Last reviewed and edited June 29, 2018
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Last reviewed and edited June 29, 2018
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MAINE RULES OF EVIDENCE
With Advisory Notes
The Maine Rules of Evidence, the Maine Restyling Notes, the Federal Advisory
and Restyling Committee Notes, and Advisory Notes subsequent to the
Restyling appear in black type; Advisory Notes to the former Maine Rules of
Evidence appear in red type.
[Effective January 1, 2015, the Maine Rules of Evidence have been restyled
and completely replace the Maine Rules of Evidence in effect prior to
January 1, 2015. Included below are a general note regarding the restyling, a
table of the new Rules, the restyled Maine Rules of Evidence, Maine Restyling
Notes, Federal Advisory and Restyling Committee Notes, and Advisory Notes to
the former Maine Rules of Evidence. Footnotes and bracketed notations have
been added to some of the Advisory Notes to the former Maine Rules of Evidence
to better identify changes and updates over the years and indicate distinctions
from the restyled Rules. When statutes referenced in Advisory Notes to the
former Rules have been repealed, that fact is noted, though replacement
statutes, if any, are often not indicated, as the replacement statute, if any, may
have a different purpose or context than the repealed statute. The footnotes
provide information that is current as of the effective date of the restyled rules:
January 1, 2015. Changes subsequent to January 1, 2015 will be addressed in
Advisory Notes for the particular rule that is changed.]
Advisory Committee on the Maine Rules of Evidence
Note: Proposed Restyled Rules of Evidence
The Maine Advisory Committee on Rules of Evidence proposed that the
Maine Rules of Evidence be restyled as set forth below. The restyling project,
which has taken place over the last two years, follows a similar project by the
Federal Advisory Committee on Rules of Evidence to restyle the Federal
counterparts to our evidence rules and similar projects for the Federal Rules
of Civil and Criminal Procedure. The purpose of the restyling is to make the
rules clearer and easier of application by adoption of simple and consistent
language, style, and format conventions and elimination of ambiguous or
1
obsolete terminology. The recommendations for restyling are intended to
preserve the substance of the respective rules without change, but present the
respective Maine rules in the language and format consistent with their
restyled counterparts in the Federal Rules of Evidence. Each rule is
accompanied by a “Maine Restyling Note” and many also have the Federal
Advisory Committee note on the Federal restyling.
In reviewing the work of the Maine Advisory Committee on Rules of
Evidence in preparing to publish the Restyled Rules of Evidence, the Court has
made some minor clarifications to improve language, and, as the Advisory
Committee invited the court to consider, the Court has elected to continue the
existing exemption of proceedings regarding probation, parole, administrative
release, and deferred dispositions from the requirements of the Maine Rules
of Evidence. Those proceedings remain subject to fundamental due process
requirements. See State v. James, 2002 ME 86, ¶¶ 13-15, 797 A.2d 732.
******
The Biennial Report to the Court from Professor Deirdre Smith, Chair of
the Advisory Committee on the Maine Rules of Evidence, dated
October 14, 2014, included the following note regarding the Restyling Project:
Restyling Project
The Committee’s primary project during the past two years was the
complete redrafting of the Maine Rules of Evidence (MREs) to conform to the
restyling format incorporated into the Federal Rules of Evidence in 2011. As I
explained in the memorandum I submitted to the Court this past summer with
the Committee’s complete set of proposed restyled rules, the entire
Committee took part in this project. The Committee’s Consultant, Prof. Peter
Murray, assisted by our excellent Student Liaisons, Margaret Machiaek
(2012-2013) and Kevin Decker (2013-2014), took the lead in drafting restyled
versions of each rule. We worked through the proposed restyled rules in three
“batches,” each of which was carefully reviewed by a subcommittee assigned
to that “batch.” Our Judicial Liaison, Justice Donald Alexander, was closely
involved with each step of the project and attended most of the subcommittee
meetings. Once the subcommittee completed its review and revision of the
proposed rules, that batch was distributed to the full Committee for review
and discussion. We submitted the complete set of proposed rules to the Court
2
on June 17, 2014. The Court made some minor revisions to the proposed
rules and posted them for public comment. No comments were received other
than some very helpful ones by Matthew Pollack, Clerk of the Maine Supreme
Judicial Court. My understanding is that those comments have been
incorporated, and the rules are now ready for final approval by the Court.
Although this was a lengthy and labor-intensive process, I think that it was
one well worth undertaking. The revised rules are written with more
contemporary language and are better formatted and therefore easier to learn
and to use.
3
MAINE RULES OF EVIDENCE
TABLE OF RULES
ARTICLE I. GENERAL PROVISIONS
RULE 101.
APPLICABILITY; DEFINITIONS; TITLE
RULE 102.
PURPOSE.
RULE 103.
RULINGS ON EVIDENCE
RULE 104.
PRELIMINARY QUESTIONS.
RULE 105.
LIMITING EVIDENCE THAT IS NOT ADMISSIBLE AGAINST
OTHER PARTIES OR FOR OTHER PURPOSES
RULE 106.
REMAINDER OF OR RELATED WRITINGS OR RECORDED
STATEMENTS
ARTICLE II. JUDICIAL NOTICE
RULE 201.
JUDICIAL NOTICE OF ADJUDICATIVE FACTS
ARTICLE III. PRESUMPTIONS
RULE 301.
PRESUMPTIONS IN CIVIL CASES GENERALLY
RULE 302.
PRESUMPTION OF LEGITIMACY
RULE 303.
PRESUMPTIONS IN CRIMINAL CASES
ARTICLE IV. RELEVANCE AND ITS LIMITS
RULE 401.
TEST FOR RELEVANT EVIDENCE
RULE 402.
GENERAL ADMISSIBILITY OF RELEVANT EVIDENCE
RULE 403.
EXCLUDING RELEVANT EVIDENCE FOR PREJUDICE,
CONFUSION, WASTE OF TIME, OR OTHER REASONS
4
RULE 404.
CHARACTER EVIDENCE; CRIMES OR OTHER ACTS
RULE 405.
METHODS OF PROVING CHARACTER
RULE 406.
HABIT; ROUTINE PRACTICE
RULE 407.
SUBSEQUENT REMEDIAL MEASURES; NOTIFICATION OF
DEFECT
RULE 408.
COMPROMISE OFFERS AND NEGOTIATIONS
RULE 409.
OFFERS TO PAY MEDICAL AND SIMILAR EXPENSES
RULE 410.
PLEAS, PLEA DISCUSSIONS, AND RELATED STATEMENTS
RULE 411.
LIABILITY INSURANCE.
RULE 412.
SEX-OFFENSE CASES: THE VICTIM’S SEXUAL BEHAVIOR OR
PREDISPOSITION.
RULE 413.
PROTECTION OF PRIVACY IN COURT PROCEEDINGS.
ARTICLE V. PRIVILEGES
RULE 501.
PRIVILEGES RECOGNIZED ONLY AS PROVIDED BY LAW
RULE 502.
LAWYER-CLIENT PRIVILEGE
RULE 503.
HEALTH
CARE
PROFESSIONAL–,
MENTAL
HEALTH
PROFESSIONAL–,
AND
LICENSED
COUNSELING
PROFESSIONAL-PATIENT PRIVILEGE
RULE 504.
SPOUSAL PRIVILEGE
RULE 505.
RELIGIOUS PRIVILEGE
RULE 506.
POLITICAL VOTE
5
RULE 507.
TRADE SECRETS
RULE 508.
SECRETS OF STATE AND OTHER OFFICIAL INFORMATION;
GOVERNMENTAL PRIVILEGES
RULE 509.
IDENTITY OF INFORMANT
RULE 510.
WAIVER OF PRIVILEGE BY VOLUNTARY DISCLOSURE
RULE 511.
PRIVILEGED MATTER DISCLOSED UNDER COMPULSION OR
WITHOUT OPPORTUNITY TO CLAIM THE PRIVILEGE
RULE 512.
COMMENT UPON OR INFERENCE FROM CLAIM OF PRIVILEGE
IN CRIMINAL CASES; INSTRUCTION
RULE 513.
CLAIM OF PRIVILEGE IN CIVIL CASES
RULE 514.
MEDIATOR’S PRIVILEGE
ARTICLE VI. WITNESSES
RULE 601.
COMPETENCY TO TESTIFY IN GENERAL
RULE 602.
NEED FOR PERSONAL KNOWLEDGE
RULE 603.
OATH OR AFFIRMATION TO TESTIFY TRUTHFULLY
RULE 604.
INTERPRETERS
RULE 605.
JUDGE’S COMPETENCY AS A WITNESS
RULE 606.
JUROR’S COMPETENCY AS A WITNESS
RULE 607.
WHO MAY IMPEACH A WITNESS
RULE 608.
A WITNESS’S CHARACTER
UNTRUTHFULNESS
RULE 609.
IMPEACHMENT BY EVIDENCE OF A CRIMINAL CONVICTION
6
FOR
TRUTHFULNESS
OR
RULE 610.
RELIGIOUS BELIEFS OR OPINIONS
RULE 611.
MODE AND ORDER OF
PRESENTING EVIDENCE
RULE 612.
WRITING USED TO REFRESH A WITNESS’S MEMORY
RULE 613.
WITNESS’S PRIOR STATEMENTS
RULE 614.
COURT’S CALLING OR EXAMINING A WITNESS
RULE 615.
EXCLUDING WITNESSES
RULE 616.
ILLUSTRATIVE AIDS
EXAMINING WITNESSES
AND
ARTICLE VII. OPINIONS AND EXPERT TESTIMONY
RULE 701.
OPINION TESTIMONY BY LAY WITNESSES
RULE 702.
TESTIMONY BY EXPERT WITNESSES
RULE 703.
BASIS OF AN EXPERT’S OPINION TESTIMONY
RULE 704.
OPINION ON AN ULTIMATE ISSUE
RULE 705.
DISCLOSING THE FACTS OR DATA UNDERLYING AN EXPERT’S
OPINION
RULE 706.
COURT-APPOINTED EXPERT WITNESSES
ARTICLE VIII. HEARSAY
RULE 801.
DEFINITIONS THAT APPLY TO THIS ARTICLE; EXCLUSIONS
FROM HEARSAY
RULE 802.
THE RULE AGAINST HEARSAY
7
RULE 803.
EXCEPTIONS TO THE RULE AGAINST HEARSAY—REGARDLESS
OF WHETHER THE DECLARANT IS AVAILABLE AS A WITNESS
RULE 804.
EXCEPTIONS TO THE RULE AGAINST HEARSAY—WHEN THE
DECLARANT IS UNAVAILABLE AS A WITNESS
RULE 805.
HEARSAY WITHIN HEARSAY
RULE 806.
ATTACKING
CREDIBILITY
AND
SUPPORTING
THE
DECLARANT’S
ARTICLE IX. AUTHENTICATION AND IDENTIFICATION
RULE 901.
AUTHENTICATING OR IDENTIFYING EVIDENCE
RULE 902.
EVIDENCE THAT IS SELF-AUTHENTICATING
RULE 903.
SUBSCRIBING WITNESS’ TESTIMONY UNNECESSARY
ARTICLE X.
CONTENTS
OF
PHOTOGRAPHS
RULE 1001.
DEFINITIONS THAT APPLY TO THIS ARTICLE
RULE 1002.
REQUIREMENT OF THE ORIGINAL
RULE 1003.
RESERVED
RULE 1004.
ADMISSIBILITY OF OTHER EVIDENCE OF CONTENT
RULE 1005.
COPIES OF PUBLIC RECORDS TO PROVE CONTENT
RULE 1006.
SUMMARIES TO PROVE CONTENT
RULE 1007.
TESTIMONY OR STATEMENT OF A PARTY TO PROVE
CONTENT
RULE 1008.
FUNCTIONS OF COURT AND JURY
WRITINGS,
8
RECORDINGS,
AND
ARTICLE XI. MISCELLANEOUS RULES
9
MAINE RULES OF EVIDENCE
With Advisory Notes
The Maine Rules of Evidence, the Maine Restyling Notes, and the Federal
Advisory and Restyling Committee Notes appear in black type; Advisory Notes
to the former Maine Rules of Evidence appear in red type.
ARTICLE I. GENERAL PROVISIONS
RULE 101. APPLICABILITY; DEFINITIONS; TITLE
(a)
(b)
Rules applicable. Except as otherwise provided in (b), these rules
apply to all actions and proceedings before:
(1)
The Supreme Judicial Court when not sitting as the Law Court;
(2)
The Superior Court;
(3)
The District Court; and
(4)
The Probate Court.
Rules inapplicable. These rules—except for those governing
privilege—do not apply to the following:
(1)
The court’s determination under Rule 104(a) of a preliminary
question of fact governing admissibility;
(2)
Grand jury proceedings;
(3)
Juvenile proceedings under the Maine Juvenile Code other than
(4)
(A)
Probable cause determinations in bindover hearings; or
(B)
Adjudicatory hearings;
Statutory small claims in the District Court;
10
(5)
Proceedings on applications for warrants;
(6)
Sentencing proceedings;
(7)
Proceedings regarding revocation, modification, or termination of
probation, parole, administrative release or deferred disposition;
(8)
Bail proceedings;
(9)
Proceedings to determine probable cause;
(10) Contempt proceedings in which the court may act summarily; and
(11) Proceedings exempt from applicability of the Rules of Evidence by
statute.
(c)
Definitions. In these rules:
(1)
“Civil case” means a civil action or proceeding;
(2)
“Criminal case” includes a criminal proceeding;
(3)
“Public office” includes a public agency;
(4)
“Record” includes a memorandum, report, or data compilation;
(5)
A “rule prescribed by the Supreme Judicial Court” means a rule
adopted by the Maine Supreme Judicial Court under statutory or
inherent authority; and
(6)
A reference to any kind of written material or any other medium
includes electronically stored information.
(d) Title. These rules may be known and cited as the Maine Rules of
Evidence.
11
Maine Restyling Note [November 2014]
The Maine Rules of Evidence Restyling Project follows a similar project
by the Federal Advisory Committee on Rules of Evidence to restyle the federal
counterparts to our evidence rules as well as similar projects for the Federal
Rules of Civil and Criminal Procedure. The purpose of the restyling is to make
the rules clearer and easier to apply by adoption of simple and consistent
language, style, and format conventions and elimination of ambiguous or
obsolete terminology. Where the Maine Rule of Evidence is substantially
identical in substance to the corresponding Federal Rule of Evidence, the
Advisory Committee recommends that the Court adopt language identical to
that in the Federal Rules, and we have included the Federal Advisory
Committee’s restyling note with the proposed amended Rule. Where a Maine
Rule departs in substance from the corresponding Federal Rule, we have
recommended revisions that follow the same restyling format as in the other
Rules, as described in “The Style Project” in the Federal Advisory Committee
Note to Rule 101.
