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REPORTER’S NOTE
The Pretrial Release Project Advisory Committee in its
report issued October 11, 2001 recommended modification of the
pretrial release system. The Rules Committee has considered the
recommendations that involve rules changes, several of which are
to Rule 4-216.
The Advisory Committee recommended the deletion of current
section (a) because the District Court schedules were used only
when the transition from the former People’s Court to the
District Court took place. The Rules Committee concurs.
The Rules Committee recommends that the Advisory Committee’s
proposal to integrate the rules provisions pertaining to pretrial
release determined either by a commissioner or by a judge should
not be adopted. The Rules Committee believes that section (c)
pertaining to defendants eligible for release only by a judge
should be retained, as should the specific references to the
relevant sections of Code, Criminal Procedure Article, §5-202,
which specifically exclude a commissioner from authorizing
pretrial release. The distinction between section (b) and
section (c) is highlighted by the requirements of subsection
(d)(2) (the judicial officer must state in writing or on the
record the reasons for releasing a defendant to whom section (c)
applies or refusing to release a defendant to whom section (b)
applies).
The Rules Committee also recommends that a requirement
proposed by the Advisory Committee (shown as an alternate version
of subsections (e)(4)(C), (D), and (E)) that a judicial officer
explain in writing when the judicial officer sets a greater
amount of bail than 10% of the full penalty amount not be added
to the Rule.
Current section (b), relettered (a) and given a new tagline,
Arrest Without Warrant, has been rewritten so that the first
sentence states the obligation of the judicial officer to make a
determination as to whether there was probable cause for the
arrest. Based on that determination, the judicial officer either
implements the remaining sections of the Rule if there was
probable cause or releases the defendant if there was no probable
cause. The Rules Committee has considered whether a defendant
arrested without probable cause can be released on personal
recognizance or whether the defendant must be released with no
conditions at all. A review of Gerstein v. Pugh, 420 U.S. 103
(1975), indicates that release on personal recognizance is
constitutional because the defendant’s liberty is not restricted.
The Rules Committee believes that it is appropriate to release a
defendant arrested without probable cause on personal
recognizance so that the defendant remains in the criminal
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