Church v. State: Resolving One Problem but Raising Another - Addressing the Use of the Surveillance Location Privilege and the Limited Remand

David J. Martin

In Church v. State, the Maryland Court of Appeals considered whether a surveillance location privilege exists that allows undercover police officers to refuse to disclose the location of their observation posts at trial. The court held that such a privilege exists, but that before it can be applied the State must demonstrate that it has a legitimate interest in not disclosing the location that outweighs the defendant's interest in freely cross-examining his or her accusers. The court's decision to place the burden of proving the privilege's applicability on the prosecution adequately protects the defendant's Sixth Amendment right to confront his or her accusers. But while the court correctly concluded that defense counsel preserved the issue for appeal, the court erred in issuing a limited remand that allowed the prosecution to satisfy its burden of proof after it failed to do so at trial. Rather, the court should have issued a new trial because the error violated the defendant's Sixth Amendment rights under the Confrontation Clause. The court's decision to order a limited remand under these circumstances demonstrates that clearer guidelines are needed to control the use of that remedy.