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Tu v. Maryland10/25/1994
the majority been able to fit this case within the "substantially different" evidence exception. Hence, the circuit court's reconsideration of the admissibility of the subject evidence was error, being violative of the holding in Tu I.
The majority asserts that "a rule that would preclude correction on remand of inaccuracies in the facts at the first trial, unless the appellate court expressly permitted that to be done, is unworkable from the appellate standpoint." Majority op. at 18. On the contrary, what is unworkable is a rule that would allow alleged factual inaccuracies to be corrected simply because the moving party "made a mistake." The potential for the use of fraud in an effort to reverse an appellate mandate is tremendous. That is the effect of the majority's holding. It will open up a Pandora's box of increased litigation as to the scope of remand. Litigants will be encouraged to scan appellate opinions for new legal theories to be raised on remand and those so inclined will not be above "supplying" or manufacturing the facts to support them.
Of course, a litigant, on remand, may bolster his or her case. It is true that witnesses may be more comfortable and may make better witnesses the second time around; their recollections may be more lucid. As indicated, new evidence may also become available. On the other hand, a litigant should not be allowed to use substantially the same evidence, in substantially the same way, when the effect and purpose is to circumvent an appellate decision. Therefore, the circuit court erroneously admitted the custodial items into evidence. I would reverse the judgment of the Court of Special Appeals.
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