Lead Opinion
delivered the opinion of the Court. Cole, J., dissents and filed a dissenting opinion at page 220 infra.
Pursuant to Maryland Code (1974), § 12-601 of the Courts and Judicial Proceedings Article, the United States District Court for the District of Maryland has certified two questions for resolution by this Court: First, whether a release in which a defendant accused of committing the crime of shoplifting has discharged the complaining party from all civil liability is void as a matter of public policy because it was executed in consideration of a nolle prosequi entered by the State’s Attorney. Secondly, if such a release is not void as against public policy, do the circumstances under which it was executed constitute duress as a matter of law? We hold that under the facts of this case, the release was neither in contravention of public policy nor the product of duress.
The episode which spawned this dispute occurred on August 4,1975, when a security guard employed by appellant at its supermarket in Glen Burhie arrested appellee who was then shopping for groceries in the company of her two little girls. According to the employee, he had observed appellee place a package of luncheon meat in her shoulder bag before proceeding through the checkout line and then leave the store without paying for the item. He further stated that on being confronted, appellee returned to the interior of the store, removed the package from her purse and placed it on a shelf. She allegedly offered to pay for the merchandise, valued at $2.49, after the special police officer placed her under arrest. At all times appellee denied committing the offense, claiming instead that she had returned the package of meat to a shelf in the canned vegetable aisle after deciding not to buy it, and only then moved toward the checkout line. She subsequently reentered the store at the request of the officer solely for the purpose of returning the merchandise to its proper location in the meat cooler, but was placed under arrest before she could do so.
On May 25, 1976, the date on which the criminal case was to be tried, appellee executed the. release in question and the State’s Attorney entered the nolle prosequi in open court. Several weeks later, appellee brought a diversity action against appellant in the federal court, seeking damages for false imprisonment, malicious prosecution and slander. Appellant responded with a motion for summary judgment founded upon the release executed by appellee. The resulting dispute as to the validity of the release eventuated in this certification proceeding.
We recognize at the outset that virtually all agreements by a prosecuting attorney to enter a nolle prosequi in a criminal case are affected by considerations of public policy. This is particularly the case where it appears that such action is taken by the prosecutor as part of a bargain that has the effect of resulting in a private gain. The rule traditionally followed in this country is that bargains which tend to stifle criminal prosecution, whether by suppressing investigation of crime or by deterring citizens from their public duty to assist in the detection or punishment of crime, are void as against public policy. 14 S. Williston, A Treatise on the Law of Contracts § 1718 (3d ed. 1972); 6A A. Corbin, Contracts § 1421 (1962). Since public policy dictates that violations of the criminal laws be duly prosecuted, agreements to refrain from instituting criminal prosecutions are deemed inimical to the impartial administration of justice.
The foregoing principles were recognized long ago by this Court in Wildey v. Collier,
Similarly in Schirm v. Wieman,
“[I]t is of public interest and in accordance with public policy that the laws for the protection of property shall be effective, in order that the offenders may be promptly apprehended and convicted. Therefore all proposed agreements made with the thief or with anyone, by which the apprehension of the criminal, his trial or conviction may be prevented or obstructed, are contrary to public policy and absolutely void.”
Inasmuch as the release in dispute here was executed in reliance upon the State’s Attorney’s promise to enter a nolle prosequi on the shoplifting charge, an argument might be made that the public policy against contracts which obstruct criminal prosecutions ought to bar enforcement of the compromise agreement in the present case. In our opinion, however, the general rule does not govern the outcome of this case for reasons that follow.
No reported decision in Maryland or elsewhere has come to our attention in which an agreement for the entry of a nolle prosequi under circumstances similar to those present here has been challenged on. grounds of public policy. This case, for example, is unlike those iix which an agreement has been struck down where a private party — typically the civilian complainant — has agreed to refrain from initiating or pressing criminal charges. In Wilson v. United States Lines,
In the instant case, however, we are faced with an agreement between the criminal defendant and the prosecuting attorney, who, having correctly determined that there was probable cause for bringing the charge, elected in good faith to exercise his discretion by entering a nolle prosequi in exchange for the defendant’s release of the complainant from all civil liability. Particularly significant in this respect is the absence of any evidence that appellant participated in the decision, directly or indirectly. On the contrary, the record reflects only that the State’s Attorney acted for himself in conducting the negotiations with counsel for appellee.
