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Editor: Colin Miller
Univ. of South Carolina School of Law

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Thursday, August 6, 2009

Stop Snitchin', The Aftermath: Maryland Case Might Be First To Apply State's Forfeiture By Wrongdoing Rule

Some readers might remember the infamous Stop Snitchin' DVD that surfaced on Baltimore's streets in 2004, featuring homegrown NBA player Carmelo Anthony and made to convince criminal informants to stop "snitching," or informing, to law enforcement, lest they face injury or death. What many likely do not know is that the DVD as well as numerous witnesses being murdered in Baltimore led Maryland to adopt Maryland Rule of Evience 5-804(b)(5), a counterpart to the federal forfeiture by wrongdoing rule. And now, the State may finally have an opportunity to use its new forfeiture rule.

In May 2007, Bobby Ennels was arrested and charged with first degree murder in connection with the 2006 death of Raymond Brown, also known as Scottie Beats. Ennels eventually struck a plea deal with the prosecution in exchange for his testimony against Jamaal Alexis, whom the State believed fired the fatal shot that felled Brown. Only weeks before Ennels was expected to testfy against Jamaal, however, he was killed, with the prime suspect being Jamaal's brother, Rashaad Alexis. If the State has its way, the case will be the first in the state to employ Maryland Rule of Evience 5-804(b)(5), allowing the jury to hear allegations made to the police by Ennels against Jamaal.

Under the rule, hearsay by a prospective witness is admissible against a party if the party procured the witness' unavailability through his wrongdoing, and the prosecution's theory is that Jamaal asked Rashaad to kill Ennels. Defense counsel has countered that his client is not guilty in Brown's murder and that he did not ask his brother to kill Ennels. It is important to note that if the judge follows the lead of federal judges applying the federal forfeiture by wrongdoing rule, the judge would merely need to be satisfied by a preponderance of the evidence that Jamaal procured the unavailability of Ennels through his wrongdoing to allow for the admission of Ennels' hearsay statements. See, e.g., United States v. Stewart, 485 F.3d 666, 670 (2nd Cir. 2007). The trial judge is expected to rule on the evidentiary issue this week.

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/08/md-forfeiturehttpwwwgazettenetstories08042009prinnew174112_32546shtml.html

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