and reputation will get around quickly. • Trying to get in touch with an attorney? If necessary, leave a message that says what you want and what your deadline is. • You will have to pass through security in every courthouse, perhaps at the same time as jurors and others who have no interest in whether you are in a rush. Plan accordingly. • If you don’t understand a term, procedure or proceeding, lawyers, clerks and judges should be willing to explain. You can also refer to the glossary in the back of this Guide or type “legal dictionary” in your search engine and you will find many helpful sites. • An annual “State of the Judiciary” report is issued by the Chief Judge of the Court of Appeals and should have the latest facts, figures and changes involving Maryland courts. You can also call the Maryland Judiciary’s Government Relations and Public Affairs Division for this and much more information. • Need to find a particular lawyer? The Maryland Lawyers’ Manual issued by the Maryland State Bar Association is available online at msba.org and lists its lawyer members according to name, county and practice area. The Maryland Judiciary maintains online a searchable list of attorney addresses and phone numbers, which are available online at www.mdcourts.gov/lawyers/attylist. • Looking for a lawyer-expert? Try the law schools, the Maryland State Bar Association, or the local and specialty/minority bar associations. Their contact information can also be found at www.msba.org. . • Awaiting a Maryland appellate opinion? You can get it immediately upon release at the Maryland judiciary’s website www.mdcourts.gov/opinions/opinions.
Government Relations and Public Affairs Division The Government Relations and Public Affairs (GRPA) Division of the Maryland Judiciary protects and promotes the Judiciary’s interests regarding new laws and initiatives. The Division is the primary liaison between the courts and state and local governments, advocacy groups, the media and the public. The Division focuses on developing programs and activities to increase public awareness of the court’s role in the community. Its many activities include internal and external communications programs that reach all Judiciary personnel and the millions of people who rely on Maryland’s courts, helping to build public trust and confidence in the justice system. Its website includes press releases, appellate opinions, statistical reports and other publications and reports that journalists may find useful. Division staff can provide background information on a variety of issues and can assist journalists in getting access to useful sources of information. Any requests for interviews with court personnel including judges, should go to the GRPA. This office also assists in coordinating coverage of high profile trials throughout the state and is the media’s point of contact for those trials.
GRPA can be reached by phone at 410-260-1488 or through e-mail at firstname.lastname@example.org . The Maryland Judiciary’s website is www.mdcourts.gov .
Knowing Your Limits Even if the content of news reports is fair and accurate, a journalist’s newsgathering methods can land them in legal trouble. Obviously, a journalist, like every citizen, must not violate criminal laws to obtain information, but the line between criminal and non-criminal behavior is not always distinct. Even the total avoidance of criminal behavior in newsgathering might not immunize a journalist from legal challenge. While the law does not set clear boundaries between permissible and impermissible newsgathering practices, it does provide general guidelines to help you steer clear of most legal problems without sacrificing the assertiveness necessary for strong reporting. This brief section examines access to non-governmental places, both public and private, and discusses some problem areas of newsgathering, including impersonation, misrepresentation, and receipt of confidential documents. Access to non-governmental places The extent to which a journalist may permissibly engage in reporting or surveillance largely depends on the location. Generally, restrictions on newsgathering in private homes and private places are stricter than those for public lands or traditionally public areas. One of the first things you should do if you are denied access by government officials or owners of private property is assess your forum. Public Places A journalist is essentially free to gather news on public streets and in public parks, and anything that can be seen (and photographed) or heard on or from a public street is fair game. For example, a Maryland court has found taking a woman’s photograph from the street as she stood in plain view at her bedroom window does not constitute an invasion of privacy. However, the paparazzi-esque pursuit of particular subjects, even on public streets, has landed a few journalists in legal trouble, especially where the newsgathering implicates the privacy of children. The right to engage in newsgathering on public streets has usually been extended to other places where the public is traditionally welcome – such as airport terminals, flea market booths, and professional sporting events – but this right sometimes has not applied to private parties held in otherwise “public” places. Crime and Disaster Scenes The freedom to gather news in public places has extended to crime and disaster scenes in most cases. For example, a journalist may permissibly record an arrest on a public street, or in a courthouse or police station. This freedom may be limited if a law enforcement investigation or other official activity is still in progress.