Clearly, then, this is not a case where an alleged victim of a crime attempts to apply the leverage of a criminal prosecution — supported by probable cause or not — to his own advantage, either by extracting some form of compensation from the accused or by securing a release from civil liability. Thus, the very purpose which lies at the core of the public policy rule — to prevent perversion of the
Furthermore, since it was the State’s Attorney himself who entered into the agreement with the accused, this case is distinguishable from-those decisions involving agreements to influence or solicit public officials. E.g., Wildey v. Collier, supra,
Critical to the distinction between agreements which are made at the instance of a complaining witness and those, like the release in this case, which are initiated by a prosecuting attorney, is the broad discretionary role played in Maryland by the State’s Attorney, whose powers are nowhere specifically enumerated or defined. Murphy v. Yates,
“In such prosecutions of persons accused of crime, [the State’s Attorney] must exercise a sound discretion to distinguish between the guilty and the innocent. He must be trusted with broad official discretion to institute and prosecute criminal causes, subject generally to judicial control. The office is one not purely ministerial, but involves the exercise of learning and discretion.... As a general rule, whether the State’s Attorney does or does not institute a particular prosecution is a matter which rests in his discretion.” Brack v. Wells,184 Md. 86 , 90,40 A. 2d 319 (1944) (citation omitted).
Accord, State’s Atty v. City of Balto.,
Embraced within the broad discretion vested in the State’s Attorney is the decision whether or not to enter a nolle prosequi in a criminal case. Brady v. State,
In his affidavit contained in the record before us, the State’s Attorney, after succinctly noting the observations made by the store detective, furnished two reasons for agreeing to appellee’s request that a nolle prosequi be entered: “Because of the very insignificant value of the item alleged to have been shoplifted and assurance that the Defendant had no prior criminal record.” In conditioning his action upon a release of appellant from any potential civil action, he was observing his “established policy” in cases where, as here, there was sufficient probable cause for the issuance of the original
Although public policy dictates that the State’s Attorney duly prosecute violations of the criminal law, Schirm v. Wieman, supra,
Conversely, the State’s Attorney should be free to consider the plight of the first time offender in minor criminal cases
Since the arguments advanced by appellee against implementation of the disputed compromise arrangement do not “clearly and unequivocally outweigh” the important considerations militating in favor of enforcement, we hold that under the facts of this case, the release from civil liability executed by appellee was not void as a matter of public policy. Maryland-National Capital Park and Planning Commission et al. v. Washington National Arena,
(2)
Appellee urges us to hold that the release was executed under such circumstances as to constitute duress as a matter of law. We do not agree. An early test applied by this Court to determine whether a written instrument had been signed under duress was whether execution of the document had been “induced by harshness and threats, and the exercise of an unwarrantable authority, so excessive as to subjugate and control the freedom of [the signatory’s] will.” Central Bank v. Copeland,
“(a) [A]ny wrongful act of one person that compels a manifestation of apparent assent by another to a transaction without his volition, or
“(b) [A]ny wrongful threat of one person by words or other conduct that induces another to enter into a transaction under the influence of such fear as precludes him from exercising free will and judgment, if the threat was intended or should reasonably have been expected to operate as an inducement.”
Thus, under this test, duress is essentially composed of two elements:
“(1) A wrongful act or threat by the opposite party to the transaction or by a third party of which the opposite party is aware and takes advantage, and (2) a state of mind in which the complaining party was overwhelmed by fear and precluded from using free will or judgment.” Plechner v. Widener College, Inc.,418 F. Supp. 1282 , 1294 (E.D. Pa. 1976); see generally D. Dobbs, Handbook on the Law of Remedies § 10.2 (1973).
With respect to the first element, the acts or threats must be wrongful. Restatement of Contracts § 492, Comment g. An act, whether it be performed or threatened, may be wrongful even though not unlawful. Eckstein v. Eckstein,
Courts, however, have traditionally placed less emphasis on the wrongfulness element than on the effect of the wrongful act or threat'upon the person claiming to have been thereby coerced. “[T]he controlling factor is the condition, at the time,. of the mind of the person subjected to the alleged coercive measures, rather than the means by which the given state of mind was induced, and thus the test is essentially subjective.” McBride v. Atlantic City,
Under the most recent formulation of the American Law Institute, however, there has been a marked shift in emphasis from the subjective effect of a threat to the nature of the threat itself.
