Full Opinion

In the Matter of Marcella Holloman, No. 0682, September Term, 2024. Opinion by Eyler, Deborah S., J. Filed November 2, 2026. MARYLAND CONSTITUTION - - STATE’S ATTORNEYS - - GRAND JURIES - - SEPARATION OF POWERS - - DISCRETION OVER WHETHER TO INDICT. In 2012, Marcella Holloman called the police to her home for assistance with her adult son, who was experiencing a mental health crisis. An altercation ensued that resulted in her son being shot and killed by one of the responding officers. The Baltimore Police Department and the Office of the State’s Attorney for Baltimore City investigated the incident and each concluded that the shooting was justified. The State’s Attorney exercised discretion not to seek an indictment against the officer for any crimes. Ms. Holloman disagreed and sought permission from the circuit court to go to the grand jury herself. The court ruled against her. Ultimately, this Court held that Ms. Holloman had a common law right to seek to present material to the grand jury. Holloman v. Mosby, 253 Md. App. 1 (2021). On remand, Ms. Holloman gave material to the court, which provided it to the grand jury, and the grand jurors decided to investigate. The circuit court appointed attorneys from the Office of the State Prosecutor (“OSP”) to assist the grand jurors with any legal issues they sought advice on. After investigating and consulting with the OSP attorneys, the grand jury returned a presentment, in which it found probable cause that the officer had committed voluntary manslaughter, reckless endangerment, and use of a firearm in the commission of a crime of violence. The presentment was given to the State’s Attorney, who did not pursue an indictment. Ms. Holloman sought relief from the circuit court, arguing that because the grand jury found probable cause, she was entitled to have them return an indictment, or that the presentment effectively was an indictment. The court ruled that the State’s Attorney has the ultimate discretion over whether to indict, and a grand jury’s presentment finding probable cause does not override that discretion. Ms. Holloman noted an appeal from the adverse judgment. Held: Judgment affirmed. In Maryland, state’s attorneys are constitutionally created state officers elected by the people of a particular county or Baltimore City. They have the power granted to them by the Maryland constitution and by statute. A state’s attorney has broad discretion over whether to charge by indictment and, if an indictment is obtained, how to prosecute. This discretion derives from the separation of powers in the Maryland constitution. The General Assembly may not reduce or transfer the authority of the state’s attorneys, including their discretion over whether to seek an indictment, and the courts may not interfere with that authority either. The role of the courts is limited to deciding whether a state’s attorney exercised his or her discretionary power illegally or unconstitutionally. There never has been an allegation of that sort here. Grand juries are not constitutionally created entities in Maryland. They exist because they were part of the common law of England when the United States was founded and the Maryland constitution was adopted. When a state’s attorney presents a bill of indictment to the grand jury, the grand jury can receive evidence and then decides whether to charge by means of returning a “true bill” indictment. When the grand jury receives evidence from a source other than the state’s attorney, it has the power to return a presentment, in which it may find probable cause that crimes have been committed. A presentment finding probable cause is not a true bill indictment - - it is a recommendation to the state’s attorney to seek an indictment. Maryland law does not support the proposition that a grand jury, on its own, without being presented with a bill of indictment by the state’s attorney, has the power to return a true bill indictment, even when it considers material presented to it by a citizen exercising that common law right. If the law were otherwise, a state’s attorney’s discretion to indict, part of his or her constitutional authority, would be impaired. Over the fourteen-year life of this case, there have been three State’s Attorneys for Baltimore City, none of whom exercised discretion to seek an indictment against the officer who killed Ms. Holloman’s son. To be sure, under Maryland common law, a citizen has the right to seek to present material to the grand jury to show that a person committed a crime. Contrary to Ms. Holloman’s argument, that common law right is not rendered futile if the grand jury cannot on its own return a true bill. As was the case here, the grand jury can consider the material given to it and, if it finds probable cause, return a presentment recommending an indictment. This creates an opportunity for the state’s attorney to rethink the situation and change his or her mind. Here, the State’s Attorney did not change his mind. Like those who preceded him, he exercised discretion not to seek an indictment, which was his sole prerogative. Circuit Court for Baltimore City Case No. 24-C-13-005128 REPORTED IN THE APPELLATE COURT OF MARYLAND No. 0682 September Term, 2024 ______________________________________ IN THE MATTER OF THE PETITION OF MARCELLA HOLLOMAN ______________________________________ Nazarian, Shaw, Eyler, Deborah S. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Eyler, Deborah S., J. Dissenting Opinion by Nazarian, J. ______________________________________ Filed: November 2, 2026 Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2026.11.02 14:31:05 -05'00' Gregory Hilton, Clerk The question at the heart of this appeal is who wields ultimate control over the decision to charge by indictment: the grand jury in a circuit court that has recommended that charges be brought or the state’s attorney for that jurisdiction who has exercised discretion not to charge? We hold that the decision belongs to the state’s attorney. FACTS AND PROCEEDINGS On May 19, 2012, Marcella Holloman, the appellant, called the Baltimore Police Department (“BPD”) for assistance with her son, Maurice Donald Johnson, who was experiencing a mental health crisis. Two officers responded. There followed a physical altercation in which one of the officers shot and killed Mr. Johnson. The State’s Attorney for Baltimore City (“State’s Attorney”), the appellee, and the BPD each investigated the incident. Both concluded that the shooting was justified. The State’s Attorney exercised discretion not to seek a true bill indictment.1 Ms. Holloway believes that her son’s death was caused by criminal conduct on the part of the officer who shot him and wants that officer to be prosecuted. In the Circuit Court for Baltimore City, after the State’s Attorney decided not to seek a true bill indictment, she 1 Maryland Rule 4-102(d) defines an indictment as “a charging document returned by a grand jury and filed in a circuit court.” The state’s attorney provides the grand jury with a potential charging document, sometimes called a bill, upon which the grand jury decides, after considering evidence, whether there is probable cause that the putative defendant committed the crimes charged. If the grand jury finds probable cause, it returns the indictment to the state’s attorney, marked as a “true bill.” Seymour F. Harris & Alured Myddelton Wilshere, Principles of the Criminal Law, ch. VI, The Grand Jury, at 328-29 (13th ed. 1919) (hereinafter “Harris & Wilshere”). “The circuit court shall file an indictment returned by a grand jury.” Md. Rule 4-211(d). For clarity, we shall refer to an indictment a grand jury has returned marked as a true bill as a “true bill indictment.” We discuss what a presentment is infra. sought to submit material about the shooting to the grand jury. When the court denied her that opportunity, she appealed. In Holloman v. Mosby, 253 Md. App. 1 (2021), we held that under Maryland common law, Ms. Holloway had the right to seek to submit relevant material about the shooting to the grand jury for its consideration. On remand, Ms. Holloway provided the circuit court with the material she wanted the grand jury to review. In late 2022, the court gave those materials to the grand jury. The grand jury decided to investigate and asked the court for legal guidance in doing so. The court appointed two attorneys with the Office of the State Prosecutor (“OSP”) to be available to assist the grand jurors if they requested legal advice. In December 2022, the grand jury decided that additional investigation was necessary. Because the grand jury was at the very end of its term, the matter was turned over to the 2023 grand jury, which considered the material itself. In follow up to questions by the grand jurors, attorneys from the OSP consulted with attorneys with the Office of the Attorney General and were told that the grand jury could not issue a true bill indictment but could issue a “presentment.” Based on that advice, the OSP attorneys informed the grand jurors that if they were inclined to act, the “safest” course of action would be to issue a presentment. On May 3, 2023, the grand jury returned a written “Presentment to the State’s Attorney’s Office” (“Presentment”), in which it found probable cause that, in shooting and killing Mr. Johnson, the officer had committed the crimes of voluntary manslaughter, reckless endangerment, and use of a firearm in the commission of a crime of violence. A meeting was held that day at which the grand jury and two prosecutors with the Office of 2 the State’s Attorney for Baltimore City were present. A grand jury representative, probably the foreperson, read the Presentment and the prosecutors asked questions. A court reporter attended the meeting and made an audio recording of it. It appears from what was said during the conference that the grand jury wanted the officer to be indicted for the three crimes. Thereafter, the State’s Attorney took no action, effectively exercising his discretion not to charge the officer, as had a prior state’s attorney.2 Unfortunately, neither Ms. Holloman nor the court was informed of the Presentment, the meeting that had taken place, and the State’s Attorney’s exercising discretion not to charge. After time passed with no activity that she knew of, Ms. Holloman filed various motions, including a motion asking the court to determine the status of the matter and grant her appropriate relief. The court held a hearing that was attended by Ms. Holloman and members of the State’s Attorney’s Office. An attorney with the OSP testified to seeking informal advice from the Office of the Attorney General regarding whether the grand jury had the power to indict without involvement of the prosecutor. The attorney advised the grand jurors that they “could not offer an indictment” but “could issue a presentment[.]” 