Where the crime or disaster scene is not a public place, the law is much less clear. A community’s custom or common practice, to the extent it can be determined, can be relevant to the analysis of whether a journalist may incur liability for a particular newsgathering practice. Maryland law is sparse on the subject of “implied consent by custom and usage;” probably the best source of information on the accepted newsgathering practices in the state will be experienced journalists. Like public places, newsgathering activities in private places may be limited if a law enforcement investigation or other official activity is underway, especially if the media’s activities could realistically compromise the safety of the law enforcement officers and the success of their mission. For example, one federal court has held the media has a duty not to interfere with a law enforcement officer’s official activities and may be found liable for breach of that duty, even if the interference comes in the course of newsgathering. With today’s prevalence of cell phones, police are finding themselves on camera more often than they might like when conducting law enforcement activity. In some prominent cases, police have ordered journalists and other citizens to stop filming, or even confiscated video equipment and arrested the operator, although this action may be of dubious legality. Although the authorities have cited electronic surveillance laws to claim their consent is required before filming, this is not accurate. As long as you are not interfering with police activity, jeopardizing an investigation, or endangering others, you are free to observe, photograph or record police officers working on premises open to the public. Sometimes law enforcement officials permit journalists to accompany them on “ride-alongs” as they conduct searches, investigate crimes, or execute arrests. However, the express consent of law enforcement officials to newsgathering is no guarantee a journalist will escape legal trouble. A few courts have found journalists may be held liable for damages when they enter a private home without the consent of the owners, even if they are on a police-approved “ride-along.” In fact, law enforcement may not legally permit the media to enter a private home when executing search warrants, as the U.S. Supreme Court held the additional intrusion of the media violates the Fourth Amendment protection for criminal suspects against unreasonable searches. Private homes Gathering news in a private home without consent of the owner is an extremely risky proposition. Courts have found the media liable for invasion of privacy, trespass, and intentional infliction of emotional distress both where the journalist used surreptitious means and where they gathered news in plain view but without the consent of the homeowner. When the home is a crime or disaster scene, a journalist may have a greater right to gather news, particularly if the custom of the community dictates or a government official has provided consent. But generally, a journalist can face serious liability if the journalist engages in newsgathering in a private home
without the owner’s consent or, even worse, after the owner has expressed a desire for the journalist to leave.
Public institutions Journalists are not entirely free to gather news in public and private mental health facilities, drug treatment centers, schools, etc., without consent. Though the subject of a report will rarely succeed on an invasion of privacy claim, successful trespass claims by the owner or protector of the institution are more common. Restaurants and bars Bars and restaurants are, of course, open to the public, and journalists are traditionally granted the same freedom as ordinary citizens to enter the public areas of such businesses. However, this freedom does not mean journalists may do as they please in the name of newsgathering. If a journalist ignores a patron’s objection to the newsgathering, that journalist may be subjected to liability just as if they had entered a private home. In addition, reporters have not been immune when gathering news in the private parts of otherwise public businesses. In other words, a restaurant kitchen is likely off-limits without the owner’s consent. Other private businesses The public areas of other private businesses are generally considered open to the media as well. Nonetheless, some businesses may object to the use of video cameras on their premises and, unlike public buildings, their owners do have the right to exclude them. As a practical matter, it is often easier to ask for forgiveness than for permission. In most cases, journalists may safely assume they may access areas other private citizens may freely enter. However, those who gather private facts about individuals or recount private activities may nonetheless be subject to invasion of privacy claims. In private parts of private businesses, the media’s liability for newsgathering may vary depending on the means by which the journalist gained access, the methods used to gather news, the sensitivity of the material obtained, or countless other factors. Generally, journalists using either hidden cameras or ambush tactics risk trespass and possibly fraud lawsuits, and if the material obtained and published is highly personal or offensive, the journalist flirts with liability for invasion of privacy. Such tactics should be used only if more traditional newsgathering techniques are unavailable or impractical. Misrepresentation and Impersonation For journalists, whose livelihood depends on gaining access to places they are not welcome and information not meant for their eyes, a little bit of trickery is a useful tool of the trade. Fortunately, the legal system recognizes this and gives journalists some leeway in the name of the First Amendment.
