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Familiar criminal law, procedure bills had mixed results in 2017 session

Del. Kathleen M. Dumais, D-Montgomery. (File photo)

After legislation to allow evidence of past sexual assaultive behavior into criminal trials once again failed in the General Assembly, Del. Kathlen Dumais, D-Montgomery, says plans to ask the Judiciary’s Standing Committee on Rules of Practice and Procedure to consider amending current evidence guidelines. (File photo)

Bills affecting evidence in sexual assault trials, opioid distribution charges, shielding of criminal records and the enforcement powers of the Office of the Comptroller all returned to the General Assembly in 2017 with varying degrees of success.

Legislation to allow evidence of past sexual assaultive behavior into criminal trials failed to make it out of committees despite years of narrowing the bill’s language in an attempt to sway opponents.

House Bill 369 and Senate Bill 316, part of Gov. Larry Hogan’s legislative agenda this year, sought to allow prosecutors to introduce evidence of a defendant’s past behavior that would constitute a sexual offense under Maryland law to rebut a claim of consent or an allegation that a minor victim has lied.

Neither the House Judiciary Committee nor the Senate Judicial Proceedings Committee took action on the cross-filed measures, which have been introduced in some form for more than 25 years.

Del. Kathleen M. Dumais, D-Montgomery, vice chair of the Judiciary Committee, said legislators continue to be uncomfortable with allowing such evidence because it is highly prejudicial. But she plans to ask the Judiciary’s Standing Committee on Rules of Practice and Procedure to consider amending current evidence guidelines.

“I’m hoping that the rules committee will take it up,” she said.

Bills to make it a felony to distribute an opioid that causes a fatal overdose, also part of Hogan’s agenda, were reintroduced after failing in 2015.

This year, the legislation was amended in Judicial Proceedings Committee to become a sentencing enhancement for distributing a mixture of controlled dangerous substances that contains fentanyl. It passed both chambers.

Meanwhile, technological barriers and reticence of prosecutors continued to plague efforts to remove non-convictions from criminal records this session despite receiving support last year.

Del. Erek L. Barron, D-Prince George’s, introduced House Bill 840 this session to allow shielding of non-convictions on the Maryland Judiciary Case Search website. Similar legislation nearly succeeded last session but was stymied by 11th-hour logistics on Sine Die.

The Maryland Judiciary has also repeatedly expressed concerns about the technical capabilities of its systems to comply with the bill, which would allow crimes an individual was not convicted of to be removed from the Case Search website even when one or more charges arising from the same incident resulted in a conviction.

Barron said he believes filing the legislation has sparked a conversation about the barriers non-conviction charges can provide and what can be done to limit their impact on second chances.

Another bill requested by the Hogan administration – which failed to make it through the legislature in a previous session – proposed expanding the investigation and enforcement powers of the Office of the Comptroller. The legislation saw some technical amendments but ultimately passed.

Comptroller Peter Franchot testified at committee hearings that the Taxpayer Protection Act, which adds tax fraud to the list of responsibilities assigned to the agency’s Field Enforcement Division and provides legal authority to issue injunctions against preparers who are under investigation for fraud to protect consumers, was necessary to prosecute fraud, which the Maryland Office of the Attorney General often cannot do with limited resources.

A spokesman for the office said Franchot is “thrilled” at the passage of the bill.

“This bipartisan legislation… will provide the Comptroller’s Office with the tools we desperately need to fight tax fraud and identity theft,” Joseph Shapiro said in an emailed statement.

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