The language of Maine Rule 101(c) closely tracks existing Federal Rule
101(b) in terms of the definitions (the proposed Maine restyling changes the
references to Maine references and adds a reference to “or inherent” to
“statutory authority” for rule-making). Otherwise, the proposed Maine Rule
101 differs significantly from the Federal Rule by setting forth, in sections (a)
and (b), a complete description of the applicability of the Rules to proceedings
in Maine courts. As part of the Restyling Project, the Advisory Committee
recommends that the Court consolidate all references to applicability in the
Rules, including those presently in Rules 104(a) and 1101, into one
comprehensive provision in Rule 101. The Committee recommends adding
references to deferred dispositions and administrative release in Rule
101(b)(7) as such dispositions are now common in criminal proceedings and
are sufficiently analogous to probation proceedings to warrant consistent
treatment. The Committee further recommends that the Court eliminate the
final sentence of current Maine Rule 104(a) and repeal Rule 1101 entirely as
part of this consolidation. Finally, the Committee has proposed that the
reference to the title of the Rules be moved from Rule 1102 to a new section
101(d), eliminating the need for Rule 1102 as well.
The restyled Rule does not make specific reference to hearings on
“motions to suppress evidence and the like,” which are referred to in current
12
Maine Rule 104(a) as not excepted from applicability of the Rules of Evidence.
By failing to include an express “exception to the exception” the Committee
does not intend to change Maine law to the effect that the Rules of Evidence
do apply to hearings in proceedings addressing the suppression of evidence.
Federal Advisory Committee Note
The language of Rule 101 has been amended, and definitions have been
added, as part of the general restyling of the Evidence Rules to make them
more easily understood and to make style and terminology consistent
throughout the rules. These changes are intended to be stylistic only. There is
no intent to change any result in any ruling on evidence admissibility.
The reference to electronically stored information is intended to track
the language of Fed. R. Civ. P. 34.
The Style Project
The Evidence Rules are the fourth set of national procedural rules to be
restyled. The restyled Rules of Appellate Procedure took effect in 1998. The
restyled Rules of Criminal Procedure took effect in 2002. The restyled Rules
of Civil Procedure took effect in 2007. The restyled Rules of Evidence apply
the same general drafting guidelines and principles used in restyling the
Appellate, Criminal, and Civil Rules.
1. General Guidelines.
Guidance in drafting, usage, and style was provided by Bryan Garner,
Guidelines for Drafting and Editing Court Rules, Administrative Office of the
United States Courts (1969) and Bryan Garner, Dictionary of Modern Legal
Usage (2d ed. 1995). See also Joseph Kimble, Guiding Principles for Restyling
the Civil Rules, in Preliminary Draft of Proposed Style Revision of the Federal
Rules of Civil Procedure, at page x (Feb. 2005) (available at
http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Prelim_draft_pro
posed_pt1.pdf); Joseph Kimble, Lessons in Drafting from the New Federal
Rules of Civil Procedure, 12 Scribes J. Legal Writing 25 (2008-2009). For
specific commentary on the Evidence restyling project, see Joseph Kimble,
Drafting Examples from the Proposed New Federal Rules of Evidence, 88 Mich.
13
B.J. 52 (Aug. 2009); 88 Mich. B.J. 46 (Sept. 2009); 88 Mich. B.J. 54 (Oct. 2009);
88 Mich. B.J. 50 (Nov. 2009).
2. Formatting Changes.
Many of the changes in the restyled Evidence Rules result from using
format to achieve clearer presentations. The rules are broken down into
constituent parts, using progressively indented subparagraphs with headings
and substituting vertical for horizontal lists. “Hanging indents” are used
throughout. These formatting changes make the structure of the rules graphic
and make the restyled rules easier to read and understand even when the
words are not changed. Rules 103, 404(b), 606(b), and 612 illustrate the
benefits of formatting changes.
3. Changes to Reduce Inconsistent, Ambiguous, Redundant, Repetitive, or
Archaic Words.
The restyled rules reduce the use of inconsistent terms that say the
same thing in different ways. Because different words are presumed to have
different meanings, such inconsistencies can result in confusion. The restyled
rules reduce inconsistencies by using the same words to express the same
meaning. For example, consistent expression is achieved by not switching
between “accused” and “defendant” or between “party opponent” and
“opposing party” or between the various formulations of civil and criminal
action/case/proceeding.
The restyled rules minimize the use of inherently ambiguous words.
For example, the word “shall” can mean “must,” “may,” or something else,
depending on context. The potential for confusion is exacerbated by the fact
the word “shall” is no longer generally used in spoken or clearly written
English. The restyled rules replace “shall” with “must,” “may,” or “should,”
depending on which one the context and established interpretation make
correct in each rule.
The restyled rules minimize the use of redundant “intensifiers.” These
are expressions that attempt to add emphasis, but instead state the obvious
and create negative implications for other rules. The absence of intensifiers in
the restyled rules does not change their substantive meaning. See, e.g., Rule
14
104(c) (omitting “in all cases”); Rule 602 (omitting “but need not”); Rule
611(b) (omitting “in the exercise of discretion”).
The restyled rules also remove words and concepts that are outdated or
redundant.
4. Rule Numbers.
The restyled rules keep the same numbers to minimize the effect on
research. Subdivisions have been rearranged within some rules to achieve
greater clarity and simplicity.
5. No Substantive Change.
The Committee made special efforts to reject any purported style
improvement that might result in a substantive change in the application of a
rule. The Committee considered a change to be “substantive” if any of the
following conditions were met:
a. Under the existing practice in any circuit, the change could lead
to a different result on a question of admissibility (e.g., a change that
requires a court to provide either a less or more stringent standard
in evaluating the admissibility of particular evidence);
b. Under the existing practice in any circuit, it could lead to a
change in the procedure by which an admissibility decision is made
(e.g., a change in the time in which an objection must be made, or a
change in whether a court must hold a hearing on an admissibility
question);
c. The change would restructure a rule in a way that would alter
the approach that courts and litigants have used to think about, and
argue about, questions of admissibility (e.g., merging Rules 104(a)
and 104(b) into a single subdivision); or
d. The amendment would change a “sacred phrase”—one that has
become so familiar in practice that to alter it would be unduly
disruptive to practice and expectations. Examples in the Evidence
Rules include “unfair prejudice” and “truth of the matter asserted.”
15
__________________________________________________________________
Advisers’ Note to Former M.R. Evid. 11011
(February 2, 1976)
Subdivision (a) makes these rules applicable to all actions and
proceedings in the named courts with the exceptions provided in (b). They do
not apply in terms to the Administrative Court, which came into being under
that name by P.L. 1973, c. 303. Previously the Administrative Code, 5 M.R.S.A.
§ 2301-52, had used the terms “Administrative Hearing Office” and “Hearing
Commissioner’’, which were changed to Administrative Court and
Administrative Court Judge. The purpose was to dignify the office with more
appropriate titles. The matter is not of great practical importance because
§ 2405 provides that “the rules of evidence as applied in the trial of civil cases
in the State shall be observed whenever practicable.’’ This would incorporate
these rules by reference. The permitted relaxation as to “facts not reasonably
susceptible of proof under these rules’’ seems reasonable for this type of
proceeding.2
Subdivision (b) lists the exceptions from the applicability other than
those with respect to privilege. Subsection (1) excludes determination of
preliminary questions of fact except as otherwise provided in Rule 104,3
which makes the rules applicable to hearings on motions to suppress evidence
and the like.
The former Advisers’ Note to Rule 101 is now irrelevant because the Rule it references has
been removed by the restyling, so its text is not included. The Advisers’ Notes to former Rule 1101
are now applicable to Rule 101, however, so the Advisers’ Notes to the former Rule 1101 have been
included at this point. Caution: the subsections referenced do not always match up to the newly
restyled subsections of Rule 101; some changes have been noted.
1
The Administrative Code referenced in the first paragraph was repealed and replaced by P.L.
1977, ch. 551 (effective July 1, 1978), creating the Maine Administrative Procedure Act, 5 M.R.S.
§§ 8001-11008 (2014). The standards of evidence to be applied in administrative proceedings are
addressed in 5 M.R.S. 9057 (2014). The Administrative Court was abolished and its functions
transferred to the District Court by P.L. 1999, ch. 547, § B-12 (effective March 15, 2001). See M.R.
Civ. P. 80G.
2
3 Rule 104(a).
16
Subsection (2) concerns proceedings before grand juries. This is in
accord with Maine law. State v. Douglas, 150 Me. 442, 114 A.2d 253 (1955).
Subsection (3)4 excludes various miscellaneous proceedings. It clarifies
but does not appear to change Maine law. The rules do not apply to
proceedings on probation or parole violations. The Supreme Court has held
that due process must be observed on hearings to determine whether a
condition of probation or parole has been violated. Gagnon v. Scarpelli, 411
U.S. 778, 93 S.Ct. 1756 (1973). Due process does not, however, mandate
observation of the rules of evidence. The same principles apply to
adjudications of juvenile delinquency.5
Subsection (4)6 excludes contempt proceedings in which the court may
act summarily. This power is confined to cases where the judge certifies that
he saw or heard the conduct constituting the contempt and that it was
committed in the actual presence of the court. M.R.Crim.P. 42(a).7
These rules do not apply to proceedings before the Industrial Accident
Commission.8 It would be beyond the authority of the Supreme Judicial Court
to prescribe rules for hearings before the Commission. The Court in
exercising its reviewing functions has commented upon the necessity of there
being “competent evidence to warrant the Commissions’ findings.” See, e.g.,
Larrabee’s Case, 120 Me. 242, 113 A. 268 (1921); Goldthwaite v. Sheraton
Restaurant, 154 Me. 214, 145 A.2d 362 (1958). Some of the cases speak of its
being bad practice to admit hearsay but that when admitted without objection
it can be given corroborating weight. In practice the Commission has heeded
this advice.
4 Now subsections (4)–(9).
5 This language has since been superseded, as the Maine Rules of Evidence now apply to juvenile
adjudications.
6 Now subsection (10).
M.R. Crim. P. 42 now states that contempt proceedings are governed by M.R. Civ. P. 66. Civil
Rule 66(b)(2) best supports this sentence.
7
8
Now the Workers Compensation Board.
17
Explanation of Amendment
(October 1, 1976)
This amendment is a purely formal change to make it completely clear
that the rules of evidence do not apply to small claims proceedings in the
District Court. The statute, 14 M.R.S.A. §§ 7451-7457,9 calls for a “simple,
speedy and informal procedure”10 in which “the technical rules of evidence
shall not apply.”11 It was never intended to alter this procedure, but the
generality of Rule I 101(a)12 making the rules applicable to all proceedings in
the District Court warrants an express exclusion of coverage of small claims
proceedings.
Advisory Committee Note
(February 15, 1988 Amendment)
This amendment of Rule 1101 makes the rules inapplicable to
proceedings for the determination of probable cause. Traditionally in
probable cause hearings, for bindover of a defendant pending grand jury
indictment, the rules of evidence have not been strictly applied. Usually the
primary facts supporting the charge are established by evidence admissible
under the rules, but subsidiary points are often established by hearsay and
other inadmissible evidence. Strict applicability of the rules of evidence to
preliminary proceedings of this sort could lead to needless formality in
preliminary proceedings, waste of time, and abuse of preliminary probable
cause hearings to harass the prosecution.
These statutes have been repealed; the information can now be found at 14 M.R.S.
§§ 7481-7487 (2014).
9
10 At 14 M.R.S. § 7481 (2014).
This language is no longer in the Small Claims statutes. Maine Rules of Small Claims
Procedure 6(b) states that “[t]he rules of evidence, other than those with respect to privileges, shall
not apply.”
11
12 Rule 101(a)(3).
18
Federal Rule 1101(3) exempts probable cause hearings from the
applicability of the Federal Rules of Evidence.13
The amendment also makes clear what has already been accomplished
by statute, namely that the Rules of Evidence do not apply to juvenile
detention (analogous to probable cause or bindover hearings) but they do
apply to juvenile adjudications. See Maine Juvenile Code, 15 M.R.S.A.
§ 3307(1).14
Advisory Committee Note
(December 29, 1994 Amendment)
This amendment conforms the Rules of Evidence to recent amendments
in the Maine Juvenile Code, 15 M.R.S.A. §§ 3001 et seq. The Maine Juvenile
Code, as presently applied, contemplates a bindover hearing in the District
Court at which the court determines whether there is probable cause to
believe that a juvenile crime has been committed and whether after
consideration of the seriousness of the crime, the characteristics of the
juvenile and the dispositional alternatives available to the Juvenile Court it is
appropriate to prosecute the juvenile as an adult. 15 M.R.S.A. §3101. The
Code provides that the Rules of Evidence shall apply “only to the probable
cause portion of the bindover15 hearing.” 15 M.R.S.A. §3101(4)(B). The Code
also provides that the Rules of Evidence “shall apply in the adjudicatory
hearing” (15 M.R.S.A. §3310(1)) but “shall not16 apply to dispositional
hearings.” (15 M.R.S.A. §3312(1)). Current practice in the Juvenile Court
follows the requirements of the Code. This amendment brings the express
language of the Rules in line with the Code as well.
Federal Rule 1101(c) currently states that the Federal Rules of Evidence do not apply when
issuing search/arrest warrants or criminal summons, or in “a preliminary examination in a criminal
case.”
13
Subsection (1) of this statute has been repealed. Further, the entire sentence has been
superseded by the 1994 amendment.
14
15 “. . . bind-over . . . .”
16 “Do not . . . .”
19
Advisory Committee Note
(June 5, 1995 Amendment)
This amendment is intended to clarify the recent amendment of Rule
1101 with respect to juvenile proceedings. The rules do not apply to any
activities in the juvenile court, regardless of how described or denominated,
other than the determination of probable cause in bindover proceedings and
adjudicatory proceedings.
RULE 102. PURPOSE
These rules should be construed so as to administer every proceeding fairly,
eliminate unjustifiable expense and delay, and promote the development of
evidence law, to the end of ascertaining the truth and securing a just
determination.
Maine Restyling Note [November 2014]
Maine Rule 102 and Federal Rule 102 are substantively identical, and
therefore the Advisory Committee recommends adoption of the language of
the restyled Federal Rule.