Regardless of which definition is applied, none of the elements constituting duress is established as a matter of law on the record before us. Clearly there was nothing in the institution of the criminal prosecution itself that would be suggestive of unlawful or even wrongful conduct. Given the
Furthermore, whatever the effect of this unfortunate experience on appellee, we cannot say as a matter of law on this record that the not unjustifiable fear of a possible conviction, whether prompted by the prosecutor’s actions or not, left her in such a state of mind as to preclude the exercise of her free will or judgment in signing the release. A fact which cannot be ignored in this regard is the lapse of almost four months between the day the State’s Attorney first disclosed his offer to enter a nolle prosequi in return for the civil release and appellee’s appearance.in court — the occasion on which she finally signed the compromise agreement.
We hold only, then, that the release was not the product of duress as a matter of law.
Questions of law answered as herein set forth; costs to be paid by appellee.
Notes
. Appellee’s version of the events leading to her arrest are contained in an .affidavit filed by her in the federal court and which now constitutes an appendix to her brief in this Court. Because the affidavit was filed belatedly
. This same public policy is embodied in the related common law crimes of obstructing justice and compounding an offense. Not only was obstruction of justice an indictable offense at common law, Garland v. State,
. Appellee argues here that the expressed willingness of the State’s Attorney to enter the nolle prosequi without execution of a civil release, if appellant would not object, constituted a delegation of prosecutorial authority and thus made' appellant a party to the agreement. The fact is, however, that appellant neither vetoed nor accepted the arrangement between the State’s Attorney and appellee; it simply never communicated with either of the parties. Had it done so, we might conceivably have been faced with an altogether different case.
. In support of its position, the dissent relies almost exclusively on the three “police cases” cited in the text accompanying this footnote. It matters not, in the dissent’s view, that the beneficiaries of the bargained-for releases in each of those cases were police officers as opposed to private complainants. Thus, the dissent has unfortunately failed to peroeive a most' crucial distinction between these cases and the matter at hand. ‘
A police officer and a prosecuting attorney are both agents of the state. It is precisely this commonality of interest which casts a taint of illegality upon any agreement with an accused by which one state agent, the prosecutor, seeks to bestow a benefit upon another state agent, the police officer, in the form of a release of the latter from civil liability for torts allegedly committed against the accused. In such cases there is an extraordinarily high probability that the prosecutor’s decision not to proceed to trial will be motivated by improper considerations.
. Effective July 1, 1977, former Rule 711 was supplanted by Rule 782, which now requires that the State’s Attorney also include within the record of the criminal case a statement of reasons for entering the nolle prosequi.
. Even given appellee’s own favorable version of the critical events immediately preceding her arrest, the State’s Attorney was clearly in possession of probable cause if he chose to accept the store detective’s account. Absent any reason why he should not have done so, such as an indication that the complaining witness’s credibility was in doubt, a. prosecutor would certainly not have been unjustified in accepting his statement as the basis for his official actions. Were he to pursue any other policy, it is doubtful that many prosecutions would survive the initial determination which a State’s Attorney must make in virtually every case.
We note that in relevant part. Article 27, § 551A, pursuant to which appellee was charged here, makes it a crime: “(1) To remove any goods, wares or merchandise from the immediate place of display or from any other place within the establishment with the intent to appropriate the same to the use of the person so taking, or to deprive the owner of the use, or value, or any part thereof." The account of the incident furnished by the store detective, if accepted by the trier of fact in a criminal case, clearly would have supported a conviction of shoplifting under the statute.
. Restatement (Second) of Contracts §§ 316-17 (Tent. Draft No. 12,1977) now defines duress in this manner:
Ҥ 316 Where conduct that appears to be a manifestation of assent by a party who does not intend to engage in that conduct is physically compelled by duress, the conduct is not effective as a manifestation of assent.
Ҥ 317
“(1) ... [W]here a party’s manifestation of assent is induced by an improper threat that leaves him no reasonable alternative, the contract is voidable by that party.” (emphasis added).
. Under Maryland Code (1974), § 12-601 of the Courts and Judicial Proceedings Article, it is our function to answer “questions of law certified” to this Court. Contrary to the impression created by the dissent, therefore, we do not evaluate or weigh the evidence, but instead accept the statement of facts submitted by the certifying court. To “wonder,” for example, “why the polygraph evidence did not cause the State’s Attorney to reconsider the advisability of pursuing a prosecution or why, indeed, he denied the defendant the use of this evidence knowing full well the stimulus such denial would have in persuading a defendant to execute a release.”
Dissenting Opinion
dissenting
I do not agree with the majority’s answers to the two questions certified to this Court by the United States District Court for the District of Maryland. I, therefore, respectfully dissent.
