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3785
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MARVIN MANDEL, Governor
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Florida, supra; §921.141, Fla. Stat. Ann. This language,
albeit in a slightly different form but employing the key
phrases "irrelevancy" and "probative force," appears in
§201.6 of Tentative Draft No. 9 of the Model Penal Code
adopted by the American Law Institute. In approving the
constitutionality of the Florida statute the Supreme
Court did not comment on this particular language. The
Court did refer favorably to the Model Penal Code draft
of death penalty legislation in various instances in its
1976 opinions, but made no reference to this particular
provision.
To the extent that the terms "relevant to sentence"
and "probative value" are given different meanings, it is
our opinion that the statute simply calls upon the court
to first determine whether a particular item of evidence
is relevant to the sentencing issue and then to admit
such evidence if it is determined to have probative value
as to some matter pertinent to the sentencing issue. To
the extent that the probative value standard is a
stricter one (and we believe it is), it will ultimately
control the admissibility of evidence. 8
You have also directed our attention to the fact
that, while §413(b) prohibits " the introduction of any
evidence secured in violation of the Constitutions of the
United States or the State of Maryland", a confession
obtained without giving the "Miranda" warnings is
admissible on cross-examination of the defendant for
certain purposes during the trial on the question of
guilt. See Harris v. New York, 401 0. S. 222 (1971).
You ask whether or not such evidence, or other similarly
obtained evidence, may be admitted at the sentencing
proceeding notwithstanding the exclusionary language
quoted above.
When originally announced, the principles of Miranda
v. Arizona, 384 U. S. 436 (1966) , were considered to be
of constitutional dimension, rooted in the Fifth
Amendment right against self-incrimination. Harris v.
New York, supra, is but one of a line of Supreme Court
cases which have eroded the Miranda doctrine, treating
its principles as "only the prophylactic rules developed
to protect" the Fifth Amendment rights or as "recommended
procedural safeguards". See Kidd v. State, 33 Md. App.
445 (1976), cert. pending Court of Appeals of Maryland,
No. 154 September Term 1976. Although this area of the
law must be regarded as unsettled at this time, it is
safe to conclude on the authority of Harris v. New York,
supra, that a statement obtained from the defendant
without first giving the Miranda warnings (as opposed to
a statement or confession involuntarily obtained) would
not have been obtained in strict "violation of the
Constitutions of the United States or of the State of
Maryland" and hence could be introduced at the death
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