Federal Advisory Committee Note
The language of Rule 102 has been amended as part of the restyling of
the Evidence Rules to make them more easily understood and to make style
and terminology consistent throughout the rules. These changes are intended
to be stylistic only. There is no intent to change any result in any ruling on
evidence admissibility.
__________________________________________________________________
Advisers’ Note to former M.R. Evid. 102
(February 2, 1976)
This generalized statement of purpose is comparable to [M.R. Civ. P.] 1
and M.R.Crim.P. 2. It sets the tone of flexibility and liberality in construing the
rules to the end that truth may be ascertained. This negates the old-fashioned
common-law rule that statutes—or rules—in derogation thereof are to be
strictly construed. The rule is a guide as to the principles by which the judge
20
is to exercise his discretion, but not of course a license to disregard the rules
to reach a result he believes to be just.
RULE 103. RULINGS ON EVIDENCE
(a)
Preserving a claim of error. A party may claim error in a ruling to
admit or exclude evidence only if the error affects a substantial right of
the party and:
(1)
(2)
If the ruling admits evidence, a party, on the record:
(A)
Timely objects or moves to strike; and
(B)
States the specific ground, unless it was apparent from the
context; or
If the ruling excludes evidence, a party informs the court of its
substance by an offer of proof, unless the substance was apparent
from the context.
(b)
Court’s statement about the ruling; directing an offer of proof. The
court may make any statement about the character or form of the
evidence, the objection made, and the ruling. The court may direct that
an offer of proof be made in question-and-answer form.
(c)
Preventing the jury from hearing inadmissible evidence. To the
extent practicable, the court must conduct a jury trial so that
inadmissible evidence is not suggested to the jury by any means.
(d)
Taking notice of plain error.17 A court may take notice of an obvious
error affecting a substantial right, even if the claim of error was not
properly preserved.
(e)
Effect of pretrial ruling. A pretrial objection to or proffer of evidence
must be timely renewed at trial unless the court states on the record, or
17 The term “plain error” is derived from the Federal Rule. The term “obvious error” is used in
State practice. See State v. Dolloff, 2012 ME 130, ¶ 35, 58 A.2d 1032.
21
the context clearly demonstrates, that a ruling on the objection or
proffer is final.
Maine Restyling Note [November 2014]
Maine Rule 103 is substantially similar to Federal Rule 103, with one
small difference. Presently, Maine Rule 103(e) puts the burden on counsel to
renew an objection or offer made in limine or otherwise before the evidence
would be offered at trial, unless the trial judge or the circumstances make it
clear that the previous ruling was indeed final. The Federal Rule (at the end of
old subsection (a) and in new subsection (b)) makes the pretrial ruling final so
that the objection or proffer need not be renewed at trial.
The Maine departure represents a policy choice for Maine. The
proposed restyled Rule 103 embodies this policy choice by carrying over
former Maine Rule 103(e) without a change in language.
Federal Advisory Committee Note
The language of Rule 103 has been amended as part of the restyling of
the Evidence Rules to make them more easily understood and to make style
and terminology consistent throughout the rules. These changes are intended
to be stylistic only. There is no intent to change any result in any ruling on
evidence admissibility.
__________________________________________________________________
Advisers’ Note to former M.R. Evid. 103
(February 2, 1976)
This rule is declaratory of Maine law. In subdivision (d)18 the Federal
Rule reads “plain error”, following F.R. Crim. P. 52(b). “Obvious” is used here
to conform to M.R. Crim. P. 52(b), which used that term instead of “plain”.
M.R.C.P. 61 provides that error “which does not affect the substantial rights of
the parties” must be disregarded.19 There are numerous cases in both Maine
18 Now subdivision (e) of Federal Rule 103.
19 M.R. Civ. P. 61 no longer contains the quoted language.
22
and federal courts in which the “obvious” or “plain” error rule has been
invoked. There appears to be no difference in treatment by reason of the
difference in wording. The power is exercised cautiously and only when
necessary to prevent a clear miscarriage of justice. State v. Chaplin, 308 A.2d
873 (Me. 1973).
Advisory Committee Note
(April 1, 1998 amendment)
This amendment [adding sub-§ (c)]20 is proposed to conform Maine
Rule 103 to a 1997 amendment of the federal counterpart. It is believed that
this amendment does not change existing law. See Field and Murray, Maine
Evidence (4th ed.) §103.7 at p. 26, State v. Knight, 623 A.2d [1293] (Me. 1993).
RULE 104. PRELIMINARY QUESTIONS
(a)
In general. The court must decide any preliminary question about
whether a witness is qualified, a privilege exists, or evidence is
admissible.
(b)
Relevance that depends on a fact. When the relevance of evidence
depends on whether a fact exists, proof must be introduced sufficient to
support a finding that the fact does exist. The court may admit the
proposed evidence on the condition that the proof be introduced later.
(c)
Conducting a hearing so that the jury cannot hear it. The court must
conduct any hearing on a preliminary question so that the jury cannot
hear it if:
(1)
The hearing involves the admissibility of a confession;
(2)
A defendant in a criminal case is a witness and so requests; or
(3)
Justice so requires.
20 Now subsection (e).
23
(d)
Cross-examining a defendant in a criminal case. By testifying on a
preliminary question, a defendant in a criminal case does not become
subject to cross-examination on other issues in the case.
(e)
Evidence relevant to weight and credibility. This rule does not limit
a party’s right to introduce before the jury evidence that is relevant to
the weight or credibility of other evidence.
Maine Restyling Note [November 2014]
Current Maine Rule 104 is slightly different from its former Federal
counterpart. Federal Rule 104(b) has been restyled to make it very similar to
Maine Rule 104(b). The language regarding applicability of the rules of
evidence in preliminary determinations has been eliminated from Rule 104(a)
as part of the restyling process to reflect that the proposed new Rule 101 sets
forth all provisions regarding the applicability of the Rules. Maine Rule 104(a)
previously included a reference to the inapplicability of the Rules on
preliminary questions other than those arising in connection with Motions to
Suppress “and the like.” There is no express reference to Motions to Suppress
in the proposed revised Rule 101 as it was the determination of the Advisory
Committee that Motions to Supress, which generally consider whether
evidence was obtained illegally such as in violation of a person’s constitutional
rights, are not preliminary determinations of admissibility under Rule 104.
Under the revised language and consistent with well-settled Maine law and
practice, the Maine Rules of Evidence will continue to apply during
evidentiary hearings on such motions.
Federal Advisory Committee Note
The language of Rule 104 has been amended as part of the restyling of the
Evidence Rules to make them more easily understood and to make style and
terminology consistent throughout the rules. These changes are intended to
be stylistic only. There is no intent to change any result in any ruling on
evidence admissibility.
__________________________________________________________________
24
Advisers’ Note to former M.R. Evid. 104
(February 2, 1976)
Subdivision (a) incorporates accepted Maine practice in declaring that
preliminary questions of admissibility are for the court. The rule that the
court is not bound by the rules of evidence in the determination of a
preliminary question is made subject to one exception which requires the
rules to be followed in hearings on motions to suppress evidence and the
like.21 This exception is not in the Federal Rule. The United States Supreme
Court has upheld the use of inadmissible hearsay on a motion to suppress
evidence, supporting the proposition that the use of such out-of-court
statements does not offend the defendant’s constitutional right of
confrontation under the Sixth Amendment and the due process clause. United
States v. Matlock, 415 U.S. 164, 94 S.Ct. 988 (1974). However, when there is a
serious factual dispute on an issue which may be decisive of the case, as on a
motion to suppress, common fairness requires that the witness be present
and subject to cross-examination under the rules of evidence. The words “and
the like” are intended to embrace other questions, such as identification,
where the rights of a criminal defendant may be seriously jeopardized if the
issue is determined without opportunity for cross-examination of the witness
with knowledge of the facts.22 It should be noted that a statement made by a
person out of court which is relied upon by the witness in doing certain acts,
such as search for evidence, is not hearsay since it is not introduced for the
truth of the matter asserted. Rather it is evidence of the information the
witness possessed and therefore of probable cause. Apart from this, the rule is
that generally prevailing in Maine and elsewhere. There are numerous
preliminary questions which the court has always determined without being
bound by the rules of evidence. Examples are questions involving exceptions
to the hearsay rule, such as whether conduct is intended as assertive, whether
a statement was made for diagnostic purposes, whether a document is a
business record, and whether a declarant is unavailable. There is no reason to
21 The language that this part of the Advisers’ Note references has been removed from Rule
104(a). The rule that the Rules of Evidence do not apply in determinations of preliminary questions
has been moved to Rule 101(b)(1), and the Restyling Note discusses that the “exception to the
exception” still applies for motions to suppress.
22 This language is no longer present in the Rules, but, as the Restyling Note to Rule 101 states,
the “exception to the exception” rule has not changed simply because of the restyling.
25
alter this practice. The exception with respect to privileges, which is in the
Federal Rule, means that a privilege may not be violated in a preliminary
hearing to determine whether or not it exists.
Subdivision (b) is in accord with Maine law. It deals with the problem of
conditional relevancy. When Item A and Item B considered separately are
each irrelevant in absence of proof of the other, a relevancy objection may be
interposed to whichever one is offered first. But a party must start
somewhere. This rule requires the proponent merely to bring forward
evidence from which the truth of Item A could be found, upon the
representation that evidence of Item B will be offered. Evidence of the
conditionally relevant Item B can then be shown. The dispute as to the truth
of each is ultimately for the jury rather than the judge. But the order of proof
is, as generally, for the judge. Rule 611 (a). He can decide whether to hear
evidence of Item A or of Item B first. He may take into account the relative
prejudice of having the jury hear one rather than the other if the proponent
fails to offer evidence of one of them sufficient to warrant a finding of its truth.
Whichever one he elects to hear first will be admitted conditionally or, in the
traditional phraseology, de bene. If the proponent fails to make good on his
representation to offer sufficient evidence of the second item, the evidence of
the first will on motion be stricken and the jury instructed to disregard it. See
Lipman Bros. v. Hartford Acc. & Indem. Co., 149 Me. 199, 209 ff., 100 A.2d 246,
252 ff. (1953). It is the obligation of opposing counsel to make the motion to
strike. The Federal Rule has no provision about discretion to admit evidence
conditionally.23 The reason for including it is to make it completely clear that
the court’s control of the order of proof, as provided in Rule 611 (a), is
preserved.
Subdivision (c) considers when preliminary questions should be
conducted out of the hearing of the jury. In a criminal case a hearing on the
admissibility of a confession is constitutionally required to be conducted out
of the jury’s hearing. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774 (1964). The
Supreme Court has also held as a constitutional matter that the prosecution
must at the preliminary hearing establish voluntariness of the confession by a
preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619
(1972). The Law Court has gone beyond this minimum constitutional
standard and required that the judge at the preliminary hearing determine
23 This is no longer accurate, as Federal Rule 104(b) has the same language as the Maine Rule.
26
voluntariness beyond a reasonable doubt. State v. Collins, 297 A.2d 620
(Me. 1972). On other preliminary matters the judge has discretion to decide
whether the interests of justice require the hearing to be in the absence of the
jury. This is the accepted Maine practice. In a criminal case when an accused
is a witness, he is entitled on request to have any preliminary hearing
conducted out of the jury’s hearing.
Subdivision (d) allows an accused in a criminal case to testify on a
preliminary matter, such as a motion to suppress evidence, without exposing
himself to general cross-examination. There are no Maine cases on the point.
The rule does not address itself to the question of subsequent use of
testimony given by an accused on a preliminary hearing. As a constitutional
matter, however, such testimony cannot be used at the trial as evidence of his
guilt. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967 (1968).
RULE 105. LIMITING EVIDENCE THAT IS NOT ADMISSIBLE AGAINST
OTHER PARTIES OR FOR OTHER PURPOSES
If the court admits evidence that is admissible against a party or for a
purpose—but not against another party or for another purpose—the court, on
timely request, must restrict the evidence to its proper scope and instruct the
jury accordingly.
In a criminal case tried to a jury, evidence inadmissible as to one defendant
must not be admitted as to other defendants unless all references to the
defendant as to whom it is inadmissible have been effectively deleted.
Maine Restyling Note [November 2014]
The language of the first sentence of Maine Rule 105 is identical to
Federal Rule 105. Maine’s second sentence is to implement Maine’s version of
the holding in Bruton v. United States, 391 U.S. 123, 126 (1968), which has
been carried over into the restyled Rules.
Federal Advisory Committee Note
The language of Rule 105 has been amended as part of the restyling of
the Evidence Rules to make them more easily understood and to make style
and terminology consistent throughout the rules. These changes are intended
27
to be stylistic only. There is no intent to change any result in any ruling on
evidence admissibility.
__________________________________________________________________
Advisers’ Note to former M.R. Evid. 105
(February 2, 1976)
This rule accepts for civil cases the long-standing practice of instructing
the jury to consider evidence only on a particular issue or with reference to a
particular party even though it has an obvious and perhaps a highly
prejudicial bearing on some other issue or party. In criminal cases, however,
the ineffectiveness of such a limiting instruction is recognized. In Bruton v.
United States, 391 U.S. 123, 88 S.Ct. 1620 (1968), the Court held that the
constitutional right of confrontation forbids the use in a joint trial of an oral
confession of one codefendant expressly implicating the other when the
confessing codefendant does not take the stand and subject himself to crossexamination. The Court concluded that a jury would be unable to put out of
mind “powerfully incriminating extrajudicial statements of a codefendant.”
Long before Bruton, M.R.Crim.P. 1424 authorized severance when it appeared
that a defendant might be prejudiced by a joint trial. Bruton emphasizes that
this potential for prejudice has constitutional force. The rule therefore
compels the state to choose between severance and foregoing use of evidence
admissible as to fewer than all defendants, with the single qualification that a
statement may be admitted in a joint trial if all references to the defendant
against whom it is inadmissible have been effectively deleted. This
qualification is recognized in Maine. State v. Wing, 294 A.2d 418 (Me. 1972).
It will often be apparent that effective deletion is impossible, in which case
severance will be necessary.
The last sentence is not in the Federal Rule. For the reasons already
stated, its inclusion seems called for by proper respect for the Bruton rule.
RULE 106. REMAINDER OF OR RELATED WRITINGS
OR RECORDED STATEMENTS
If a party utilizes in court all or part of a writing or recorded statement, an
adverse party may require the introduction, at that time, of any other part—or
24 Now M.R. Crim. P. 8(d).
28
any other writing or recorded statement—that in fairness ought to be
considered at the time.