Misrepresentation Misrepresentation is the act of making a false representation for the purpose of deceiving, or causing another to rely on it detrimentally. A misrepresentation can be made in words, by conduct, and even by concealment or failure to disclose a relevant fact. Examples might range from telling a potential interviewee you have already interviewed their friend when you have not, to using a fictitious name to obtain credit information about a subject. Typically, those who feel they have been damaged by a misrepresentation will allege fraud and/or intrusion, one type of invasion of privacy. In practice, though, these misrepresentation claims do not often succeed. To establish a claim for fraud in connection with newsgathering, a plaintiff must typically show the reporter’s behavior was beyond what a person with a reasonable degree of skepticism toward journalistic methods might anticipate, and the reporter had an ulterior purpose beyond uncovering the story. In addition, the plaintiff must establish an injury as a result of reliance on the alleged misrepresentation. Plaintiffs have been similarly unsuccessful in maintaining claims for intrusion, because intrusion usually requires a violation of someone’s physical solitude or seclusion. Essentially, you will likely avoid liability if you steer clear of particularly egregious behavior or a pattern of misrepresentations. Of course, you can prevent lawsuits in general by keeping the white lies to a minimum. Maryland has statutes designed to prevent unauthorized access to medical and certain government records. One statute provides that persons who obtain certain government records by false pretenses, bribery, or theft are guilty of a misdemeanor and subject to a fine. Another states that persons who obtain another’s medical records under false pretenses are guilty of a misdemeanor and subject to a fine and possible civil damages. Impersonation Impersonation is the assumption of a false identity for the purpose of gaining access to sources and information. Though it often involves a grander scheme than misrepresentation, impersonation also rarely leads to liability for the journalist. Courts typically find in favor of journalists on trespass claims that arise out of impersonation because the journalist is not interfering with the ownership or possession of land. Fraud and intrusion claims are difficult to maintain for all of the reasons mentioned in the above section. Once again, impersonation may land you in a lawsuit and should be avoided, but it is unlikely your employer will be forced to pay damages unless the impersonation is especially outrageous (e.g., brandishing a knife while posing as an alcohol rehabilitation patient). Receipt of documents Requesting and receiving documents are daily tasks for journalists and are also an essential part of newsgathering. It probably goes without saying you have a good chance of being sued for invasion of privacy or “conversion” – essentially, stealing another’s property – if you obtain documents unlawfully. Conversely, if a journalist lawfully obtains truthful information about a
matter of public significance, state officials may not punish the publication of the information absent a state interest of the highest order. This rule has been extended to shield journalists from civil liability, such as damages owed to the subject of the publication. But what about the middle ground, for example, when you receive documents lawfully, but they were unlawfully obtained by your source? Does it make a difference whether you knew? You are probably “in the clear” when receiving unlawfully obtained documents even if you know how your source obtained them as long as you did not participate in or authorize their theft. For instance, in one Maryland case, the judge determined a newspaper could not be punished for receiving and publishing confidential university records of student-athletes that had been provided to the reporters gratuitously. Maryland law criminalizes the receipt of stolen property, and a similar statute has been applied in at least one other state to a newspaper’s receipt of a stolen document. However, such an application seems highly unlikely after a decision by the Supreme Court in which the Court held a journalist could not be held liable for broadcasting the contents of an illegally intercepted telephone conversation that was given anonymously to the journalist, even though the journalist had reason to believe the tape was obtained illegally. When you are seeking access to private places or documents, the only way to shield yourself totally from newsgathering liability is to present yourself truthfully and obtain consent from the owner or another person authorized to give consent. If the owner is unavailable, consent from a government official usually will suffice where there is an established custom of press access. At the very least, governmental consent will strengthen a defense against lawsuits. Of course, strict adherence to these rules is not possible in the real world, and would limit your ability to gather news effectively. But to the greatest extent possible, consent is the best course. Seek legal advice If you are planning to carry out a course of newsgathering you sense is less than kosher, get the advice of your publication’s or station’s lawyer. Newsgathering law is varied and fact-specific. Different states have reached different results on very similar issues, and Maryland courts have issued very few decisions to guide you. A good First Amendment lawyer should be able to assess the hazards of your intended course of action and offer particularized suggestions to minimize the risk of liability for fraud, trespass, or invasion of privacy. You may well pay less asking for advice in advance than you might pay in settling a lawsuit. Develop a plan It is hard to deal with access problems in the middle of breaking news, so your news organization should set the groundwork for addressing such situations before they come up. Develop a strong working relationship with police and other officials on your beat. If law enforcement officials in Some Practical Newsgathering Tips Obtain consent
your jurisdiction permit access only to those who hold press passes, obtain one; if your area does not have such a system, keep handy a list of government contacts who may facilitate access when news occurs. Meet with your editors and legal advisers to formulate a general plan in the event you are denied access by police or property owners – whether you should leave, or stay and risk arrest or a lawsuit, and upon what factors your decision will depend.