I
The majority concedes that as a general rule agreements that stifle criminal prosecutions are void as against public policy because they tend to pervert the administration of justice. See Schirm v. Wieman,
I ask the questions: Of what advantage is it to the State’s Attorney that the defendant release Food Fair? What better and more persuasive agent could Food Fair have than the State’s Attorney to procure a release? Why should Food Fair, a powerful corporation with batteries of lawyers, negotiate with the defendant contrary to the law? One is required to be completely naive to accept the proposition that Food Fair was oblivious to- the status and progress of this criminal proceeding. The majority, however, says the State’s Attorney, whose powers are nowhere specifically defined, has wide discretion to decide whether or not to enter a nolle prosequi in a criminal case limited only by what is in accord with the fair and impartial administration of justice, untainted by any contaminating influence. The reasons given in this case for entering the nolle prosequi were that the item allegedly stolen
Although there is no Maryland decision directly on point, three decisions from other jurisdictions support this position; no reported decision in Maryland or elsewhere has come to my attention which refutes it.
In MacDonald v. Musick,
It is no part of the proper duty of a prosecutor to use a criminal prosecution to forestall a civil proceeding by the defendant against policemen, even where the civil case arises from the events that are also the basis for the criminal charge. We do not mean that the prosecutor cannot present such a criminal charge. What he cannot do is condition a voluntary dismissal of a charge upon a stipulation by the defendant that is designed to forestall the latter’s civil case. [425 F. 2d 373 at 375].
Similarly, in Boyd v. Adams,
‘In sum, we find these release agreements odious and distasteful, to be enforced only in very rare circumstances. Among other requirements, there must be a knowing and intelligent waiver by the signer of the right to pursue further actions at law, and the person[s] released from liability have the burden of proving by clear and convincing proof, that no coercion or duress- of any sort was exerted upon the signer.’ [513 F. 2d 83 at 88].
Of particular interest is the memorandum by the Chief of the Criminal Division issued to Assistant State’s Attorneys, Boyd, supra, footnote 6, page 89:
An Assistant State’s Attorney is not permitted to condition his official action in a criminal case as contingent upon the action of any person in a civil proceeding (e.g. a nolle in return for a release of a civil liability). Your official action must be based only upon the merits of the criminal case before you. To do otherwise could violate Chapter 38, Section 32-1, Illinois Revised Statutes (Compromising a Crime) and would be of doubtful validity.
The majority contends that these cases are distinguishable merely because “the entry of the nolle prosequi was conditioned upon a civil release of a police officer or the state itself.” However, Gray v. City of Galesburg,
The contract for release, if viewed in this light, becomes a trade-off of a public interest for a private interest. We recognize that there may be an indirect public interest in protecting the city’s employees from civil liability incurred while in the city’s employ. The city will naturally want to support its officers to insure that able men will bé attracted to, and remain with, the police force. However, if the officers’ conduct was tortious, the public has no interest in denying their victims redress. If; on the other hand, the officers acted legally, they are afforded the full protection of the law and. need not resort to the release for vindication. [247 N.W.2d 338 at 340].
Gray, supra went further and stated an additional ground for denying validity to such agreements — that grievances against police officers should be publicly aired because “a desire on the part of the prosecuting authority to extract police officers from possible liability offers an undeniable temptation to concoct or exaggerate the charges against the defendant to enhance his bargaining position.”
Agreements like the one in the present case are repugnant to public policy because they tend to deprive the public of their right to vigorous enforcement of the laws for the predominant purpose of benefiting individual persons. The majority opinion acknowledges that this bargain has resulted in a gain to Food Fair, but choosing to disregard the foregoing cases, comes to the conclusion that because we deal here with an agreement between a criminal defendant and the prosecuting attorney public policy is not contravened. This position is buttressed with the assumption that the State’s Attorney acted in good faith while exercising his official duty and the evidence that Food Fair did not participate in the decision of the State’s Attorney.
The problem with allowing the prosecutor to bargain for a civil release in a criminal case is that it raises the suspicion that the decision to prosecute has been tainted. Unlike the plea bargain situation, which finds its justification in the fact that it is created in the public interest — and is generally subject to court approval — a bargain for a civil release in a criminal case can only be justified if it is: (1) within the purview of the State’s Attorney’s authority and (2) entered into in good faith.