Maine Restyling Note [November 2014]
Maine Rule 106 is a little broader than its federal counterpart, in that it
authorizes the introduction in evidence of a writing or other parts of a writing
that is “utilized” in court, not just admitted. This is to allow a party to attempt
to counteract potentially incomplete or misleading handling or reference to
writings in court even if they are not formally offered in evidence. See Maine
Advisers’ Note to Rule 106. This policy choice has been carried over in the
restyled Rule.
Federal Advisory Committee Note
The language of Rule 106 has been amended as part of the restyling of the
Evidence Rules to make them more easily understood and to make style and
terminology consistent throughout the rules. These changes are intended to
be stylistic only. There is no intent to change any result in any ruling on
evidence admissibility.
__________________________________________________________________
Advisers’ Note to former M.R. Evid. 106
(February 2, 1976)
This rule codifies the familiar principle of “completeness”, which is
already embodied in M.R.C.P. 32(a)(4) as to depositions. Its purpose is to
enable the court to correct the misleading impression created by taking
matters out of context. It applies to writings and recorded statements but not
to conversations. When part of a writing or recording is introduced, an
adverse party has the right to inspect it and move that any other part be put in
evidence immediately after the incomplete portion has been introduced, so
that its impact will not be lessened by the delay. The court obviously has a
large measure of discretion in determining what in fairness should thus be
contemporaneously considered. The words “utilized in court” are designed to
permit the same procedure when a writing is silent on a point as when it is
contrary to the testimony of a witness on the stand. A concession drawn from
a witness that his written statement does not include a certain thing may be
just as misleading as introduction of a part of a statement contrary to his
29
testimony. The Federal Rule uses “introduced” instead of “utilized in court”
and thus does not protect against the misleading effect which may result from
the use of a statement without its introduction in evidence.
ARTICLE II. JUDICIAL NOTICE
RULE 201. JUDICIAL NOTICE OF ADJUDICATIVE FACTS
(a)
Scope. This rule governs judicial notice of an adjudicative fact only, not
a legislative fact.
(b)
Kinds of facts that may be judicially noticed. The court may
judicially notice a fact that is not subject to reasonable dispute because
it:
(c)
(1)
Is generally known within the trial court’s territorial jurisdiction;
or
(2)
Can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.
Taking notice. The court:
(1)
May take judicial notice on its own; or
(2)
Must take judicial notice if a party requests it and the court is
supplied with the necessary information.
(d)
Timing. The court may take judicial notice at any stage of the
proceeding.
(e)
Opportunity to be heard. On timely request, a party is entitled to be
heard on the propriety of taking judicial notice and the nature of the fact
to be noticed. If the court takes judicial notice before notifying a party,
the party, on request, is still entitled to be heard.
(f)
Instructing the jury. The court must instruct the jury to accept the
noticed fact as conclusive.
30
Maine Restyling Note [November 2014]
Maine Rule 201 is similar, but not identical to Federal Rule 201. In
Maine there is no distinction between civil and criminal cases in the effect of
judicial notice. In both cases the court instructs the jury that the fact noticed
should be accepted as conclusive. This policy choice has been carried over
into the restyled Rule. See also 16 M.R.S. §§ 401-406 (addressing judicial
notice of laws of other jurisdictions).
Federal Advisory Committee Note
The language of Rule 201 has been amended as part of the restyling of
the Evidence Rules to make them more easily understood and to make style
and terminology consistent throughout the rules. These changes are intended
to be stylistic only. There is no intent to change any result in any ruling on
evidence admissibility.
__________________________________________________________________
Advisers’ Note to former M.R. Evid. 201
(February 2, 1976)
This rule applies only to judicial notice of “adjudicative facts” as
distinguished from “legislative facts”, a distinction which has caused some
confusion. An adjudicative fact is the “what-happened”, “who-did-what-andwhen” kind of question that normally goes to a jury. It seems reasonable to
require, as the rule does, that a judicially noticed adjudicative fact must be one
not subject to reasonable dispute. Legislative facts are those a court takes into
account in determining the constitutionality or interpretation of a statute or
the extension or restriction of a common law rule upon grounds of policy.
They will often hinge on social, economic, or political facts not generally
known by intelligent people or readily determinable by resort to sources of
unquestioned accuracy. Subdivision (a) excludes legislative facts from the
operation of the rule.
Subdivision (b) in stating the kinds of facts which can be judicially
noticed is in accord with Maine case law. Torrey v. Congress Square Hotel Co.,
145 Me. 234, 242, 75 A.2d 451, 457 (1950). There are many Maine cases
allowing judicial notice of facts capable of accurate and ready determination
by resort to sources whose accuracy cannot reasonably be questioned. See,
31
e.g., First National Bank v. Kingsley, 84 Me. 111, 24 A. 794 (1891) (upon what
day of the week a certain day of the month falls).
Subdivisions (c) and (d)25 permit the court to take judicial notice
without request and require proper judicial notice to be taken on request.
Taking judicial notice without request reflects existing Maine practice, and it
seems reasonable to require it in appropriate cases on request of a party.
Subdivisions (e), (f), and (g)26 explain the procedural mechanics of
judicial notice. As a matter of fairness, it assures a party of the right to be
heard in opposition to the taking of judicial notice. At the hearing he can offer
evidence and argument that the matter is reasonably subject to dispute. If he
fails to convince the trial judge, his only remedy is by appeal. He cannot
present contrary evidence to the jury because by hypothesis facts can be
judicially noticed only if they are not subject to reasonable dispute. The court
must instruct the jury to accept as established any judicially noticed fact. It
would be absurd to allow jurors to consider, for example, on the basis of their
individual recollection or speculation, whether December 4, 1972, actually fell
on a Monday as the court had instructed them.
The rule does not distinguish between civil and criminal cases. Most of
the criminal cases deal with matters of jurisdiction or venue. State v. Bennett,
158 Me. 109, 116, 179 A.2d 812, 816 (1962) (judicial notice that Hope is in
Knox County). But the rule is not so limited. The constitutional right to trial
by jury does not extend to matters which are beyond reasonable dispute. For
instance, the Law Court has taken judicial notice that alcohol is intoxicating
and overruled an exception based on lack of proof of that fact. State v. Kelley,
129 Me. 8, 149 A. 153 (1930).
Finally, this rule has nothing to do with judicial notice of foreign law,
which is covered by 16 M.R.S.A. §§ 401–406 and M.R.C.P. 44A.
25 Now only subdivision (c).
26 Now subdivisions (d), (e), and (f).
32
The Federal Rule adds a sentence in subdivision (g)27 that in a criminal
case the court shall instruct the jury that it may, but is not required to, accept
as conclusive any fact judicially noted. Since judicial notice is limited to facts
not subject to reasonable dispute, there is no reason for not making it
mandatory in criminal as well as in civil cases. It would be absurd in a criminal
case as in a civil action to allow jurors to question the accuracy of the court’s
instruction as to what day of the week December 4, 1972, actually was.
It is essential to bear in mind that resort to judicial notice in any case,
civil or criminal, is permissible only if the judicially noticed fact is not subject
to reasonable dispute. The court must not accept as sufficient the absence of
actual dispute over, for example, a scientific conclusion found in a text or
treatise. Such a misuse of judicial notice would deprive a criminal defendant
of his constitutional right to jury trial.
ARTICLE III. PRESUMPTIONS
RULE 301. PRESUMPTIONS IN CIVIL CASES GENERALLY
(a)
Effect. In a civil case, unless a statute or these rules provide otherwise,
the party against whom a presumption is directed has the burden of
proving that the nonexistence of the presumed fact is more probable
than its existence.
(b)
Prima facie evidence. A statute providing that a fact or group of facts
is prima facie evidence of another fact establishes a presumption within
the meaning of this rule.
(c)
Conflicting presumptions. If two presumptions conflict with each
other, the court must apply the presumption that is more strongly
supported by policy and logic. If neither presumption is more strongly
supported by policy and logic, both presumptions must be disregarded.
Maine Restyling Note [November 2014]
Maine Rule 301 is quite different from Federal Rule 301, in that the
effect of a presumption is different and there are additional provisions dealing
27 Now subdivision (f).
33
with the phrase “prima facie evidence” and conflicting presumptions. The
proposed restyled Rule attempts to retain these distinctions in restyled
format and language.
Federal Advisory Committee Note
The language of Rule 301 has been amended as part of the restyling of
the Evidence Rules to make them more easily understood and to make style
and terminology consistent throughout the rules. These changes are intended
to be stylistic only. There is no intent to change any result in any ruling on
evidence admissibility.
__________________________________________________________________
Advisers’ Note to former M.R. Evid. 301
(February 2, 1976)
The problems in dealing with presumptions are complex and difficult.
First of all, the term has been used in very different senses by courts and
legislatures. The generally prevailing view among the commentators is that
the word presumption should be reserved for the convention that when a
designated fact called the basic fact exists, another fact called the presumed
fact must be taken to exist in the absence of adequate rebuttal. It has that
meaning in this rule. Laymen, and courts as well, frequently use it as a
synonym for “inference” (“Dr. Livingston, I presume”), a matter of logic and
experience, not of law. The trier of fact is free to adopt or reject the inference.
The phrase “conclusive presumption” is not a presumption in any useful
sense, but a rule of law that if one fact, the basic fact, is proved, no one will be
heard to say that another fact, the presumed fact, does not exist. Nor is the
“presumption of innocence” in criminal cases really a presumption at all, but
rather a forceful way of saying that the prosecution must prove guilt beyond a
reasonable doubt and that there is to be no inference against the defendant
because of his arrest, indictment, or presence in the dock.
Giving presumption the meaning stated, if the only evidence relates to B,
the basic fact, it is universally conceded that when B is established, P, the
presumed fact, has to be taken as true. The trouble begins when evidence that
P is not true is introduced. One view, still followed in the majority of states, is
that the presumption places on the party against whom it is directed the
burden of going forward with evidence but that when there is testimony to
34
support a finding of the nonexistence of the presumed fact, the presumption
disappears like a bursting bubble and the case proceeds as though there never
had been a presumption. Another view is that the presumption continues
despite contradictory evidence, and the burden of persuasion is shifted so that
the party against whom the presumption is directed must show that the
nonexistence of the presumed fact is more probable than its existence.
This rule adopts for civil actions the second of these views and shifts the
burden of persuasion to the party against whom the presumption operates.
This is a change in Maine law as enunciated in the landmark opinion by Justice
Webber in Hinds v. John Hancock Mut. Life Ins. Co., 155 Me. 349, 155 A.2d 721
(1959), where the Law Court took the position that a presumption persists
“until the contrary evidence persuades the factfinder that the balance of
probabilities is in equilibrium, or, stated otherwise, until the evidence satisfies
the jury or factfinder that it is as probable that the presumed fact does not
exist as that it does exist.” The Hinds rule appears to have worked with
reasonable satisfaction, but there have been difficulties in explaining to the
jury the concept of probabilities being in equilibrium. Moreover, it involves
the logical impossibility of treating a presumption as evidence to be balanced
against other evidence when it is not evidence at all but a rule about evidence.
The difficulties with the Hinds rule are enhanced because it does not take into
account the different types of presumptions. Most presumptions are
grounded upon an inference; that is, a deduction of fact that may logically and
reasonably be drawn from another fact or group of facts. Evidence of these
underlying facts can be balanced against evidence of contrary facts. It is not
helpful, however, to say that the presumption persists to the point of
equilibrium. On the other hand, some presumptions are not based upon
rational inference but are created to reflect a desirable policy. An example is
the presumption that goods received by the terminal carrier were in the same
condition as, when delivered to the initial carrier. See Ross v. Maine Central
R.R., 114 Me. 287, 96 A. 223 (1915). Here there is nothing to balance against
evidence that the goods came to the last carrier in damaged condition, and the
Hinds rule is particularly ill-adapted to this situation.
The Federal Rule limits the effect of a presumption to fixing the burden
of going forward, so that the presumption disappears when evidence is
introduced which would support a contrary finding. Thus the offering of
testimony which no one in the courtroom believes serves to drop the
35
presumption out of the case. This gives too little weight to presumptions,
especially those not based on rational inference.28
In shifting the burden of persuasion this rule has the merit of making it
unnecessary for the court ever to mention the presumption and making it
possible to charge the jury in terms which it can readily understand. It may be
thought to give too great an effect to some presumptions, but this seems
preferable to the alternative of giving too little weight. In making its choice
the Court has adopted the rule originally promulgated by the Supreme Court
and incorporated in the newly approved Uniform State Law. It was also
looked upon with favor in Justice Webber’s opinion which finally settled upon
the Hinds Rule.
It should be noted that the rule preserves any statute giving a
presumption a different effect. One such statute is the Uniform Commercial
Code, 11 M.R.S.A. § 1-201(31),29 which defines a presumption in terms
affecting only the burden of going forward.
There are numerous statutes which state that one fact is prima facie
evidence of another fact. The purpose of subdivision (b) is to make it clear
that such a statute creates a presumption within the meaning of this rule in a
civil case. Rule 303(a) is to the same effect in a criminal case.
Subdivision (c) is designed to resolve the impasse when the court is
confronted by inconsistent presumptions. It directs the application of the one
founded upon weightier considerations of policy. If policy considerations are
of equal weight, both presumptions are to be disregarded. The wording is
taken from the Uniform Rules of Evidence approved in 1953 by the
Commissioners on Uniform State Laws. The principal class of cases in which
the problem has arisen is where rights are asserted under a second marriage
but no direct evidence is available of a death or divorce terminating the first
marriage before the second. Most courts say the presumption of innocence or
28 This is no longer accurate, looking at the language of Federal Rule 301 and its 1974 Note.
This statute has been repealed. 11 M.R.S. § 1-1206 (2014) provides that, when the UCC
creates a presumption, “the trier of fact must find the existence of the fact unless and until evidence
is introduced that supports a finding of its nonexistence.”
29
36
of the validity of a marriage is stronger than the presumption of continuance
of life or continuance of marriage.
RULE 302. PRESUMPTION OF LEGITIMACY
A child conceived by or born to a woman while she is lawfully married is
presumed to be the child of the woman and her spouse unless the contrary is
established by proof beyond a reasonable doubt.
Maine Restyling Note [November 2014]
Maine’s version of Rule 302 is entirely different from Federal Rule 302,
which is not necessary in Maine. The restyled Rule attempts to restate the
Maine Rule in more succinct terms that resonate with the criminal burden of
proof on which it is based. There is some question about whether this Rule
continues to be necessary or appropriate in view of current developments
that permit quick and easy determination of biological parentage.
__________________________________________________________________
Advisers’ Note to former M.R. Evid. 302
(February 2, 1976)
This rule gives separate treatment to the presumption of legitimacy.