The Maryland Shield Law The Maryland Shield Law, the nation’s oldest such protection for journalists, states anyone employed by the news media in any newsgathering or disseminating capacity cannot be forced to disclose the source of news or information obtained in the course of their work. This privilege may be asserted whether or not the source has been promised confidentiality. The law protects journalists from waiving its protections, such as by previously reporting or sharing the name of the source or the name of one source but not others. However, Maryland’s Court of Appeals has ruled the Shield Law does not apply to a reporter (or other person otherwise covered) actually witnessing an event or hearing a party make a statement about an issue relevant to a proceeding, if the journalist reports what they saw or heard. In that case, the individual can be compelled to testify because they are also a witness. Also, when reporters are being questioned about their reporting, particularly by someone else’s attorney, they should stop the conversation until they have had the chance to consult their own attorney, lest they end up waiving the privilege. The law’s reach is broad, covering those employed by newspapers, magazines, journals, press associations, news agencies, wire services, radio and television and any other printed, photographic, mechanical or electronic means of reporting news, and an independent contractor acting within the scope of a contract, or certain students who cover news. The Shield Law provides some, but more limited protection for news or information such as notes, video or audio outtakes and unpublished photographs or photographic negatives. A journalist may be compelled to produce these items if the party seeking them proves by clear and convincing evidence: 1) the news or information is relevant to a significant legal issue before a body that has the power to issue a subpoena; 2) the news or information could not, with due diligence, be obtained by any alternative means; and 3) there is an overriding public interest in disclosure. The more limited protection afforded to unpublished information and items may be waived if the journalist discloses unpublished information outside the performance of professional responsibilities, e.g., in social conversation. The privilege applies in any state or local judicial, legislative or administrative forum in Maryland, but does not protect a journalist subpoenaed to testify before a federal court in Maryland. In federal court, the First Amendment to the U.S. Constitution may protect the journalist, although there is no federal Shield Law. Questions often arise on the nature and extent of protection relating to online publications. Although the Shield Law covers newsgathering regardless of the particular medium used to deliver news, the language of the statute does not currently seem to protect self-employed or amateur bloggers. The scope of persons protected under the Shield Law may ultimately be decided by the courts.
The Maryland Shield Law (“News media privilege”) can be found in the Annotated Code of Maryland, Courts and Judicial Proceedings Article, Section 9-112.
Cameras in Maryland Courtrooms
By law, the public may not record or broadcast a criminal matter in a trial courtroom.
In civil cases and at the appellate level, Maryland court rules require requests for permission to use cameras and microphones be made to the Clerk of the Court in writing, at least five days before the proceeding is scheduled to begin. A court may honor a request that gives fewer than five days notice if “good cause” exists; this good cause should be identified in your request. You must specifically identify the case you wish to cover. The court is under no obligation to grant your request and consent of all parties to the case is normally needed. However, consent of a party is implied if the party is the federal, state or local government, any of their agencies or an individual sued or suing in an official governmental capacity. Consent of a party is also not needed in the appeals courts. Once consent has been given, it may not be withdrawn although any party, at any time, may ask the judge to limit or terminate coverage.
Coverage is not permitted if the proceeding is closed to the public by law or by the judge. Audio coverage is prohibited of private conferences, bench conferences and conferences at counsel tables.
Even when allowed, recording or broadcasting must be limited or terminated during the testimony of a crime victim at the request of the victim. Coverage may also be prohibited, terminated or limited at the request of a party, witness, judge or juror where the judge finds a “reasonable probability” of unfairness, danger to a person, undue embarrassment or hindrance of proper law enforcement. A request to prohibit, limit or terminate coverage is presumed valid in cases involving domestic violence, custody of or visitation with a child, minors, police informants, undercover agents, relocated witnesses, trade secrets and so forth. A presiding judge is given broad discretion. State law also calls for pooling arrangements when permission is given for video, still photos and microphones. It is not the responsibility of the court to coordinate pool arrangements. Media wanting to cover such trials must work out among themselves the logistics of this coverage. Where proceedings are continued other than for normal or routine recesses, weekends, or holidays, it is the media’s responsibility to make a brand new request for additional coverage. Generally, cameras and broadcast equipment are permitted in the courthouse for judicial investitures or other ceremonial proceedings, with the advance permission of the court. Many Maryland courtrooms no longer use court reporters, but digitally record all of the proceedings and then use the recording as the official court record. This practice has implications for the media’s access to that record. While the Rules provide that a party to the case or their attorney may obtain a copy of the proceedings, it is forbidden for that party or attorney to make a copy for others (including reporters) without court permission. Others, such as media
representatives, may directly request a copy of the recording from the court, which then has obligations to fulfill before providing it. This may include waiting until all appeals are first concluded.
