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Maryland Court of Appeals Holds Valid Prescription Constitutes ‘Verbal Act’ Thus Not Barred From Evidence as Hearsay When Basis for Statutory Defense

by Dale Chappell

The Maryland Court of Appeals held that evidence of a valid prescription constitutes non-hearsay and is admissible as a “verbal act” when being admitted into evidence as the basis of a statutory defense.

In a case where most of the drugs involved those that would be legal to possess with a valid prescription, the prosecutor moved to exclude evidence that Steve Young, charged with multiple counts of possession with intent to distribute those drugs, had a prescription for them. In a one-sided ruling without any say from Young, the Circuit Court granted the State’s request and excluded the prescriptions. The court ruled that the prescriptions were not admissible hearsay evidence. Young was convicted by a jury, and he appealed.

Before the Court of Special Appeals, Young argued, and the court agreed, that the prescriptions “when properly authenticated” were not hearsay evidence and that they were part of a valid statutory defense against Young’s charges. The court reversed all of his convictions, except for the heroin charges since a valid prescription is not a defense to them. The Court of Appeals agreed to hear the appeal. 

In Maryland, hearsay is defined as a “statement, other than one made by the declarant while testifying at the trial or hearing [i.e., an out-of-court statement], offered in evidence to prove the truth of the matter asserted.” Md. Rule 5-801(c). Generally, hearsay is not admissible into evidence to prove the matter asserted. 

However, under the ‘‘Verbal Acts Doctrine,” verbal acts are non-hearsay when introduced as an element of a claim or defense. The issue the Court of Appeals had to decide was whether a prescription qualified as a “verbal act” introduced as an element of a defense. 

Young was charged under CR§ 5-601(a)(1), which criminalizes possession of a controlled dangerous substance, “unless obtained directly or by prescription or order from an authorized provider.” The State argued that the prescription had to be for a verified medical problem, but the Court rejected that interpretation. The statute does not require that, the Court said. Thus, Young’s defense that he had prescriptions for most of the drugs was a valid defense that did not bar them under the hearsay rule. 

The Court analogized a prescription to a form or “contract” to purchase the drugs (either legally or illegally). Since a contract can be admitted as a verbal act “demonstrating something,” a prescription can do the same and can be an element of a valid defense. Thus, the Court of Appeals held that the prescriptions Young intended to enter as a defense are not barred under the hearsay rule 

Accordingly, the Court affirmed the judgment of the Court of Special Appeals. See: State v. Young, 198 A.3d 806 (Md. 2018). 

Writer’s note: Other courts have held the same, including the D.C. Circuit and the Texas Court of Criminal Appeals. The question in those courts was also not whether the prescriptions were medically necessary but whether the drugs were obtained with a prescription. The validity of the prescription would be a fact for the jury to determine. 

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