Invocation of Counsel


The following was taken from a motion in limine.  It was drafted by Paul J. Notarianni.

Evidence of an accused’s intent to obtain counsel is inadmissible.  In Casey v. State, the Maryland Court of Special Appeals held that the issue is “well settled,” that Maryland Rules of Evidence 5-401 makes evidence of an accused’s intent to obtain the advice of counsel as inadmissible.  (Casey v. State, 124 Md. App. 331 at 338 (1999)).  In Waddell v. State, the Court of Special Appeals reversed a first degree murder conviction because the jury received evidence of the appellant’s desire to obtain counsel (Id. citing Waddell v. State, 85 Md. App. 54 (1990)).  In Hunter v. State, the Court of Special Appeals reversed a conviction for negligent homicide by motor vehicle while intoxicated because the jury received evidence that the accused contacted his attorney immediately following the accident. (Id. at 338-39 citing Hunter v. State, 82 Md. App. 679 (1990)).   The Hunter Court found that “to draw an inference of consciousness of guilt from the seeking of such advice… is both illogical and unwarranted; the fact to be inferred [consciousness of guilt] is not made more probable (or less probable) from the mere seeking of legal advice or representation, and so evidence of the predicate fact is simply irrelevant.  On pure evidentiary grounds, it is inadmissible.” (Hunter at 691) (emphasis added).

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