Since 2006, the Maryland Court of Appeals has made available online all arguments of cases before that Court. The Court indicates the recordings are made available for informational purposes only and are not an official record of the proceeding. Rebroadcast is prohibited without the express permission of the Court which can be obtained through its Government Relations and Public Affairs Division. Hearings before Administrative Law Judges who administer disputes involving rules and regulations are also open to the public including, of course, the media. The ability of the media to record these proceedings is much broader than in the district and Circuit Courts. Audio and video recording equipment and cameras are allowed in the hearing room unless prohibited by law, or unless, in the determination of the judge, their use “may impede the orderly progress of the hearing or otherwise interfere with the hearing process.”
Maryland Rule 16-601 to 16-108 governs cameras and taping in Maryland courtrooms.
Title 28 Subtitle 02 of the Code of Maryland Regulations governs cameras and taping in Administrative Law hearing rooms.
Maryland Code, Criminal Procedure, § 1-201 prohibits the recording or broadcasting of criminal proceedings.
The Maryland State Court System and its Agencies
Overview As Robert Bell, former Chief Judge of the Court of Appeals once said, “there is no justice in Maryland”: a subtle reminder there is no member of the state’s judiciary with the title “Justice.” They are all called “judge.” Maryland has a four-tiered court system of trial courts and appellate courts. The trial courts are the District Court of Maryland and the Circuit Courts for each county and Baltimore City. The appellate courts are the Court of Special Appeals, in which a panel of three judges reviews each case, and the Court of Appeals, the highest court in the state. District Court Each county and the city of Baltimore has at least one District Court location. The District Court is a unified state court with a chief judge and chief clerk. Generally speaking, the District Court has jurisdiction over all misdemeanors and the Circuit Court has jurisdiction over all felonies, although some felonies and some misdemeanors are within the concurrent jurisdiction of either the District Court or Circuit Court. For example, misdemeanors for which the potential sentence can be up to three years of confinement or a fine of $2,500 or more can be heard by either the district or Circuit Court. In the civil area, the District Court has exclusive jurisdiction over landlord-tenant cases. It also has jurisdiction over small claims cases which involve amounts of $5,000 and below. It shares jurisdiction with Circuit Court for domestic violence and civil cases that involve claims between $5,000 and up to $30,000. Judges generally wear black robes except for the judges of the Court of Appeals, who wear scarlet robes.
A District Court case is tried before a judge only, and an entire trial rarely goes more than two hours.
Because there are no jury trials in District Court, a person must request one in a timely fashion if they are entitled to a jury trial for a criminal or civil case. If a party requests a jury trial, the case is moved to Circuit Court.
Court Commissioners issue arrest warrants and conduct bail reviews around-the-clock and may issue peace and protective orders. They are part of the District Court as well.
Orphans’ Court This specialized court has jurisdiction over probate and the administration of estates of the deceased. The Register of Wills, an elected official, is the clerk of the Orphans’ Court. Circuit Court Each county and the City of Baltimore has a Circuit Court. These courts have broad jurisdiction. They handle larger civil cases and cases in which a party is entitled to (and has requested) a jury trial, divorces, and more serious felony criminal cases. Circuit Courts also hear appeals from District Court, from most Orphans’ Courts, and from certain administrative agencies. Most Circuit Court civil cases are settled before trial, and most felony criminal cases are resolved by a defendant pleading guilty to one or more charges as part of an agreement (a “plea bargain”). Not all Circuit Court trials involve juries – some civil and criminal cases are heard by a judge alone (“bench trials”). Family Division (Circuit Court) Family law cases make up about half of all civil lawsuits filed in Maryland each year. The five largest jurisdictions in the state – Anne Arundel, Baltimore, Montgomery and Prince George’s counties as well as Baltimore City – maintain a separate Family Division within their Circuit Court. Each Circuit Court regardless of size has a family services coordinator who arranges and provides a range of services in family law cases. Family divisions hear juvenile cases and cases of divorce, child custody, alimony, termination of parental rights, involuntary admission to state psychiatric hospitals, and requests to withhold or withdraw life-sustaining medical procedures. In some jurisdictions, magistrate judges will routinely hear juvenile, family and equity matters, and in other jurisdictions these cases are handled in the Circuit Court. The best practice would be to check with the clerk of the respective court. Magistrates are authorized by Maryland law to hear certain cases, as assigned by a Circuit Court. Most typical are family law, child in need of assistance ( CINA cases) and juvenile delinquency cases. Magistrate determinations are made as recommendations for adoption by a judge. If a party disagrees with the Magistrate’s recommendations, written exceptions are filed for consideration by a judge, after opportunity for a hearing. The judge may issue a ruling consistent with their independent consideration of the Magistrate’s recommendations.
Juvenile Court Juvenile cases involve children under the age of 18 years, and when Circuit Courts hear cases involving juveniles, they sit as a Juvenile Court. Juvenile Court matters include some
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