2 There have been three State’s Attorneys for Baltimore City during the life of this case. Gregg Bernstein, state’s attorney from January 3, 2011, to January 5, 2015, occupied the office when the shooting occurred and originally exercised discretion not to prosecute. Marilyn Mosby was state’s attorney from January 5, 2015, to January 3, 2023, when Ms. Holloman filed suit and when the first appeal was decided. Ivan Bates became state’s attorney on January 3, 2023, and still holds that office. He was state’s attorney when the grand jury returned the Presentment and exercised discretion not to seek an indictment. 3 Ms. Holloman argued that the Presentment was the functional equivalent of a true bill indictment, which the State’s Attorney was required to prosecute; that the advice given to the grand jurors to issue a presentment instead of an indictment was incorrect; that the court should submit to the grand jury an indictment giving effect to the grand jury’s decision to charge or, alternatively, because the term of the grand jury that returned the Presentment had ended, all the material submitted to that grand jury should be given to the current grand jury, with instructions to investigate Ms. Holloman’s claims and that they could return a true bill indictment if they found probable cause that the officer had committed a crime or crimes. The State’s Attorney took the position that Ms. Holloman had received all she was entitled to under this Court’s decision in Holloman v. Mosby and nothing more need be done. The circuit court took the matter under advisement and filed, under seal, a Memorandum and Order analyzing the issues. It determined that a grand jury that has chosen to investigate when asked to do so by a private person may submit a presentment to the state’s attorney, who has the sole authority to determine whether to seek a true bill indictment. If the state’s attorney exercises discretion not to seek an indictment, the matter is concluded. As the State’s Attorney had exercised discretion in that way, the court denied Ms. Holloman’s motion and entered a final judgment. The court also determined that a private person such as Ms. Holloman does not have the right to seek to go before another grand jury in the future, having already exercised her common law right; and because the officer was not indicted, the grand jury proceedings remained subject to secrecy and the materials would be kept under seal. The court’s order was entered as a final judgment. 4 On appeal, Ms. Holloman presents several questions, which we have combined and reworded as follows: I. Did the circuit court err in ruling that, if without involvement of the State’s Attorney, a grand jury finds probable cause that a crime has been committed, it does not have the power to issue a true bill indictment but may issue a presentment recommending that the State’s Attorney pursue charges? II. Did the circuit court err in ruling that Ms. Holloman does not have the right to once again seek to present materials to a grand jury in the future, although she has exercised her right to do so? III. Did the circuit court err in ruling that the case would be kept under seal?3 We hold that, without being given a bill of indictment from the State’s Attorney, the grand jury did not have the independent power to return a true bill indictment; and that, upon receipt of the Presentment from the grand jury finding probable cause that crimes had been committed, the State’s Attorney had discretion over whether to seek charges. We also 3 The questions presented by Ms. Holloman are: 1. Whether grand juries in Maryland have plenary power to charge offenses without interference of the State’s Attorney? 2. Was the grand jury wrongly advised that its power to originate charges based on its investigation is limited to issuing “presentments” asking the State’s Attorney to indict? 3. Where the grand jury’s decision to charge criminal offenses is thwarted by erroneous legal instructions and/or improper action or omission, what is the proper remedy? 4. Did the circuit court err by prohibiting Ms. Holloman from asking any future grand jury to investigate the killing of her son? 5. Did the circuit court err by ordering that the presentment, the State’s Attorney’s refusal to act on it, and the court’s entire opinion remain sealed from public disclosure? 