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3784
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VETOES
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only to murder not punishable by death (as, for example,
in a case where the State charges only second degree
murder or specifically disavows any intention to seek the
death penalty for a first degree murder charge) that
should create no significant problem with respect to
prosecutions where the death penalty may or will be
sought. 7
As we have already noted, even if the inadvertent
failure to amend §412 in the appropriate manner is held
to have rendered that section altogether meaningless and
of no application whatsoever, we do not perceive any
substantial problems since its provisions are largely, if
not entirely, unnecessary to the procedural conduct of
murder trials in Maryland.
Having expressed the view that the inadvertent
failure to amend §412 will not create any constitutional
or other substantial problems, we must hasten to add that
it is extremely unfortunate that such an error has been
made in a bill of such importance. Notwithstanding our
opinion that the error is not of major dimension, we are
confident that defense counsel in capital cases will
argue to the contrary and will use the error in their
inevitable efforts to litigate the validity of Maryland's
capital punishment law ve1 non and to contest the
imposition of a death sentence en their particular
client. Making this additional issue available to them
can only prolong the litigation which is certain to occur
over any such statute and further postpone the time when
the penalties provided for therein can be carried out.
3. You have next directed our attention to a
potential inconsistency in the portion of §413(b) dealing
with the type of evidence which may be admitted at the
sentencing proceeding. The statute provides that:
"In the proceeding, evidence may be presented as to
any matter that the court deems relevant to
sentence, and may include matters relating to any of
the aggravating or mitigating circumstances
enumerated in this section. Any such evidence which
the court deems to have probative value may be
received, regardless of its admissibility under the
exclusionary rules of evidence." (Emphasis
supplied.)
You have correctly pointed out that the concepts of
"relevance" and "probative value" have been used somewhat
interchangeably in determining the admissibility of
evidence, citing as an example the Court of Appeals
opinion in Haile v. Dinnis, 184 Md. 144, 152 (1944).
The language employed in Senate Bill 106 is taken
directly from the Florida statute upheld in Proffitt v.
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