Legal Opinions - Maryland Court of Appeals: September 29, 2008

Daily Record, The (Baltimore), Sep 29, 2008

Here, both the trial transcript and the docket entries rebutted any presumption of regularity. The trial transcript clearly showed that the jury was not sworn before the jurors were dismissed for lunch. When the jury reconvened after lunch, the transcript revealed that the circuit court proceeded directly with the opening statements, without the oath being administered.

According to the trial transcript, which the official reporter of the circuit court certified as being "complete and accurate," the jury was not sworn at any point during the trial. Moreover, the docket entry stating that the jury was not sworn reinforced the accuracy of the transcript.

The record in the instant case offered substantially more than the record in United States v. Pinero, 948 F.2d 698 (11th Cir.1991), which both the State and the Court of Special Appeals relied on to support the assertion that Harris failed to meet his burden of overcoming the presumption of regularity. Specifically, the docket entries here contained an affirmative statement that the jury was not sworn.

The trial transcript also showed two inquiries from defense counsel regarding the unsworn jury, in addition to an inquiry from the courtroom clerk. Additionally, it was noteworthy that the transcript of the hearing on the motion for new trial disclosed that the prosecuting attorney made no argument to rebut defense counsel's contention that the jury had never been sworn. The prosecutor, however, did make rebuttal arguments regarding all of defense counsel's other arguments at the hearing.

The only thing contradicting the transcripts and the docket entries was the statement by the trial judge, based on his memory, that the jury was sworn. Under the State's argument, neither the transcripts nor the docket entries could overcome that fact, though the State cited no authority supporting that position.

To the contrary, any presumption of regularity was overcome here due to the fact that the jury was never administered an oath in violation of Md. Rule 4-312(h), which mandates that the jury "shall be sworn." The rule represents the codification of a long-standing common law requirement.

Article 5 of the Maryland Declaration of Rights, in addition to providing generally that Marylanders are entitled to the common law, distinctly provides that Maryland inhabitants are entitled to trial by jury in accordance with the common law.

The only exception to the right of common law jury, under a 1992 constitutional amendment, is that juries of six or more persons are permitted in civil cases. See, e.g., Bryan v. State Roads Comm'n., 356 Md. 4, 9 (1999).

In addition, Article 21 of the Maryland Declaration of Rights requires, inter alia, that in a criminal prosecution, the accused is entitled to "trial by impartial jury, without whose unanimous consent he ought not to be found guilty." Courts have held that a sworn jury is an element of "impartial" jury, and is necessary for a "legally constituted" jury. People v. Pribble, 72 Mich. App. 219, 224 (1976). "The required oath is not a mere 'formality' which is required only by tradition. The oath represents a solemn promise on the part of each juror to do his duty according to the dictates of the law to see that justice is done." Id.