5 conclude that Ms. Holloman does not have a right to seek to go before another grand jury in the future and that this matter should be shielded in part to maintain grand jury secrecy. Because the circuit court did not err, we shall affirm its judgment. STANDARD OF REVIEW Because the issues in this appeal are legal questions, we apply a non-deferential de novo standard of review. Howell v. State, 465 Md. 548, 561 (2019); Floyd v. Baltimore City Council, 241 Md. App. 199, 207 (2019) (quoting Clickner v. Magothy River Ass’n, Inc., 424 Md. 253, 266-67 (2012)); Md. Rule 8-131(c). DISCUSSION Before this Court, Ms. Holloman contends the circuit court erred in concluding that a grand jury in Maryland cannot return a true bill indictment, i.e., initiate charges, without involvement of the state’s attorney. She maintains that the circuit court erred in ruling that the grand jury was properly instructed on that point. She argues that the circuit court should have ruled that the Presentment was tantamount to a true bill indictment that the State’s Attorney was required to treat as a charging document and that, as a remedy for the grand jury’s having been limited to returning a Presentment, she should have been allowed to provide her materials to the current grand jury so it could have an opportunity to return a true bill indictment. Ms. Holloman asserts that the circuit court incorrectly ruled that she has no right to present her materials to a future grand jury and that the matter should be sealed. The State’s Attorney contends Ms. Holloman lacks standing to appeal. On the merits, the State’s Attorney counters that the circuit court correctly ruled that the grand jury 6 could not return a true bill indictment in this situation and that the State’s Attorney had ultimate discretion over whether to initiate charges against the officer. It maintains that Ms. Holloman does not have the right to go before a future grand jury with the same materials she presented to the grand jury here and that the proceedings properly were sealed. In her reply brief, Ms. Holloman maintains that she has standing to pursue this appeal. I. Ms. Holloman Has A Statutory Right To Appeal The Circuit Court’s Order Because It Was A Final Judgment That Settled The Rights Of The Parties And Put Them Out Of Court The State’s Attorney contends Ms. Holloman lacks standing to bring this appeal for several reasons. Likening her rights to those of a victim or victim’s representative under Md. Code (2001, 2025 Repl. Vol.), §§ 11-101 to 11-105 of the Criminal Procedure Article (“CP”), he argues that any appeal right Ms. Holloman might have would not ripen until he has exercised discretion to bring criminal charges; and even then, the appeal rights conferred by CP § 11-103 do not permit an appeal pertaining to grand jury proceedings. He points out that, if Ms. Holloman were to have standing, she would enjoy more rights than the victim of a crime does in a case presented to a grand jury by a prosecutor. Finally, he argues that Ms. Holloman has no right to appeal the grand jury’s actions and that her common law entitlement began and ended with the presentation of her materials to that body. Ms. Holloman counters that her status as a party to the litigation before the circuit court entitles her to appeal the court’s final judgment; that she has a direct interest in the 7 subject matter of this dispute; and that her petition to the circuit court stated an actual controversy that the court ruled on and over which this Court can grant meaningful relief on appeal. She reiterates that the subject of her appeal is the court’s legal rulings regarding the charging powers of a grand jury and the advice given by the OSP, not the actions of the grand jury. We agree that Ms. Holloman has standing to appeal. Ms. Holloman is not in a position analogous to a crime victim or victim’s representative for purposes of standing to appeal. She is a party to this case. We held in her first appeal that she had a common law right to seek to present evidence of a potential crime to the grand jury, and on remand she exercised that right. If her role is akin to any other participant in litigation, it is akin to that of a public prosecutor, not a crime victim. Like the prosecutor, she presented her most convincing case to the grand jury unilaterally. Her standing has not changed since she first brought this case and appealed the initial ruling. Before the first appeal, the State’s Attorney conceded in the circuit court that she had standing to seek to present her materials to the grand jury, which she initiated by filing a petition for writ of mandamus against the State’s Attorney in 2013 and an amended writ in 2015, Holloman, 253 Md. App. at 8, and through which this appeal returns to us now. The State’s Attorney does not explain why Ms. Holloman’s ability to appeal from rulings on motions should be any different now than it was in 2021, when we reviewed her appeal from the circuit court’s denial of a motion for relief and to present materials to the grand jury. Id. at 10. In Holloman, we did not address what would or could happen after Ms. Holloman exercised her common law right, including what the grand jury could or could 8 not do if it accepted Ms. Holloman’s materials and pursued an investigation, all of which is at the heart of the questions before us today. Ms. Holloman remains a party to this case, which is an extension of the Holloman case