Proof beyond a reasonable doubt is required, for reasons of social policy, to
rebut this presumption. The rule had its origin in bastardy proceedings but
the policy is equally applicable in any action involving legitimacy.
Federal Rule 302 deals with the effect of a presumption in a case where
state law supplies the rule of decision, typically a diversity of citizenship case.
It obviously has no place in a state code of evidence.
RULE 303. PRESUMPTIONS IN CRIMINAL CASES
(a)
Scope. This rule governs the application of statutory and common law
presumptions, including statutory provisions that certain facts are
prima facie evidence of other facts or of guilt in criminal cases.
(b)
Submission to jury. The court may not direct a verdict against an
accused based on a presumption or statutory provisions that certain
facts are prima facie evidence of other facts or of guilt. The court may
37
permit a jury to infer guilt or a fact relevant to guilt based on a statutory
or common law presumption or prima facie evidence, if the evidence as
a whole supports guilt beyond a reasonable doubt.
(c)
Instructing the jury. Whenever the existence of a presumed fact
against the accused is submitted to the jury, the court in instructing the
jury should avoid charging in terms of a presumption. The charge must
include an instruction that the jurors may draw reasonable inferences
from facts proved beyond a reasonable doubt and may convict the
accused in reliance upon an inference of fact if they conclude that such
inference is valid and if the inference convinces them of guilt beyond a
reasonable doubt and not otherwise.
Maine Restyling Note [November 2014]
The Federal Rules of Evidence do not deal with presumptions in the
context of criminal cases. The Maine Rule has been restyled in accordance
with the federal restyling format.
__________________________________________________________________
Advisers’ Note to former M.R. Evid. 303
(February 2, 1976)
Subdivision (a) makes it clear that Maine statutes using the phrase
“prima facie evidence” or “prima facie proof” will be regarded as creating
presumptions within the meaning of this rule.
Subdivision (b) recognizes that presumptions in criminal prosecutions
pose problems not involved in civil cases. Since a verdict of guilty can never
be directed, it follows that the court cannot direct the jury to find a presumed
fact against the accused as to any element of the offense. The use of a
presumption cannot take away from the jury any evidentiary issue, and the
court can submit the existence of the presumed fact to the jury only if the jury
could find guilt or the presumed fact beyond a reasonable doubt based on the
evidence as a whole. This substantially reflects Maine law. State v. O’Clair,
256 A.2d 839 (Me. 1969).
Subdivision (c) incorporates the recommendation of the Law Court in
State v. Poulin, 277 A.2d 493 (Me. 1971), that the trial judge should avoid
38
charging the jury in terms of a presumption, which was thought to be
confusing. It refers instead to the right to draw reasonable inferences from
facts proved beyond a reasonable doubt, but makes it clear that the jurors are
not required to accept the presumed fact. In other words, the presumption
cannot be made conclusive.30
ARTICLE IV. RELEVANCE AND ITS LIMITS
RULE 401. TEST FOR RELEVANT EVIDENCE
Evidence is relevant if:
(a)
It has any tendency to make a fact more or less probable than it would
be without the evidence; and
(b)
The fact is of consequence in determining the action.
Maine Restyling Note [November 2014]
Maine Rule 401 and Federal Rule 401 are substantively identical, and
therefore the Advisory Committee recommends adoption of the language of
the restyled Federal Rule. The restyled Rule breaks out the concepts of
classical relevance and materiality in two subsections.
Federal Advisory Committee Note
The language of Rule 401 has been amended as part of the restyling of
the Evidence Rules to make them more easily understood and to make style
and terminology consistent throughout the rules. These changes are intended
to be stylistic only. There is no intent to change any result in any ruling on
evidence admissibility.
__________________________________________________________________
30 The current state of the law regarding use of presumptions or inferences in criminal cases is
addressed in Alexander, Maine Jury Instruction Manual, § 6-13 at 6-23 (2014 ed.).
39
Advisers’ Note to former M.R. Evid. 401
(February 2, 1976)
This rule states traditional Maine law. See, e.g., Perlin v. Rosen,
131 Me. 481, 483, 164 A. 625, 626 (1933). The rule does not define relevancy
in terms of materiality. Relevant evidence is defined as meaning evidence of
any fact of consequence to the determination of the action. Materiality looks
to the relation between the proposition for which the evidence is offered and
the issues in the case. If the proposition is not probative of a matter in issue, it
is immaterial. If the proposition is material, evidence which makes it more
probable than it would be without the evidence is relevant evidence. Nothing
would be gained by including in the rule any reference to materiality. The
Supreme Court promulgated the rule in this form and the Advisory Committee
Note said that the language “has the advantage of avoiding the loosely used
word `material.’”
RULE 402. GENERAL ADMISSIBILITY OF RELEVANT EVIDENCE
Relevant evidence is admissible unless any of the following provides
otherwise:
•
•
•
A federal or state statute;
These rules; or
Other rules applicable in the courts of this state.
Irrelevant evidence is not admissible.
Maine Restyling Note [November 2014]
There are slight differences in language between the Maine and the
Federal Rules. The Federal Rule lists the various other sources of authority.
The existing and the restyled Maine versions merely make reference to
statutes and “other rules applicable in the courts of this state,” which is
intended to cover constitutional rules.
Federal Advisory Committee Note
The language of Rule 402 has been amended as part of the restyling of
the Evidence Rules to make them more easily understood and to make style
40
and terminology consistent throughout the rules. These changes are intended
to be stylistic only. There is no intent to change any result in any ruling on
evidence admissibility.
__________________________________________________________________
Advisers’ Note to former M.R. Evid. 402
(February 2, 1976)
The general rule that all relevant evidence is admissible is declaratory of
Maine law. See, e.g., McCully v. Bessey, 142 Me. 209, 49 A.2d 230 (1946);
Turgeon v. Lewiston Urban Renewal Authority, 239 A.2d 173 (Me. 1968).
These cases and many others emphasize the extent of the trial judge’s
discretion. The exceptions make it clear, however, that relevant evidence may
be excluded by reason of a statute or a rule. Highly relevant evidence may be
excluded by rules based on policy considerations, such as rules of privilege
and rules against hearsay. Examples of constitutional limitations are evidence
against an accused obtained by unlawful search and seizure and incriminating
statements elicited in violation of his right to counsel. These limitations
would be binding even if not stated in the rules. They are included for the
sake of clarity.
RULE 403. EXCLUDING RELEVANT EVIDENCE FOR PREJUDICE,
CONFUSION, WASTE OF TIME, OR OTHER REASONS
The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.
Maine Restyling Note [November 2014]
Maine Rule 403 and Federal Rule 403 are substantively identical, and
therefore the Advisory Committee recommends adoption of the language of
the restyled Federal Rule.
Federal Advisory Committee Note
The language of Rule 403 has been amended as part of the restyling of
the Evidence Rules to make them more easily understood and to make style
41
and terminology consistent throughout the rules. These changes are intended
to be stylistic only. There is no intent to change any result in any ruling on
evidence admissibility.
__________________________________________________________________
Advisers’ Note to former M.R. Evid. 403
(February 2, 1976)
This rule reflects Maine law. See e.g., State v. Berube, 297 A.2d 884
(Me. 1972). The trial judge has broad discretion in determining whether the
probative value of evidence is outweighed by the risk of unfair prejudice or
confusion of issues or by sheer waste of time.
RULE 404. CHARACTER EVIDENCE; CRIMES OR OTHER ACTS
(a)
(b)
Character evidence.
(1)
Prohibited uses. Evidence of a person’s character or character
trait is not admissible to prove that on a particular occasion the
person acted in accordance with the character or trait.
(2)
Exception for a defendant in a criminal case. A defendant may
offer evidence of the defendant’s pertinent trait, and if the
evidence is admitted, the prosecutor may offer evidence to rebut
it.
(3)
Exceptions for a witness. Evidence of a witness’s character may be
admitted under Rules 607, 608, and 609.
Crimes, wrongs, or other acts. Evidence of a crime, wrong, or other
act is not admissible to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with the
character.
Maine Restyling Note [November 2014]
Maine Rule 404 differs in some respects from its federal counterpart.
The Maine Rule does not include any exception for evidence of the character
of a victim in a criminal case, or permitting the prosecution to use evidence of
42
the defendant’s character to rebut it. The Maine Rule also does not spell out
the grounds for limited admissibility of evidence of other wrongs under Rule
404(b). This does not mean that such evidence is not admissible for limited
“non-character” purposes. However, the Maine Rule does not list some
permissible non-character uses lest it be inferred that these are the only
non-character purposes for which the evidence may be admitted. These
differences have been maintained in the restyled Rule.
Federal Advisory Committee Note
The language of Rule 404 has been amended as part of the restyling of
the Evidence Rules to make them more easily understood and to make style
and terminology consistent throughout the rules. These changes are intended
to be stylistic only. There is no intent to change any result in any ruling on
evidence admissibility.
__________________________________________________________________
Advisers’ Note to former M.R. Evid. 404
(February 2, 1976)
This rule deals with the use of character evidence for the purpose of
proving that a person acted in conformity with it on a particular occasion. The
separate question of the method of proof, once it is established that character
evidence in some form is admissible, is dealt with in Rule 405, and if the
character is that of a witness in Rules 608 to 610.
Subdivision (a) states the general rule that character evidence is not
admissible for this purpose. This has been Maine law since Potter v. Webb,
6 Me. 14 (1829), in civil cases. It is equally clear that the state in a criminal
action cannot introduce initially evidence of the bad character of the accused.
State v. Tozier, 49 Me. 404 (1862). This rule is not based on lack of relevancy
but rather because the danger of prejudice (“he’s a bad man, so he is probably
guilty”) outweighs the probative value.
Exception (1)31 applies only to criminal cases. An accused is allowed to
produce evidence of his good character, but the state may then rebut it. State
v. Tozier, supra.
31 This exception is now at (a)(2).
43
Exception (2)32 simply refers to Rules 607 to 609, which deal with
evidence of the character of a witness to impeach his credibility.
The rule does not include an exception allowing an accused to offer
evidence of a pertinent trait of the character of the victim of a crime as proof
that he acted in conformity therewith on the occasion in question. Examples
would be character evidence to support a claim of self-defense to a homicide
charge or consent in a case of rape. The Federal Rule allows such evidence,
but it is omitted from this rule because it has slight probative value and is
likely to be highly prejudicial, so as to divert attention from what actually
occurred. Absence of this exception may change Maine law; it is unclear. It
should be noted that this rule does not keep out the victim’s reputation for
violence, proved to have been known to the accused before the event, for the
purpose of showing his reasonable apprehension of immediate danger.
Subdivision (b) deals with evidence of other crimes, wrongs, or acts.
Such evidence is not admissible to prove character in order to show that a
person acted in conformity therewith. The subdivision does not exclude the
evidence when offered for another purpose, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident. Maine law is in accord. State v. Aubut, 261 A.2d 48
(Me. 1970) (evidence of attempt to utter forged instrument of same tenor on
same day admissible to show knowledge of forgery); State v. Wyman,
270 A.2d 460 (Me. 1970) (evidence of other crime of precisely similar nature
admissible to show intent; jury must be carefully instructed as to limited
purpose).
RULE 405. METHODS OF PROVING CHARACTER
(a)
By reputation. When evidence of a person’s character or character
trait is admissible, it may be proved by testimony about the person’s
reputation. On cross-examination of the character witness, the court
may allow an inquiry into relevant specific instances of the person’s
conduct.
32 This exception is now at (a)(3).
44
(b)
By specific instances of conduct. When a person’s character or
character trait is an essential element of a charge, claim, or defense, the
character or trait may also be proved by relevant specific instances of
the person’s conduct.
Maine Restyling Note [November 2014]
Existing Maine Rule 405 permits proof of character evidence only by
reputation. This substantive difference between the Maine and Federal Rules
is maintained in the restyled Rule.
Federal Advisory Committee Note
The language of Rule 405 has been amended as part of the restyling of
the Evidence Rules to make them more easily understood and to make style
and terminology consistent throughout the rules. These changes are intended
to be stylistic only. There is no intent to change any result in any ruling on
evidence admissibility.
__________________________________________________________________
Advisers’ Note to former M.R. Evid. 405
(February 2, 1976)
This rule covers the allowable methods of proving character once
character evidence has become admissible under Rule 404. Proof may be
made by testimony of reputation. This is in accord with Maine law. See
Phillips v. Kingfield, 19 Me. 375 (1841); Bliss v. Shuman, 47 Me. 248 (1859);
State v. Morse, 67 Me. 428 (1877).
The rule does not follow the Federal Rule in allowing proof of character
by the opinion of a witness. There is some justification for that approach,
since the jury is likely to think that a witness who says that the defendant’s
reputation is good is in fact vouching for him. There is, however, the risk that
wholesale allowance of opinion testimony would tend to turn a trial into a
swearing contest between conflicting character witnesses.
The last sentence of subdivision (a) allows inquiry on cross-examination
into relevant specific instances of conduct. Inquiry of a character witness,
45
“Have you heard . . .” of a certain event was permitted in the leading case of
Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213 (1948), in which the trial
court guarded the practice from misuse by ascertaining out of the presence of
the jury that the question related to an actual event and was not a random
shot or a groundless question to “wait33 an unwarranted innuendo into the
jury box.” There are no Maine cases on the point, but the practice seems a
desirable one.34
Subdivision (b) allows inquiry into specific instances of conduct on
direct examination when character is actually in issue; that is, when character
or a character trait is an operative fact which under the substantive law
determines the legal rights of the parties. This appears to be in accord with
Maine law. Smith v. Wyman, 16 Me. 13 (1839).
RULE 406. HABIT; ROUTINE PRACTICE
(a)
Admissibility. Evidence of a person’s habit or an organization’s routine
practice may be admitted to prove that on a particular occasion the
person or organization acted in accordance with the habit or routine
practice. The court may admit this evidence regardless of whether it is
corroborated or whether there was an eyewitness.
(b)
Method of proof. Habit or routine practice may be proved by proof of a
sufficient number of instances of conduct to support a finding that the
habit existed or that the practice was routine.
Maine Restyling Note [November 2014]
Maine Rule 406(a) is identical with Federal Rule 406. Maine Rule
406(b) specifically authorizes the use of evidence of specific instances of
33 “. . . waft . . . .”
