AS TIME GOES BY: HYPOTHETICALLY SPEAKING THE CONFESSION GROWS WEAKER

Maryland Rule 4-212 (e) provides that "a defendant shall be taken before a judicial officer of the District Court without unnecessary delay and in no event later than 24 hours after arrest." All that really means is that "deliberate and unnecessary delay must be given heavy weight in determining whether a resulting confession is voluntary." However, that's not the only factor to be considered. The same factors that are normally considered in determining voluntariness of a confession are also taken into consideration when a court determines whether or not to admit a confession when there's an issue of prompt presentment.

Generally, the time before the extradition is undertaken is not taken into consideration as a factor in the voluntariness of a confession; it's only starts upon a defendant's return to Maryland. However, in the hypothetical, a defendant had been back within the State of Maryland for 36-48 hours before he was taken before a District Court Commissioner to have his rights explained. That period of time weighs very, very heavily against the State in arguing for its admission as a voluntary statement. All of the other factors would have to outweigh the time delay, and in the hypothetical there are many positive factors that can be argued, that the defendant was well fed, allowed to worship, taken to brunch, given lots of rest, etc. The State would be very hard pressed to show that the delay as outlined was necessary and required, and while the State might well win at a suppression hearing, there are no guarantees what a Maryland appellate court might do on appeal.

There is a very simple solution to this problem. Anytime that an officer believes that there will be a substantial (more than several hours) delay in taking a suspect before a Commissioner, the officer can simply request the suspect to read and sign a "Waiver of Prompt Presentment". Just as with Miranda warnings, a defendant may voluntarily waive his "right" under Maryland statute and rule to go before a judicial officer in a timely fashion. Since the suspect was so very cooperative with the officers in the hypothetical, the odds are very high that he would have waived "prompt presentment."

The bottom line is that this one's a very, very close call, and one which could go either way. At the very least when the officers were approaching the 12 hour mark, consideration should have been given to having the suspect waive any rights to appear before a commissioner in a timely fashion.