we addressed in 2021, and should have the opportunity to challenge on appeal the court’s ruling on what the grand jury has the power to do when provided material by a person exercising the common law right we recognized in our earlier opinion. She was entitled to move for appropriate relief after learning that the grand jury had returned a Presentment, and to have the court determine whether the grand jury had the power to charge, to further implement her common law right. Moreover, as Ms. Holloman asserts, her appeal is not a challenge to the grand jury’s actions in investigating, deliberating, and deciding to return the Presentment. She could not make such a challenge as even the accused in a criminal appeal is afforded no such right. See In re Misc. 4281, 231 Md. App. 214, 237-38 (2016) (“[A] defendant may not challenge an indictment solely on the ground that the grand jury considered incompetent evidence.”); Bartram v. State, 280 Md. 616, 622-23 (1977) (stating that a defendant cannot cross- examine grand jurors about a grand jury’s decision not to investigate or attempt to impeach its indictments (citing Owens v. Owens, 81 Md. 518, 522 (1895); Hooker v. State, 98 Md. 145, 156 (1903), overruled on other grounds by Coblentz v. State, 164 Md. 558 (1933))); see also In re a Special Investigation No. 224, 54 Md. App. 137, 145 (1983) (stating that a witness may not object to a grand jury’s inquiry on grounds of incompetency, irrelevance, authority, or otherwise set limits on its investigation (citing United States v. Calandra, 414 U.S. 338, 345 (1974))). Rather, Ms. Holloman is challenging the circuit court’s rulings that 9 the grand jury did not have the power to issue a true bill indictment without the State’s Attorney’s involvement and the OSP’s advice to the grand jury to that effect. Finally, as a party against whom a judgment was rendered, Ms. Holloman has a statutory right to bring this appeal. “[E]xcept as may be constitutionally authorized, the right of appeal is entirely dependent upon statutes[,]” State v. Green, 367 Md. 61, 76 (2001), and a general appeal right “exists from a final judgment entered by a court[.]” Md. Code (1974, 2020 Repl. Vol.), § 12-301 of the Courts & Judicial Proceedings Article (“CJ”). The right to appeal a final judgment includes challenges to dispositive motion rulings in typical grand jury proceedings. In re Special Investigation No. 231, 295 Md. 366, 370 (1983) (holding that in action comprised only of State’s motion to disqualify attorney representing recipients of grand jury subpoenas, disposition of motion was a final judgment under CJ § 12-301 as “nothing more [was] to be done” in case and nothing else was pending before the court); In re Misc. 4281, 231 Md. App. at 218-19, 219 n.3 (stating that where county moved for protective order to quash grand jury subpoena issued to county employees, State could exercise “general right of appeal” afforded by CJ § 12-301 to challenge partial grant of protective order). And this general right is a means to raise challenges to final court judgments in mandamus actions, from which this case arose. Bhargava v. Prince George’s Cnty. Plan. Bd., 265 Md. App. 172, 188 (concluding that circuit court ruling on common law mandamus action was an exercise of original jurisdiction reviewable by this Court pursuant to CJ § 12-301), cert. denied, 490 Md. 291 (2025); Matthews v. Hous. Auth. of Baltimore City, 216 Md. App. 572, 580-81 (2014) (stating common law mandamus actions 10 are reviewable under CJ § 12-301 (citations omitted)); see Holloman, 253 Md. App. at 8, 10-11 (reviewing challenges to final judgment in mandamus action). In summary, Ms. Holloman seeks review of a final judgment entered by the circuit court in which it ruled that the grand jury’s charging powers were subordinate to the State’s Attorney’s prosecutorial discretion and that the OSP’s advice had been correct. Because the court’s final order settled the rights of the parties and put Ms. Holloman out of court, it was a final appealable judgment that brings the court’s legal conclusions before us. See Judge Kevin F. Arthur, Finality of Judgments and Other Appellate Trigger Issues, § 4 (4th ed. 2025) (“[T]he accepted test for finality is whether the court’s ruling has the effect of putting the parties out of court and denying them the means of further prosecuting the case or the defense.”). Accordingly, Ms. Holloman has standing, and this appeal properly is before us for a decision on the merits. II. Without The State’s Attorney’s Submitting A Bill Of Indictment, The Grand Jury Could Not Issue A True Bill Indictment And Its Presentment Did Not Operate As A True Bill Indictment A. Article 3 of the Declaration of Rights of the Maryland Constitution of 1776 entitled the people of Maryland to the common law of England as it existed when our country was founded.4 At that time, under English common law, upon request of the King, private lawyers acted as attorneys general to prosecute crimes. Article XLVIII of that same 4 That provision presently appears in Article 5 of the Declaration of Rights. 