34 Update: In State v. Shulikov, 1998 ME 111, ¶¶ 16-17, 712 A.2d 504, the Law Court held that
there was no manifest injustice when a prosecutor cross-examined two witnesses regarding
specific instances of the defendant’s conduct, without the court having first determined outside of
the jury’s presence whether there was a basis for the questions, because the State later
demonstrated on the record it had a factual basis for asking the questions, the defendant
acquiesced in the questioning and did not ask the State to demonstrate its foundation for the
questions, and no further reference to the specific instance was made at trial.
46
conduct to prove habit or routine practice. The language of Maine Rule 406(b)
has been carried over into the restyled Rule.
Federal Advisory Committee Note
The language of Rule 406 has been amended as part of the restyling of the
Evidence Rules to make them more easily understood and to make style and
terminology consistent throughout the rules. These changes are intended to
be stylistic only. There is no intent to change any result in any ruling on
evidence admissibility.
__________________________________________________________________
Advisers’ Note to former M.R. Evid. 406
(February 2, 1976)
Subdivision (a) recognizes the relevancy of a person’s habit or the
routine practice of an organization in proving that conduct on a particular
occasion was in conformity therewith. Rule 404 states the general rule that
evidence of a person’s character or a trait of his character is not admissible for
the purpose of proving that he acted in conformity therewith on a particular
occasion. Why should habit be treated differently? The rationale is that habit
describes one’s regular response to a repeated specific situation so that doing
the habitual act becomes semi-automatic. It is the notion of the invariable
regularity that gives habit evidence its probative force. Evidence that one is a
“careful man” or a “careful driver” is inadmissible as lacking the specificity of
an act becoming semi-automatic; it goes to character rather than habit. Thus
intemperate “habits” cannot be shown to prove drunkenness at the time of an
accident. Evidence of other assaults is inadmissible to prove the instant one in
a civil action for assault.
The cases have more readily admitted the routine practice of an
organization than that of an individual. See, e.g., Commonwealth v. Torrealba,
316 Mass. 24, 54 N.E.2d 939 (1944) (custom of store to give sales slips with
each purchase). But in Maine a notary has been permitted to state his usual
course of proceedings and his customary habits of business on the issue of
notice of dishonor to the indorsee of a note. Union Bank v. Stone, 50 Me. 595
(1862).
47
It is not clear to what extent this rule changes Maine law. There have
been references in the cases to the general rule that prior habits are not
admissible to prove the doing of a certain act on a specific occasion. See State
v. Brown, 142 Me. 106, 48 A.2d 29, 33 (1966); Duguay v. Pomerleau,
299 A.2d 914 (Me. 1967). In neither of these cases, however, was the
reference necessary to the result.
Subdivision (b) allows proof of habit or routine practice by testimony of
a sufficient number of specific instances of conduct to add up to a habit or
routine. The judge has considerable discretion on this point and may disallow
proof of specific instances under the overriding provisions of Rule 403.
Subdivision (b) is omitted from the Federal Rule. With it left out, the result
would be to go back to Rule 402 and make admissible any relevant evidence
as to habit. The inclusion of (b) has a desirable limiting effect.
RULE 407. SUBSEQUENT REMEDIAL MEASURES;
NOTIFICATION OF DEFECT
(a)
Subsequent remedial measures. When measures are taken that
would have made an earlier injury or harm less likely to occur, evidence
of the subsequent measures is not admissible to prove:
(1)
Negligence;
(2)
Culpable conduct;
(3)
A defect in a product or its design; or
(4)
A need for a warning or instruction.
But the court may admit this evidence for another purpose, such as
impeachment or—if disputed—proving ownership, control, or the
feasibility of precautionary measures.
(b) Notification of defect. Notwithstanding subdivision (a) of this rule, a
manufacturer’s written notification to purchasers of a defect in its product is
admissible to prove the existence of the defect.
48
Maine Restyling Note [November 2014]
The bulk of Maine Rule 407(a) has been restyled in accordance with
Federal Rule 407. Maine Rule 407(b), which has no federal counterpart, has
been restyled.
Federal Advisory Committee Note
The language of Rule 407 has been amended as part of the general
restyling of the Evidence Rules to make them more easily understood and to
make style and terminology consistent throughout the rules. These changes
are intended to be stylistic only. There is no intent to change any result in any
ruling on evidence admissibility.
Rule 407 previously provided that evidence was not excluded if offered
for a purpose not explicitly prohibited by the Rule. To improve the language
of the Rule, it now provides that the court may admit evidence if offered for a
permissible purpose. There is no intent to change the process for admitting
evidence covered by the Rule. It remains the case that if offered for an
impermissible purpose, it must be excluded, and if offered for a purpose not
barred by the Rule, its admissibility remains governed by the general
principles of Rules 402, 403, 801, etc.
__________________________________________________________________
Advisers’ Note to former M.R. Evid. 407
(February 2, 1976)
[Caution: Much of this Adviser’s Note is not applicable to the Rule as amended
effective July 1, 1996, following a statutory change. See below.]
Subdivision (a) is directly contrary to Maine law. See Carleton v.
Rockland, Thomaston & Camden St. Ry., 110 Me. 397, 86A. 334 (1913). It
declares that evidence of repairs and the like after an event is admissible to
prove negligence or culpable conduct. The public policy behind the rule
against admissibility was that it would deter repairs. This rationale is
unpersuasive today. In some instances subsequent repairs may be evidence
of culpability. In other instances quite the contrary is the fact. Despite this
departure from prior authority, it is still open to the trial judge under Rule
403 to exclude such evidence if he believes its probative value is substantially
49
outweighed by danger of unfair prejudice, confusion of issues, or misleading
the jury. A situation when the change is effectuated for reasons unrelated to
the hazard would be a clear case for such exclusion. Moreover, evidence of
subsequent repairs goes only to the proof of an existing defect. It has no
relevancy to the question whether the condition had existed long enough
before the accident in suit so that the defendant should have known of it.
Indeed, evidence that the condition was promptly corrected when the
defendant learned of it might be helpful to the defendant.
The exclusionary rule is already subject to numerous exceptions in
Maine and elsewhere. See Carleton v. Rockland, Thomaston & Camden St. Ry.,
supra (evidence of subsequent repairs admissible, not on the issue of
negligence, but on whether it was the duty of the defendant or someone else
to make the repairs).
It should be emphasized that although evidence of subsequent remedial
measures is admitted, it remains for the jury to decide whether the standard
of reasonable care has been satisfied. Proof that such measures were taken
clearly does not compel a finding that the previous condition reflected
culpable conduct.
Subdivision (b) is aimed at the increasingly common situation where a
manufacturer sends a “recall letter” to purchasers notifying them of a defect in
a product and asking its return for corrective measures. This is relevant as an
admission of existence of the defect and would be receivable against the
manufacturer under Rule 801(d)(2) unless excluded by reasons of policy.
There appear to be no such reasons. A manufacturer of motor vehicles or
tires is now required by statute to give notification of any safety-related
defect. 15 U.S.C. §1402.35 Manufacturers of other products would almost
certainly give a similar notification. It would be in their enlightened selfinterest to do so.
This problem has sufficient similarity to proof of subsequent remedial
measures to warrant making it a separate subdivision of the rule. Actually the
difference is substantial. Proof of subsequent remedial measures is not an
admission of anything. Repairs made after damage related to the very
property or chattel involved in an accident may warrant the inference of
35 This statute has been repealed.
50
negligence. Similarly a change in design may warrant the inference that the
previous design was faulty. A recall letter is an out-and-out admission of the
existence of a defect. The case for allowing it in evidence is much stronger.
The recall letter should not of itself suffice to establish causation. For
instance, if there is evidence that the steering gear of an automobile suddenly
failed, a recall letter would be admissible as to the existence of a defect. If,
however, there is no evidence that steering gear failure caused the accident,
the claim would fail for lack of proof of causation.
It would also seem that proof that a plaintiff received and did not heed
the warning of a defect would be admissible on the question of his due care.
The Federal Rule follows the conventional doctrine that evidence of
subsequent remedial measures is not admissible to prove negligence or
culpable conduct and does not deal with the admissibility of recall letters.
Consultant’s Note
(July 15, 1995 Amendment)
Caution: This note relates to a version of Rule 407(a) which has been largely
superseded!
This amendment is designed to limit the effect of prior Rule 407. The
new version of Rule 407(a) makes admissible subsequent remedial measures
involving the design or condition of premises or a tangible thing to the extent
such measures are logically relevant to an issue in the case. This formulation
merely restates and clarifies the prior formulation of Rule 407(a) as that rule
applied to premises and tangible things. The amended rule does not make
admissible subsequent remedial measures not involving premises or a
tangible thing. Thus, the revised rule would not support admissibility of
changes in institutional practice, training, procedures, or instructions in cases
based on allegedly negligent practice, procedures, training or instructions.
The admissibility of post-event changes in cases of this kind is determined by
the general rules of relevance, Rules 401-403. Presumably it would be
permissible for the Law Court to construe these rules to re-erect a common
law barrier to such evidence, at least in certain contexts.
51
The amendment also makes evidence otherwise admissible under Rule
407(a) nonetheless excludable if the probative value of the evidence is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence. The inclusion of Rule
403 language in the text of Rule 407 is not intended to suggest that Rule 403
does not apply to evidence made admissible by other rules, but is to make it
clear that the positive grant of admissibility in Rule 407(a) is always subject to
the authority of the trial court to apply the policies of Rule 403.
Consultant’s Note
(July 4, 1996 Amendment)
This amendment is designed to bring Rule 407(a) in conformity with
Chapter 576 of the Public Laws of 1996 as enacted by the Maine Legislature
on March 29, 1996.
The rule as amended follows Federal Rule 407 in making subsequent
remedial measures inadmissible to prove negligence or culpable conduct, but
potentially admissible for other purposes. The list of such other purposes for
which such evidence may be admitted is not intended to be exhaustive, but
includes the most common bases on which admission may be warranted in
specific cases. Chapter 576 expressly states that it “applies to causes of action
in which the harm or injury occurred on or after the effective date of this Act.”
Non-emergency legislation of the 1996 legislative session becomes effective
on July 4, 1996.
The amendment makes revised Rule 407 effective as of July 4, 1996 and
would apply to trials and rulings occurring on or after its effective date
regardless of the date of injury or of the date of commencement of the action.
This provision on applicability of the new rule was chosen by the Law Court in
preference to the corresponding provision of Chapter 576, in the interest of
clarity and simplicity of application.
Advisory Committee Note
(April 1, 1998 Amendment)
This amendment is proposed to bring Maine Rule 407(a) in conformity
with Federal Rule 407 as amended in 1997. The amendment makes clear that
52
the operative date for “subsequent” is the date of the injury on trial, not the
date a product was designed or manufactured, and not the date of some prior
failure or other occurrence. The amendment also makes it clear that Rule 407
applies in cases of strict liability and “products liability” as well as traditional
negligence.
RULE 408. COMPROMISE OFFERS AND NEGOTIATIONS
(a)
(b)
Settlement discussions. Evidence of the following is not admissible—
on behalf of any party—either to prove or disprove the validity or
amount of a disputed claim or to impeach by a prior inconsistent
statement or a contradiction:
(1)
Furnishing, promising, or offering—or accepting, promising to
accept, or offering to accept—a valuable consideration in
compromising or attempting to compromise the claim; and
(2)
Conduct or a statement made during compromise negotiations or
in mediation about the claim.
Mediation. Evidence of conduct or statements by any party or
mediator at a mediation session:
(1)
Undertaken to comply with any statute, court rule, or
administrative agency rule;
(2)
To which the parties have been referred by a court, administrative
agency, or arbitrator; or
(3)
In which the parties and mediator have agreed in writing or
electronically to mediate with an expectation of confidentiality;
Is not admissible in the proceeding with respect to which the mediation
was held or in any other proceeding between the parties to the
mediation that involves the subject matter of the mediation for any
purpose other than to prove:
•
•
Fraud;
Duress;
53
•
•
Other cause to invalidate the mediation result; or
Existence of an agreement.
Maine Restyling Note [November 2014]
Maine Rule 408 has evolved to become quite different from Federal Rule
408 in form, if not in substance. The restyled Maine Rule brings the language
and structure of the Maine Rule back to be more in conformity with the
restyled Federal Rule. The proposed restyled Maine Rule follows the Federal
Rule in referring to the validity or amount of a disputed claim rather than the
prior Maine formulation of “any substantive issue in dispute between the
parties.” The prior Maine language was inserted to deal with divorce cases
and other matters that did not seem to involve monetary “claims.” The phrase
has been clumsy and opaque in practice, and the federal formulation seems
clearer, particularly if “claim” is broadly read as any substantive legal position
of a party. Rule 408(b) is unique to Maine and is the result of extended
negotiations with the mediation community. Since there is no federal
counterpart, and hence no need for Maine-Federal consistency, the proposed
restyled version is the same as the existing version.
Federal Advisory Committee Note
The language of Rule 408 has been amended as part of the general
restyling of the Evidence Rules to make them more easily understood and to
make style and terminology consistent throughout the rules. These changes
are intended to be stylistic only. There is no intent to change any result in any
ruling on evidence admissibility.
Rule 408 previously provided that evidence was not excluded if offered
for a purpose not explicitly prohibited by the Rule. To improve the language
of the Rule, it now provides that the court may admit evidence if offered for a
permissible purpose. There is no intent to change the process for admitting
evidence covered by the Rule. It remains the case that if offered for an
impermissible purpose, it must be excluded, and if offered for a purpose not
barred by the Rule, its admissibility remains governed by the general
principles of Rules 402, 403, 801, etc.
The Committee deleted the reference to “liability” on the ground that
the deletion makes the Rule flow better and easier to read, and because
54
“liability” is covered by the broader term “validity.” Courts have not made
substantive decisions on the basis of any distinction between validity and
liability. No change in current practice or in the coverage of the Rule is
intended.
__________________________________________________________________
Advisers’ Note to former M.R. Evid. 408
(February 2, 1976)
This rule declares evidence of a compromise or offer to compromise or
of compromise negotiations to be inadmissible on the issue of liability for or
amount of a disputed claim. This goes somewhat beyond present Maine law.
In Hunter v. Totman, 146 Me. 259, 80 A.2d 401 (1951), it was held that
admissibility depends on intention; if the offer is intended to be an admission
of liability coupled with an endeavor to settle, it is admissible to prove
liability. The rule avoids the need of determining intention and makes the
evidence inadmissible without qualification. The purpose is to encourage
settlement discussion and to do away with any need for the cautious lawyer to
preface a statement with the words “without prejudice”.
Evidence of a compromise offer may be admissible for another purpose,
such as tending to show bias or prejudice of a witness.