While I recognize the broad discretionary powers the State’s Attorney has with respect to the entry of a nolle prosequi, State v. Hunter,
The standards by which to appraise the conduct of a State’s Attorney are established by Maryland law (footnote omitted). It is the duty of the prosecutor, as of every lawyer, to represent a client zealously within the bounds of the law. ABA, Code, Canon 7, Ethical Consideration 7-1. Because the power of the prosecutor to institute criminal prosecutions vests in him an authority in the administration of criminal*225 justice at least as sweeping as, and perhaps greater than, the authority of the judge who presides in criminal cases (citation omitted), the responsibility of a public prosecutor differs from that of the usual advocate. His duty is to seek justice, not merely to convict. Powell v. State,16 Md. App. 684 , 694-95, n. 1,299 A. 2d 454 , 459 n. 1 (1973) (subsequent citations omitted). His obligation is to protect not only the public interest but the innocent as well and to safeguard the rights guaranteed to all persons, including those who may be guilty.
Because a prosecutor represents the State, he must, as must a judge, not only be disinterested and impartial in the performance of his duties but also appear to be so (footnote omitted) (citations omitted). In order to assure fair and equal treatment to all, a prosecutor must use restraint in the discretionary exercise of governmental powers, such as in the selection of cases to prosecute. ABA, Code, Ethical Consideration 7-13 (subsequent citations omitted). He, like a government attorney who possesses discretionary powers relative to civil litigation, should not use his position, or the economic power of the government, to harass parties or to bring about unjust settlements or results. See ABA, Code, Ethical Consideration 7-14. Finally, like all lawyers, he is forbidden to present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter. ABA, Code, Disciplinary Rule 7-105; see State v. Detroit Motors,163 A. 2d 227 , 230-31 (N.J. Super. 1960). (Emphasis supplied)
These same ethical considerations were relied upon in MacDonald, supra,
In the present case the State’s Attorney had a duty to decide whether or not to nolle prosse without considering the defendant’s possible course of conduct with respect to a future civil claim. I would adhere to the principle that “when a state’s attorney determines that the public interest requires prosecution, it is his duty to zealously seek to convict those guilty of crime.” The majority’s concern for the public interest in encouraging the legitimate victims of crime to freely report such offenses is commendable. On the other hand, however, the State’s Attorney should not be in a position to shield the alleged victim of crime from civil liability for conduct which may have been tortious. Certainly the public has no interest in denying redress to innocent individuals who have been wrongly accused of crime. My answer to the first question would be that it is against public policy for the State’s Attorney to require release in return for a nolle prosse.
II
The second question: “If such a release is not void as against public policy, do the circumstances under which it was executed constitute duress as a matter of law?” should be answered in the affirmative.
Two factors stand out as determinative of this question: first, time from arrest to prosecution and second, the failure of the State’s Attorney to keep his word regarding the admissibility of the results of the polygraph tests. The defendant protested her innocence from the outset and expressed her willingness to go to any lengths to prove she was telling the truth. On August 4, 1975, when approached
She offered to submit to a polygraph test and pay the costs but the State’s Attorney demanded that the Maryland State Police conduct the examination. When the judge in District Court on January 9,1976,refused to postpone the case so she could take the polygraph test, she prayed a jury trial so that the test or examination could be conducted. Not only did she take one test but two tests and in each the result indicated that she was truthful. However, the State’s Attorney reneged on his agreement and told her he would not agree to have the results admitted into evidence. Despite the defendant’s attorney’s effort, the State’s Attorney refused to keep the bargain. Thus, on May 25,1976, nine months after her arrest, the morning of trial in the Circuit Court, the defendant was' forced to sign the release rather than subject herself to possible conviction and punishment.
Is there any question that the State’s Attorney demonstrated bad faith in reneging on his promise to admit the polygraph results? It seems clear that this evidence would have been damaging to the State’s case on trial and would have substantiated defendant’s assertion of her innocence. Contrary to the majority claim that “missing here are those efforts to exploit or oppress ... or to misuse the power of the prosecutor’s office ... which normally characterize this species of duress,” the State’s Attorney stripped the defendant of exculpatory evidence and then used the threat of prosecution to extract a civil release. The defendant, a mother of two children, never having been arrested before, having the pressure of criminal prosecution hanging over her for nine months, was coerced into executing the release.
The majority is satisfied that, “[gjiven the existence of probable cause, the State’s Attorney was merely complying with his statutory mandate” in going forward with the prosecution. Nevertheless, while it is apparent from the
What the State’s Attorney did was inherently coercive and amounted to duress as a matter of law.