11 constitution established an office of the Attorney General but did not specify the Attorney General’s powers and duties; therefore, by virtue of Article 3, the Maryland Attorney General had the powers and duties vested in the Attorney General by the common law of England. Murphy v. Yates, 276 Md. 475, 480-81 (1975), superseded by constitutional amendment as stated in In re Crim. Investigation CID 18-2673 in the Cir. Ct. for Baltimore City, 493 Md. 646, 662 (2026). That remained the case until 1821, by which time the General Assembly had enacted legislation establishing by statute the powers and duties of the Attorney General. Id. at 483. In 1851, a new constitution was adopted that eliminated the position of Attorney General and created the position of state’s attorney for each county and Baltimore City, making what had been the statutory powers and duties of the Attorney General the constitutional power and duties of the state’s attorneys. Id. at 483-84. In 1864, another constitution was adopted that recreated the office of the Attorney General and the office of the state’s attorney, this time as elected positions. That constitution spelled out and returned to the Attorney General “a narrowly defined array of duties . . . , leaving the constitutional powers and duties relating to criminal prosecutions at the trial level in the office of the State’s Attorneys where they had been since 1851 and still are.” Id. at 488. Finally, “after the adoption of the [Maryland] Constitution of 1867, the General Assembly was without power to limit or modify the constitutional duties of either the State’s Attorneys or the Attorney General by transferring duties of either of these offices to another office[] created by statute.” Id. 12 As the history chronicled in Murphy establishes, the Office of the State’s Attorney for each jurisdiction was constitutionally created and remains a constitutional position. [T]he State’s Attorney is an officer unknown to the common law, and being an officer in Maryland, created by our Constitution, it follows that his powers and duties, whatever they may be, must be derived either from the Constitution itself or laws passed in pursuance thereof. Hawkins v. State, 81 Md. 306, 310 (1895). With many amendments, the Constitution of 1867 remains in force today. It is well-recognized that state’s attorneys are state, not local, officials, with powers granted to them by the constitution and by statute. Valle v. Pressman, 229 Md. 591, 599 (1962). At the same time, state’s attorneys are elected officials chosen for office by the voters of the jurisdiction they serve. CP § 15-102 directs that “a State’s Attorney shall, in the county served by the State’s Attorney, prosecute and defend on the part of the State all cases in which the State may be interested.” In doing so, the state’s attorney for a jurisdiction has general discretion over whether to initiate and prosecute crimes. Oglesby v. State, 441 Md. 673, 680 (2015) (“State’s Attorneys retain the broad discretion in determining which cases to prosecute, which offenses to charge, and how to prosecute the cases they bring[.]” (cleaned up)); Evans v. State, 396 Md. 256, 298 (2006) (same); Beverly v. State, 349 Md. 106, 121 (1998) (“It is well-settled that the determination of which criminal charges, if any, to bring is a matter of prosecutorial discretion.”); Sinclair v. State, 278 Md. 243, 252 (1976) (“It is clear that state’s attorneys in this State have very wide and largely unreviewable discretion as to whether or not to pursue the prosecution of criminal offenses.”). As an elected official, a 13 state’s attorney who exercises prosecutorial discretion not to the public’s liking is answerable at the voting booth. B. Unlike state’s attorneys, grand juries are not creatures of the Maryland Constitution. Nor does the Maryland Constitution confer a right to be indicted by a grand jury, for any crime.5 Davis v. State, 267 Md. App. 118, 165 (2025).6 Grand juries came into use in medieval times as part of the common law of England and still were used there when our country was founded. Accordingly, the grand jury became part of the Maryland common law under original Article 3 of the Declaration of Rights. The scope of the grand jury’s role in Maryland is a matter of interpretation of the common law, and the grand jury’s function and existence can be changed by the Maryland Supreme Court or by statute.7 5 The grand jury is not mentioned in the Maryland Constitution. However, under Article 21 of the Maryland Declaration of Rights, an accused who has been indicted does have a constitutional right to be given a copy of “the Indictment, or charge[.]” 6 The Fifth Amendment to the federal Constitution confers the right to be indicted by a grand jury for “a capital, or otherwise infamous crime[.]” This right has not been incorporated into the states through the Fourteenth Amendment. Hurtado v. California, 110 U.S. 516, 538 (1884). 