The Federal Rule omits the reference to “any other claim.”36 It also
includes the following sentence: “This rule does not require the exclusion of
any evidence otherwise discoverable merely because it is presented in the
course of compromise negotiations.”37 The meaning of this sentence is
unclear; it seems to state what the law would be if it were omitted. The rule
excludes “conduct or statements” made in compromise negotiations. Surely
the presentation during negotiations of admissible evidence would not
insulate such evidence from use at the trial, as for example when counsel
displays a hospital record. If Congress meant “admissible” rather than
“discoverable”, the sentence is needless. If it intended to refer to the regular
discovery procedures, it seems equally needless. If “discoverable” means
36 The current Maine Rule also omits the reference.
37 This language is no longer present in the Federal Rule.
55
something that the adversary would not have learned about except for the
settlement negotiations, as a layman might use the term, inclusion of the
sentence would be indefensible.
Advisory Committee Note
(1985 Amendment)
By 1985 amendment the applicability of Rule 408 to negotiations in
domestic relations matters was made more clear by the amendment of the
second sentence of Rule 408(a) to refer to “any substantive issue in dispute.”38
The purpose of this amendment was to negate any implication that
“compromise negotiations” referred only to the kinds of claims mentioned in
the first sentence of the rule, but included any kind of litigable claim, demand,
or defense.
Because of the strong public policy favoring free negotiations and free
expression of the parties during court-sponsored mediation in domestic
relations cases, statements or conduct by any party (including the mediator)
occurring during the course of a court-sponsored mediation session are made
inadmissible for any purpose.
Advisory Committee Note
(February 15, 1993 Amendment)
It has been suggested by a variety of sources that conduct and
statements made in the course of mediation and other alternative dispute
resolution procedures should not be admissible in evidence based upon
policies fostering the use of mediation and other alternative dispute
resolution procedures. Much of what is said and done by the parties during
the course of mediation is protected under Rule 408(a) as it existed prior to
the 1992 amendment inasmuch as mediation can be regarded as merely a
structured form of compromise negotiations. On the other hand, in view of
the high level of interest in mediation confidentiality it may be helpful to make
it clear that mediation is entitled to the same level of protection as
negotiations carried on directly between the affected parties without the
participation of a third party facilitator.
38 This language has since been removed—see the Restyling Note for explanation.
56
It should be noted that this proposed rule revision does not confer any
kind of mediator’s “privilege.”39 At the time of the enactment of the Rules the
Committee restricted its codification of privileges to those which had existed
at common law or by statute as of that time. The Committee is reluctant to
propose new privileges in the absence of some clear legislative or Court policy
indication that such privileges are warranted.
Nor does the amendment create an absolute ban on the use of
statements or conduct in mediation for all purposes. Thus, statements or
conduct in mediation could be admissible where relevant on some
nonsubstantive issues such as bias or prejudice of a witness, credibility of a
witness and the like.40
Statements and conduct in court-sponsored
compulsory divorce mediation continue to be subject to a broader protection
under Rule 408(b).
The proposed amendment does not address the discoverability of
statements or conduct during mediation, nor does it seek to impose any sort
of obligation of confidentiality upon any participant in the mediation process.
The scope of discovery is within the purview of the civil and criminal rules
committees. Confidentiality is an issue for the Legislature or an authority
regulating mediators and is not a proper issue for the Evidence Rules
Committee.
Advisory Committee Note
(December 2009)
This amendment makes major changes in both Rule 408(a) and in Rule
408(b). Rule 408(a) is amended to follow a corresponding change in [Federal
Rule of Evidence] 408 and to close a loophole in the prior version. The rule as
amended provides that statements and conduct in settlement negotiations
that are rendered inadmissible on any substantive issue between the parties
may not be used to impeach a witness through prior inconsistent statement or
The language of this paragraph is outdated. The Rules now include a mediator’s privilege
(Rule 514).
39
40 Inadmissible statements are no longer allowed for impeachment purposes.
57
contradiction. Such statements or conduct would not necessarily be
inadmissible when offered for some other purpose.
Rule 408(a) continues to refer to mediation despite the expansion of
Rule 408(b) in order to make clear that the fact that a statement is made
during mediation does not deprive it of its character as a statement in
compromise negotiations or affect its inadmissibility under Rule 408(a).
Rule 408(b) has been rewritten and expanded. The new Rule 408(b)
applies not only to court ordered domestic relations mediations, but to all
mediations undertaken to comply with any statute, court rule, administrative
agency rule. It also covers mediations in which the parties have been referred
to mediation by any court, administrative agency or arbitrator, regardless of
whether such mediations are provided for by rule. Finally, it covers
mediations in which the parties have agreed in writing or electronically
(e-mail) to mediate with an expectation of confidentiality. These would
include mediations covered by typical mediations agreements with
confidentiality clauses.
Statements of either parties or mediator in all mediations covered by
Rule 408(b) are inadmissible for all purposes other than to prove fraud or
duress to invalidate the mediation result both in the proceeding being
mediated and in any other proceeding between the parties to the mediation
that involves the same subject matter.41 The rule is designed to encourage
parties to speak openly and freely in mediation by assuring them that their
statements will not be usable against them in the case being mediated or in
any other case between the same parties with the same subject matter. On the
other hand, revised Rule 408(b) does not render statements in mediation
inadmissible in proceedings involving third parties, such as criminal
proceedings, or even in proceedings between the mediating parties that do
not involve the subject matter of the mediation. Nor does it insulate
statements in mediation from civil discovery.
41 The Rule now allows for the use of statements to prove fraud, duress, or something else that
would invalidate the mediation result, or to prove existence of an agreement.
58
RULE 409. OFFERS TO PAY MEDICAL AND SIMILAR EXPENSES
Evidence of furnishing, promising to pay, or offering to pay medical, hospital,
or similar expenses resulting from an injury is not admissible to prove liability
for the injury.
Maine Restyling Note [November 2014]
Maine Rule 409 and Federal Rule 409 are substantively identical, and
therefore the Advisory Committee recommends adoption of the language of
the restyled Federal Rule.
Federal Advisory Committee Note
The language of Rule 409 has been amended as part of the restyling of
the Evidence Rules to make them more easily understood and to make style
and terminology consistent throughout the rules. These changes are intended
to be stylistic only. There is no intent to change any result in any ruling on
evidence admissibility.
__________________________________________________________________
Advisers’ Note to former M.R. Evid. 409
(February 2, 1976)
This rule is generally in accord with Maine law. Lyle v. Bangor
& Aroostook Ry., 150 Me. 327, 331, 110 A.2d 584, 587 (1954). The rule does
not supersede or conflict in any way with 24-A M.R.S.A. § 2426, which
provides that no payment on account of bodily injury or death or property
damage shall constitute an admission of liability or waiver of defense, or be
admissible in evidence in an action unless pleaded as a defense; and that any
such payment shall be credited upon any settlement or judgment in an action
against the payor or his insurer.
RULE 410. PLEAS, PLEA DISCUSSIONS, AND RELATED STATEMENTS
In a civil or criminal case, evidence of the following is not admissible against
the person who made the plea or participated in the plea discussions:
(a)
A guilty plea that was later withdrawn;
59
(b)
A nolo contendere plea;
(c)
A statement made in connection with a guilty or nolo contendere plea or
during a proceeding on either of those pleas under Maine Rule of
Criminal Procedure 11 or a comparable Federal or state procedure; or
(d)
An offer to plead guilty or nolo contendere.
Maine Restyling Note [November 2014]
Maine’s Rule 410 is structurally much simpler and less comprehensive
than the current version of the federal counterpart. The proposed restyled
Maine Rule attempts to adopt the federal structure but retain the smaller and
simpler scope of the Maine Rule. The various exceptions in the Federal Rule
and the references to plea negotiations appear to go substantively beyond the
Maine Rule. Even though they may have merit, consideration of such changes
is beyond the scope of the restyling project.
Federal Advisory Committee Note
The language of Rule 410 has been amended as part of the restyling of the
Evidence Rules to make them more easily understood and to make style and
terminology consistent throughout the rules. These changes are intended to
be stylistic only. There is no intent to change any result in any ruling on
evidence admissibility.
__________________________________________________________________
Advisers’ Note to former M.R. Evid. 410
(February 2, 1976)
There is no Maine case dealing with the admissibility of a withdrawn
plea. In Massachusetts a guilty plea to drunken driving was later withdrawn
and the defendant was acquitted at trial, but the guilty plea was held
admissible in an action for personal injuries. Morrissey v. Powell, 304 Mass.
268, 23 N.E.2d 411 (1939). Cases elsewhere are in conflict.
Exclusion of offers to plead guilty makes plea bargaining in a criminal
case somewhat easier.
60
This rule is concerned only with withdrawn pleas. An accepted plea of
nolo contendere is not admissible in a civil action. State v. Fitzgerald, 140 Me.
314, 37 A.2d 799 (1944).
The Federal Rule adds a final sentence reading: “This rule shall not
apply to the introduction of voluntary and reliable statements made in court
on the record in connection with any of the foregoing pleas or offers where
offered for impeachment purposes or in a subsequent prosecution of the
declarant for perjury or false statement.”42 The primary reason for not
including it is that the use of such a statement “for impeachment” raises again
the ineffectiveness of a limiting instruction. The jury would almost certainly
consider it as an admission of guilt.
RULE 411. LIABILITY INSURANCE
Evidence that a person was or was not insured against liability is not
admissible to prove whether the person acted negligently or otherwise
wrongfully.
Maine Restyling Note [November 2014]
Maine Rule 411 is substantially identical with the first sentence of
Federal Rule 411. The second sentence of the original Federal Rule 411 was
omitted in the Maine rule as redundant and unnecessary. See, e.g., Rule
404(b). But see Rule 407. The proposed restyled Maine Rule follows the first
sentence of the restyled Federal Rule.
Federal Advisory Committee Note
The language of Rule 411 has been amended as part of the general
restyling of the Evidence Rules to make them more easily understood and to
make style and terminology consistent throughout the rules. These changes
are intended to be stylistic only. There is no intent to change any result in any
ruling on evidence admissibility.
42 This language has changed, and the Federal Rule does not appear to allow impeachment use
anymore. Federal Rule of Criminal Procedure 11 and its notes do not seem to clarify the situation.
61
Rule 411 previously provided that evidence was not excluded if offered
for a purpose not explicitly prohibited by the Rule. To improve the language
of the Rule, it now provides that the court may admit evidence if offered for a
permissible purpose. There is no intent to change the process for admitting
evidence covered by the Rule. It remains the case that if offered for an
impermissible purpose, it must be excluded, and if offered for a purpose not
barred by the Rule, its admissibility remains governed by the general
principles of Rules 402, 403, 801, etc.
__________________________________________________________________
Advisers’ Note to former M.R. Evid. 411
(February 2, 1976)
The exclusion of evidence of liability insurance or the lack of it on the
issue of fault is in accord with Maine law. St. Pierre v. Houde, 269 A.2d 538
(Me. 1970). The inference that an insured person would on that account drive
carelessly is too weak. The Maine policy against injection of the fact of
insurance into an action is a strong one. See M.R.C.P. 17(a) which, despite the
requirement that an action must be prosecuted in the name of the real party
in interest, allows a subrogated insurer to sue in the name of the assured. See
also Allen v. Pomroy, 277 A.2d 727 (Me. 1971). Numerous cases apply the
general rule that evidence of insurance in negligence cases is “immaterial,
prejudicial, and inadmissible.” Deschaine v. Deschaine, 153 Me. 401, 407,
140 A.2d 746, 749 (1958). See also Downs v. Poulin, 216 A.2d 29, 33 (1966);
Duguay v. Pomerleau, 299 A.2d 914 (Me. 1973) (stating the general standard
that reference to insurance is to be avoided unless extraordinary
circumstances require it). The rule does not compel the exclusion of evidence
of insurance against liability when it is relevant for another purpose, such as
proof of agency, ownership or control, or bias or prejudice of a witness.
RULE 412. SEX-OFFENSE CASES: THE VICTIM’S
SEXUAL BEHAVIOR OR PREDISPOSITION
(a)
Prohibited uses. The following evidence is not admissible in a civil or
criminal proceeding involving alleged sexual misconduct:
(1)
Evidence offered to prove that an alleged victim engaged in other
sexual behavior; or
62
(2)
(b)
Evidence offered
predisposition.
to
prove
an
alleged
victim’s
sexual
Exceptions.
(1)
(2)
Criminal cases. The court may admit the following evidence in a
criminal case:
(A)
Evidence of specific instances of an alleged victim’s sexual
behavior, if offered to prove that someone other than the
defendant was the source of semen, injury, or other physical
evidence;
(B)
Evidence of specific instances of an alleged victim’s sexual
behavior with respect to the person accused of the sexual
misconduct, if offered by the defendant to prove consent or
if offered by the prosecutor; and
(C)
Evidence whose exclusion would violate the defendant’s
constitutional rights.
Civil cases. In a civil case, the court may admit evidence of specific
instances of sexual behavior by an alleged victim offered to prove
an alleged victim’s sexual behavior or sexual predisposition if its
probative value substantially outweighs the danger of harm to any
victim and of unfair prejudice to any party.
Maine Restyling Note [November 2014]
Maine’s Rule 412 has generally followed its federal counterpart, but has
differed in some respects in both structure and substance. The main
differences are the ban on reputation and opinion evidence in the Maine Rule
and the omission in the Maine Rule of any special procedure to determine
admissibility. The proposed restyled version follows the federal version more
closely, and deals with the prohibition of reputation and opinion evidence by
making it clear that the only kind of evidence of sexual behavior that can be
admitted under the Rule is evidence of specific acts that meets the
requirements of subsection (b). The restyled Maine Rule follows the existing
Rule in omitting any special procedure for determining admissibility.
63
Federal Advisory Committee Note
The language of Rule 412 has been amended as part of the restyling of
the Evidence Rules to make them more easily understood and to make style
and terminology consistent throughout the rules. These changes are intended
to be stylistic only. There is no intent to change any result in any ruling on
evidence admissibility.
__________________________________________________________________
Advisory Committee Note
(February 1, 1983)
This Rule prohibits any evidence of reputation or opinion of a victim’s
character in a prosecution for rape and other serious sexual offenses. It also
severely restricts the use of evidence of specific instances of a victim’s prior
sexual behavior when offered by the defense. The rule is subject to the policy
of Rule 402 on evidence constitutionally required to be admitted.
The rule is patterned on new Federal Rule 412 which was enacted by
Congress to curb perceived abuses in the use of evidence concerning the past
sexual behavior of a victim of rape or sexual abuse. In some courts, wide
latitude has been allowed defense counsel to introduce such evidence to
show:
A. Lack of overall credibility of the victim, particularly on the issue of
consent; and
B. An actual inference that the victim did consent on the specific
occasion for which the defendant is charged.
