A criminal defendant, charged with possession of controlled dangerous substance is permitted to introduce evidence of a prescription at trial.[1]In order to be considered non-hearsay, the prescription must be used to establish a statutory defense and be accompanied by authentication.[2]The Court of Appeals of Maryland suggested that the authentication can come in the form of testimony from a prescribing physician, the physicians custodian of records, or the testimony of the defendant, among other things.[3]Ultimately it is still left up to the jury to determine the credibility of the evidence.[4]

In May 2014, the police officers executed a search warrant at the home of Defendant Steven Young.[5]Mr. Young was detained and Mirandized.[6]Mr. Young offered a statement to the police that there were controlled dangerous substances in the home.[7]Upon inspection the Police found, Heroin, Methadone, OxyContin, and Xanax.[8]Young was arrested and charged with possession of controlled dangerous substances and possession with intent to distribute controlled substances.[9]Young attempted to file a motion to suppress the evidence of the drugs asserting that he and his wife had valid prescriptions.[10]At trial, the State moved for a motion in limine looking to exclude the prescriptions as hearsay.[11]The trial court granted the motion and Young was convicted.[12]

On appeal, the Court of Special Appeals of Maryland affirmed in part and reversed in part.[13]The appellate court found that a valid prescription can provide a basis of a statutory defense to the charges of possession and possession with intent to distribute Methadone, Xanax and, OxyContin.[14]

On review, the Court of Appeals of Maryland, affirmed the lower court’s ruling.[15]The Court found that a valid prescription falls under a verbal act exception to the hearsay rule.[16]In finding this the Court expressed the importance of the prescription in establishing a statutory defense for possession and possession with intent to distribute.[17]In its opinion, the Court suggested several possible methods for authentication previously mentioned.[18]

This holding is important because it will allow in future criminal trials, the Defendant to offer a statutory defense for possession of controlled dangerous substances by showing that they have a prescription. This defense will obviously not extend to possession of illegal drugs such as heroin and cocaine. However, it can make a significant difference with medicinal marijuana becoming more prevalent in Maryland.

Shawn Haught, Jr. is a 3L at the University of Baltimore and will graduate in May of 2019. Shawn is a second year staff editor on Law Forum. Shawn is from Anne Arundel County, Maryland and currently resides there. Shawncurrently works at Hassan, Hassan & Tuchman, P.A. a small personal injury law firm in Baltimore City. 

[1]State v. Young, 2, SEPT. TERM, 2018, 2018 WL 6613345, (Md. Dec. 18, 2018).

[2]Id.

[3]Id.

[4]Id.

[5]State v. Young, 2, SEPT. TERM, 2018, 2018 WL 6613345, (Md. Dec. 18, 2018).

[6]Id.

[7]Id.

[8]Id.

[9]Id.

[10]State v. Young, 2, SEPT. TERM, 2018, 2018 WL 6613345, (Md. Dec. 18, 2018).

[11]Id.

[12]Id.

[13]State v. Young, 2, SEPT. TERM, 2018, 2018 WL 6613345, (Md. Dec. 18, 2018).

[14]Id.

[15]State v. Young, 2, SEPT. TERM, 2018, 2018 WL 6613345, (Md. Dec. 18, 2018).

[16]Id.

[17]Id.

[18]Id.