BASHUNN PHILLIPS v. STATE OF MARYLAND
Court of Special Appeals of Maryland, Leahy, June 28, 2017,
In-Banc Review – A Circuit Court in-banc review, as set out in the Maryland Constitution, is equivalent to an appeal and can only be undertaken when a regular appeal could be undertaken

I felt like a crazy person for not realizing that this was a thing… until I realized why it wasn’t really a thing.

The Maryland Constitutional provision (ratified in 1978; amended 2006) states:

Where any trial is conducted by less than three Circuit Judges, upon the decision or determination of any point, or question, by the Court, it shall be competent to the party, against whom the ruling or decision is made, upon motion, to have the point, or question reserved for the consideration of three Judges of the Circuit, who shall constitute a court in banc for such purpose; and the motion for such reservation shall be entered of record, during the sitting at which such decision may be made; and the procedure for appeals to the Circuit Court in banc shall be as provided by the Maryland Rules. The decision of the said Court in banc shall be the effective decision in the premises, and conclusive, as against the party at whose motion said points, or questions were reserved; but such decision in banc shall not preclude the right of Appeal by an adverse party who did not seek in banc review, in those cases, civil or criminal, in which appeal to the Court of Special Appeals may be allowed by Law. The right of having questions reserved shall not, however, apply to trials of Appeals from judgments of the District Court, nor to criminal cases below the grade of felony, except when the punishment is confinement in the Penitentiary; and this Section shall be subject to such provisions as may hereafter be made by Law.

So, to summarize:
– A “decision or determination of any point, or question” made in trial can be reserved for in-banc consideration
– The motion must be entered on the record “during the sitting at which such decision may be made”
– The procedure “for appeals to the Circuit Court in banc” are to be provided by the Maryland Rules, but in-banc is a 3-judge circuit panel
– You can’t do this on de-novo appeal from district court or in misdemeanors unless “the punishment is confinement in the Penitentiary”
– There is a right of appeal to CoSA by the party who did not seek in banc review where “allowed by Law.”

Maryland Rules:
This has been incorporated into criminal trials through Rule 4-352, which refers you in turn to the civil-trial version found at Rule 2-551 with some substitutions.

The substitutions are a bit off, as the rule states:

In banc review of a circuit court’s judgment or determination is governed by the provisions of Rule 2-551, except that the right of review does not apply to criminal actions exempted under the Maryland Constitution. In applying Rule 2-551, references to Rules 2-517, 2-520, and 2-533 shall be construed as references to Rules 4-322, 4-325, and 4-331(a) respectively.

But Rule 2-517 (Civil- Method of Making Objections) does not correspond to 4-322 (Criminal- Exhibits, Computer–Generated Evidence, and Recordings). Instead, that should refer to Rule 4-323 (Criminal- Method of Making Objections).

With the correct substitutions made, the rule thus states:

When review by a court in banc is permitted by the Maryland Constitution, a party may have a judgment or determination of any point or question reviewed by a court in banc by filing a notice for in banc review. Issues are reserved for in banc review by making an objection in the manner set forth in Rules 2-5174-323 and 2-5204-325. Upon the filing of the notice, the Circuit Administrative Judge shall designate three judges of the circuit, other than the judge who tried the action, to sit in banc.

All of that being said, there’s not a lot here. If this rule worked the way that the State argued… the judicial system would grind to a halt (even more so!).

Every ruling on every objection in every felony trial could become the subject of an in-banc circuit-court review… which… would not help.

And so, yeah, it sucks that AA county apparently believes that the Frye-Reed standard has an additional element that science be proven to apply to a criminal case before it can be used in a criminal case (contradicting the general notion that science applies without caring why it’s being used). But the state would clearly lose if the State won here.

Appeal- In general, a party to a criminal case cannot appeal until the case is finished
Appeal- Due to double-jeopardy, this normally means that the State cannot appeal the result of a criminal case.
Appeal- However, as long as jeopardy has not attached MD Law allows the State to appeal if the trial judge dismisses a case or suppresses evidence in certain cases (generally speaking: crimes of violence and felony drug cases)
Appeal- Instead of appealing to the Court of Special Appeals, an appeal can be taken to a 3-judge panel in the circuit court (known as an in-banc review)