The Prosecutor is required to provide expert notice in a criminal case if it plans to use that expert in their case.
So my Partner and I started trial at 11:33am and the State called its first witness, a certified K9 dog operator. According to their K9 dog operator he had the dog do a search and sniff of the vehicle after he was stopped. The officer claimed he had reasonable articulable suspicion to bring the dog to the automobile to do a search and sniff the vehicle (thats another story) At 11:43 after our first objection and only objection, the State had to dismiss the case against our client for failure to disclose expert notice of the k9 dog operator. What is more interesting is that the State has been pleading and trying these types of cases for the last year without ever disclosing the expert notice. The State needed to recognize that:
Maryland Rule 4-252 requires “d) Disclosure by the State’s Attorney (1) Without Request. Without the necessity of a request, the State’s Attorney shall provide to the defense all material or information in any form, whether or not admissible, that tends to exculpate the defendant or negate or mitigate the defendant’s guilt or punishment as to the offense charged and all material or information in any form, whether or not admissible, that tends to impeach a State’s witness. (2) On Request. On written request of the defense, the State’s Attorney shall provide to the defense:(A) Statements of Defendant and Co-defendant. All written and all oral statements of the defendant and of any co-defendant that relate to the offense charged and all material and information, including documents and recordings, that relate to the acquisition of such statements; (B) Written Statements, Identity, and Telephone Numbers of State’s Witnesses. As to each State’s witness the State’s Attorney intends to call to prove the State’s case in chief or to rebut alibi testimony: (i) the name of the witness; (ii) except as provided under Code, Criminal Procedure Article, § 11-205 or Rule 16-1009(b), the address and, if known to the State’s Attorney, the telephone number of the witness, and (iii) the statements of the witness relating to the offense charged that are in a writing signed or adopted by the witness or are in a police or investigative report; (C) Searches, Seizures, Surveillance, and Pretrial Identification. All relevant material or information regarding:(i) specific searches and seizures, eavesdropping, or electronic surveillance including wiretaps; and (ii) pretrial identification of the defendant by a State’s witness;”
Without Disclosure the Court may Strike that witness testimony
In every case in Maryland and the District of Columbia your lawyer should be filing a demand for discovery. In our case the State prosecutor had little viable options since the Certified K9 operator used his expertise to justify his probable cause to search the vehicle. If the lawyer files the demand for discovery there is little recourse the State will have since your lawyer put them on notice that they want expert notice.
Conclusion
The most interesting part of this case is that the prosecutors in this county have never produced expert notice on this witness to any other defense attorney (to our knowledge). This was a 3rd case with the same facts and they failed to disclose this expert notice in the prior 2 cases but those cases were dismissed for other reasons. The prosecutors were never challenged on these types of cases and so this became routine practice in this county. Remember every aspect of a criminal case should be challenged.
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