Tuesday, June 8, 2010

The Sounds Of Silence

The legal concept of silence has received a fair amount of attention in recent days. The Supreme Court held last week that silence may constitute a waiver of Miranda rights. We reported a case from the Nevada Supreme Court yesterday that found that a prosecutor's silence in responding to an argument on appeal conceded the point to the defense.

Today the Maryland Court of Appeals held that the silence of the trial judge in rendering a verdict on several counts in a vehicular homicide bench trial required a remand to the Court of Special Appeals to determine whether the charged (but unresolved by verdict) offenses were lesser included offenses of counts for which the defendant had been convicted. If the charged offenses are not lesser included offenses, the docket entries will be corrected. The Court of Special Appeals had held that the silence on the unconvicted counts amounted to an acquittal.

Judge Harrell concurred and dissented:

As is known to most persons who have been engaged to be married and by many professional athletes and rock-and-roll stars with pierced ears, diamonda are graded, among other things, for clarity; that is, the relative absence or appearance of internal "inclusions" and external "blemishes." Under the graiding system of the Gemological Institute of America (GIA), a "flawless" catagory diamond (no flaws visible under 10X magnification) receives a grade of "FL." The next highest catagory, "internally flawless" (meaning no inclusions and only small blemishes visible under the same magnification), receives the grade "IF." If the record of the present case were a diamond, it would be one of "IF" clarity regarding the intention of the trial judge in rendering his verdict.

The judge, joined by two colleagues, would find that the trial court had rendered verdicts and that the remand was a windfall to the defendant. (Mike Frisch)

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