7 In England and Wales, grand juries were abolished for most crimes in 1933 by the Administration of Justice (Miscellaneous Provisions) Act, and were completely abolished in 1948, by the Criminal Justice Act. Scotland did not use grand juries. Nathan T. Elliff, Notes on the Abolition of the English Grand Jury, 29 Am. Inst. Crim. L. & Criminology 3, 7 (1938-1939). At present, the only countries that still use grand juries are the United States and Liberia. Nick Gremillion, What is a grand jury and how does it work?, WAFB 9 (Nov. 30, 2017) wafb.com/story/36966860/what-is-a-grand-jury-and-how-does-it-work [https://perma.cc/LBR4-5PVA]. 14 Historically, grand juries were comprised of residents of discrete areas of England who were gathered and presided over by a judge or other official, depending upon the jurisdiction. The official charged the grand jurors on relevant points of law and gave them “bills” of indictment that had been drawn up. The grand jurors retired to a room where, for each matter, they heard from the witnesses who had been indorsed on the bill. If, based on the testimony of the witnesses in a particular matter, the grand jurors found by majority vote that the evidence supported prosecution on at least one of the proposed charges, the foreman would indorse the bill as a “true bill,” at which point it became a charging document and was returned to the crown prosecutor. See In re Rep. of Grand Jury, 152 Md. 616, 619-21 (1927) (reviewing history of development of grand jury in England). See also George J. Edwards, Jr., The Grand Jury, An Essay, at 124 (George T. Bisel Company 1906) (hereinafter “Edwards”); Harris & Wilshere, at 328-29. In Hale v. Henkel, 201 U.S. 43 (1906), the United States Supreme Court reviewed the history of the grand jury as it developed in England and was used in the United States. “Under the ancient English system, criminal prosecutions were instituted at the suit of private prosecutors, to which the King lent his name in the interest of the public peace and good order of society.” Id. at 59. “[T]he usual practice was to prepare the proposed indictment and lay it before the grand jury for their consideration.” Id.8 However, if on their 8 See Gillespie v. State, 147 Md. 45, 66 (1924) (quoting Barlow v. State, 56 S.E. 131, 131 (Ga. 1906)): “Under the English practice, where it was desired to have a grand jury act upon an indictment, a draft of it, termed a ‘bill,’ was engrossed on (cleaned up…) 15 own, the grand jurors or any one of them gained knowledge of facts showing that an offense had been committed, including from witnesses, and no indictment had been laid before them by the prosecuting attorney, it was their duty to inform the prosecutor and the court by making an accusation in the form of a “presentment.” Id. at 60. This differed from an indictment laid before them by the prosecutor. The Court explained that a presentment followed by an indictment was “to be considered as one act, the second to be considered only as an amendment to the first,” and in the United States, the practice has been “to pass over, unnoticed, presentments on which the attorney does not think it proper to institute proceedings.” Id. (citing United States v. Hill, 26 F. Cas. 315, 316 (1809)).9 The Maryland Supreme Court also has discussed the meanings of and differences between presentments and indictments. In In re Report of Grand Jury, 152 Md. at 622, the Court explained: [A]n indictment is a formal written accusation made by the public prosecutor, and submitted to the grand jury, in order that they may determine from competent evidence whether the accusation, if proven, would be sufficient to bring about the conviction of the accused. The grand jury, finding this to be true, endorses upon the indictment, “A True Bill,” attested by its foreman. parchment and laid before the grand jurors. They examined witnesses in reference to its allegations, and, if they found them true, and so declared, it became an indictment.” 9 In Hale, a witness was subpoenaed to testify before a grand jury and produce documents. He appeared but refused to testify. Subsequently he was held in contempt. He argued before the United States Supreme Court that as there were no “charges” against him, he had the right not to obey the subpoena. The Court held that “the examination of witnesses [by the grand jury] need not be preceded by a presentment or indictment formally drawn up[.]” Hale, 201 U.S. at 65. 16 By contrast, Presentments are accusations of crime, made by the grand jury from their own knowledge or from evidence furnished them by witnesses or one or more of their members. In a presentment the grand jury charges that a specific person has been guilty of specific acts which constitute a violation of the criminal law; and from this presentment the prosecuting attorney prepares an indictment and returns it to the grand jury for the indorsement of “A True Bill.” Id. at 622-23 (emphasis added). See also Edwards, at 124. In short, a presentment is a report by the grand jury documenting its finding of probable cause that a crime or crimes have been committed by a specific person or persons, based on information coming to it from a source outside the public prosecutor and without having had an indictment laid before it; whereas an indictment is a potential charging document put before the grand jury by the public prosecutor and considered for return as a true bill, if the grand jury finds it to be so. Upon being r