This does not seem to have been a serious problem in Maine where such
testimony has been generally excluded. Some of the Maine cases, however,
contain dicta that could be read to support admissibility of reputation
evidence on credibility and perhaps on consent. See, e.g., State v. McFarland,
369 A.2d 227 (Me. 1977); State v. Dipietrantonio, 152 Me. 41 (1956); State v.
Flaherty, 128 Me. 141 (1929). The danger in the admission of such evidence
is the likelihood that it will provoke moral and emotional reactions in the trier
of fact increasing the risk of unfair prejudice. For this reason, Federal Rule
64
412 has provided for an elaborate procedure designed to assess the risk of
unfair prejudice before admission of such evidence, even to the extent
permitted by the rule. In Maine it is not necessary to provide any specific
procedure in light of the trial judge’s power to control the presentation of the
proof so as to minimize prejudice and the overall requirements of Rule 403.
Prosecutors, defense counsel, and trial judges should be alert to the fact that
Rule 403 does apply even to evidence made specifically admissible by Rule
412 (or any other rule). Where the prejudicial effect of such evidence
outweighs the probative value, such evidence must be excluded under Rule
403.
“Sexual behavior” is not specifically defined in the rule, but would
include the behavior described by 17-A M.R.S.A. Section 251 (B,43 C and D).
The word “past” in Rule 412 refers to occasions prior to trial and other
than the occasions involved in the charges, whether prior or subsequent
thereto in time.
Rule 412(b)(1) would not affect the result in State v. Henderson,
158 Me. 364 (1958), upholding the admissibility of evidence of the victim’s
prior intercourse with persons other than the accused to attack
“corroborating” evidence of the victim’s pregnancy offered by the prosecution.
Rule 412(b)(2) only applies to criminal prosecutions where consent of
the victim is an issue.
Rule 412 does not prohibit evidence of a statement by the victim about
her past sexual conduct when the statement is relevant as a statement for
impeachment or some other proper purpose. See, e.g., State v. Nelson,
399 A.2d 1327 (Me. 1979) (rape victim’s prior inconsistent statements about
her past sexual relations admissible to impeach).
The prosecution may also “open the door” to evidence otherwise
inadmissible under this rule by offering evidence of the victim’s lack of sexual
experience or chastity on direct. See State v. Gagne, 343 A.2d 186 (Me. 1975).
43 Subsection (B) of 17-A M.R.S. § 251 has been repealed.
65
[Note change by 1995 Amendment44] Rule 412 does not automatically
render admissible evidence of prior sexual behavior in prosecutions for
unlawful sexual contact, other criminal prosecutions, or civil cases.
Admissibility of such evidence is governed by the other rules on relevancy and
impeachment. See State v. Davis, 406 A.2d 900 (Me. 1979) (unlawful sexual
contact-evidence of complainant’s preoccupation with pulling down the pants
of others was relevant to the complainant’s state of mind and to rebut the
inference that a child of her tender years would be too innocent of sexual
matters to fabricate a charge).
Obviously Rule 412 applies to the prosecution as well as to the defense.
Thus unless a victim’s lack of chastity is properly raised by the defense, the
prosecution may not introduce evidence of the victim’s chastity to support an
inference of lack of consent.
Advisory Committee Note
(1995 Amendment)
This amendment is to conform the terms of the Rules to changes in
definition of crimes in the Maine Criminal Code. By 1989 amendment, the
crimes of rape and gross sexual misconduct, as earlier defined by the Maine
Criminal Code (17-A M.R.S.A. §§ 252, 253) were redefined and combined into
the crime of gross sexual assault (17-A M.R.S.A. §253). The policies which
made Rule 412 applicable to the crimes as earlier defined remain valid with
respect to the redefined and renamed offense.
This amendment also amends Evidence Rule 412 to cover prosecutions
for unlawful sexual contact.
Advisory Committee Note
(June 16, 2000 Amendment)
The amendment to Rule 412 is designed to broaden the rule to cover
civil as well as criminal cases. The formulation of the rule follows the current
Maine Rule 412 rather than the new Federal Rule 412 because 1) the Maine
rule has worked well to date, and 2) the structure of the Maine rule seems to
lend itself better to application to civil as well as criminal cases.
44 Also, note the change by the 2000 Rules amendment.
66
The amended rule would apply to any case, civil or criminal “in which a
person is accused of sexual misconduct toward an individual.” Cases involving
sexual misconduct but not directed toward an individual (pornography?)
would not be covered by either the language or the rationale of this rule. The
term “sexual misconduct” is intended to include all forms of civil or criminal
misconduct which involve sexual activity or verbal references to intimate
sexual activity including sexual harassment, exposure, telephone sexual
harassment, intentional infliction of emotional distress. It is not intended to
include misconduct not involving sexual activity or verbal references to
intimate sexual activity but which is directed at members of a sexually defined
group such as some forms of “hate crimes.”
“Sexual behavior” is intended to include all forms of intimate sexual
activity, whether or not consensual, as well as intimate conversation involving
a sexual relationship or sexual gratification.
In both civil and criminal cases reputation or opinion evidence of the
sexual character of an alleged victim would be forbidden. There does not
seem to be any more reason for this kind of evidence in civil cases than there
is in criminal cases.
In criminal cases the rule on evidence of specific instances of conduct
would remain “as is.” Evidence “constitutionally required” to be admitted (e.g.
[State v.] Jacques, 558 A.2d 706 (1989)) is now included among the
enumerated exceptions as is the case with the corresponding federal rule.
Subdivision (c)45 proposes a somewhat broader rule for civil cases,
requiring that the proponent of the evidence satisfy the judge that the
probative value of the evidence on a controverted issue outweighs the danger
of unfair prejudice, etc. Both the weight (probative value) and the focus (on a
controverted issue) would be involved in the determination of admissibility.
To cover the possibility that in a civil case an individual whose prior sexual
conduct would be protected by this rule might not be the other party, the
concept of “unwarranted harm to the individual” has been included in the
45 Now subsection (b)(2).
67
balancing formula.46 This formulation erects a meaningful threshold to the
use of this kind of evidence in civil cases, but does not forbid it entirely or
restrict its use to artificial categories or for specific inferences. The threshold
of admissibility under Rule 412 specifies that the evidence can only be
admitted if the court find that the probative value of the evidence exceed the
danger of unfair prejudice. This is contrasted to the threshold under Rule 403
whereby relevant evidence is admitted unless the danger of unfair prejudice
substantially outweighs the probative value.
The same kind of reasoning employed by the Law Court in
administering the “constitutionally required” exception to criminal Rule 412
could be applied to administering Rule 412(c) in civil cases. Thus, where the
proponent of evidence of prior sexual behavior of a victim could articulate an
inference from the prior sexual behavior of the victim which would have a
logical bearing directly on a controverted issue in the case, the evidence
would be likely admissible in the absence of serious prejudice, confusion, etc.
The court would ordinarily be expected to articulate the relevant inference for
which the evidence would be admissible and how the evidence supported the
inference. Such evidence can also be admitted in both civil and criminal cases
if the opposing party “opens the door.”
This rule applies in civil cases to issues of both liability and damages.
Rule 403 continues to give the court power to exclude evidence subject to
Rule 412 based on considerations such as unnecessary presentation of
cumulative evidence and waste of time.
This rule would not restrict evidence of sexual activity of a party to a
case other than one in which a person is accused of “sexual misconduct”
toward an individual. Thus it would not apply to the defense of truth in a libel
case or to proof of character in a custody case. These cases would continue to
be governed by Rules 403-405.
The proposed revised rule, as the current Maine Rule 412, does not spell
out a special procedure for admissibility determinations. Confiding this
matter to the good sense of court and counsel has worked well to date.
46 The language is now “the danger of harm to any victim and of unfair prejudice to any party.”
68
RULE 413. PROTECTION OF PRIVACY IN COURT PROCEEDINGS
(a)
Evidence of the identity, address, employment or location of any person
must be excluded if such person requests the exclusion of such evidence
and:
(1)
The court is notified that there is a court order in effect that
prohibits contact between such person and another person; or
(2)
It is alleged under oath, orally or in writing, that such person’s
health, safety or liberty would be jeopardized by the disclosure of
such information, and the court determines that disclosure of
such information would jeopardize such person as alleged unless
the court finds that such evidence is of a material fact essential to
the determination of the proceeding.
(b)
The court must conduct all proceedings to determine the admissibility
of evidence under this rule in a manner so as not to disclose the
information sought to be excluded, unless the court finds that a party’s
right to due process and a fair hearing would be violated if the
information is not disclosed.
(c)
If the court determines that information otherwise inadmissible under
this Rule must be admitted as evidence of a material fact essential to the
determination of the proceedings, the court must receive such evidence
in camera. In child protective proceedings pursuant to Title 22, Chapter
1071 of the Maine Revised Statutes, such evidence must also be received
outside of the presence of any person, and the attorney of any person,
who:
(d)
(1)
Is subject to a court order prohibiting contact with the person
requesting exclusion of the evidence; or
(2)
Constitutes a risk to the health, safety, or liberty of the person
requesting exclusion of the evidence.
Persons who may object to the admission of evidence under this rule
include:
(1)
Parties to the proceeding;
69
(2)
Parties’ attorneys;
(3)
A guardian ad litem;
(4)
Any person called as a witness;
(5)
A juror; and
(6)
Any person, who, although not a witness or party, is a subject of
the proceeding, such as a child or a protected person.
Maine Restyling Note [November 2014]
Federal Rules 413–415 have not been adopted in Maine. In place of
Federal Rule 413, Maine has adopted Maine Rule 413 pursuant to legislative
directive. Because there is no Federal Rule with which to maintain
consistency, restyling has been limited to applying the federal restyling
conventions to the Maine Rule as adopted.
__________________________________________________________________
Advisory Committee Note
2007
Rule 413 implements the legislative directive of 4 M.R.S. § 8-B and
22 M.R.S. § 4007(1A)47 enacted by Chapter 351 of the Public Laws of 2007.
The Rule makes evidence of the identity, employment, address, or location of
any person inadmissible when there is alleged to be a court order in existence
prohibiting contact between that person and another person, or when the
court determines that disclosure of the identifying information might
jeopardize the person’s health, safety, or liberty, unless the court finds that the
evidence is necessary to determine the issues in the proceeding.
The court is required to conduct proceedings to determine admissibility
under the rule in such a manner so as not to disclose the information at issue
unless such disclosure is necessary as a matter of due process.
47 Now at 22 M.R.S. § 4007(1-A) (2014).
70
Even if the court determines that the evidence should be admitted as
necessary to determine an issue in the proceeding, the information is to be
received in camera, and, in the case of child protective proceedings, outside
the presence of the party or person from whom harm is feared, and outside
the presence of his or her attorney.
Objection may be raised under this rule by parties, witnesses, their
attorneys, and other persons affected by the proceedings.
Further prohibitions on disclosure, recordkeeping, etc. are the province
of others.
ARTICLE V. PRIVILEGES
RULE 501. PRIVILEGES RECOGNIZED ONLY AS PROVIDED BY LAW
Unless an applicable state or federal constitution, statute, or rule provides
otherwise, no person has a privilege to:
(a)
Refuse to be a witness;
(b)
Refuse to disclose any matter;
(c)
Refuse to produce an object or writing; or
(d)
Prevent another from testifying as a witness, from disclosing any
matter, or from producing an object or writing.
Maine Restyling Note [November 2014]
The Federal Rules of Evidence do not set forth privileges, except for the
Attorney-Client Privilege in Federal Rule 502, and therefore the Maine Rules
of Evidence 501–514 are entirely different from Article V of the Federal Rules.
The Maine Rules in this Article have each been restyled in accordance with the
federal restyling conventions, and, as part of this process, the Committee has
proposed some minor nonsubstantive changes to clarify the Rules.
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Maine Rule 501 has been restyled in accordance with the federal
restyling conventions, and, as part of this process, the Committee has
proposed some minor, nonsubstantive changes to clarify the Rule.
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Advisers’ Note to former M.R. Evid. 501
(February 2, 1976)
This rule limits privileges to those provided by Constitution or statute
or by rules promulgated by the Supreme Judicial Court. This means that
common law privileges, such as that between attorney and client, must be
included in these rules. On the other hand, a privilege created by statute is
preserved without any need to deal with it. No attempt is made to incorporate
the constitutional provisions relating to admission or exclusion of evidence.
They do not readily lend themselves to codification, and the best point of
reference is the provisions themselves and the decisions construing them.
The most familiar constitutional privilege is the privilege against selfincrimination. Other concepts having constitutional dimension are the
required exclusion of involuntary confessions, confessions made by one
deprived of the right to counsel, and the fruits of unlawful search and seizure.
There are also various federal and state immunity statutes to protect persons
compelled to testify. A degree of secrecy of grand jury deliberations is
provided by M.R. Crim. P. 6(e).
The Court did not use its rulemaking power to create new privileges.
Most evidentiary rules relate to what happens in the courtroom and are
designed to facilitate ascertainment of the truth. Privileges, on the other hand,
are designed to shut out the truth so as to protect relationships of sufficient
social importance to assure their confidentiality. This judgment based on
social policy is one which is best made by the elected representatives of the
people.
Where there is a common law privilege, the Court has felt free in
codifying it to fill gaps for which there is no precise Maine authority.
Similarly, with respect to statutory privileges, such as the clergyman-penitent
privilege, the Court has altered the statutory wording to fit the format of the
rules and prescribed details not in the statute but consistent with the
legislative policy.
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The changes that have been made are set forth in the Notes to the
several privileges that follow.
The Federal Rules confine the treatment of privilege to Rule 501, which
provides (1) that in federal cases privileges shall be governed by the
principles of the common law as they may be interpreted in the light of reason
and experience (the language48 of F.R.Crim.P. 26); and (2) that in actions
where state law supplies the rule of decision privileges shall be determined in
accordance with state law.
The rules that follow are based in a large measure on the rules with
respect to privilege promulgated by the Supreme Court, with some changes
made in the Uniform State Law.
RULE 502. LAWYER-CLIENT PRIVILEGE
(a)
Definitions. As used in this rule:
(1)
A “client” is:
(A)
A person;
(B)
A public officer;
(C)
A corporation;
(D)
An association; or
(E)
Any other organization or entity, public or private;
To whom a lawyer renders professional legal services, or who
consults with a lawyer with a view toward obtaining professional
legal services from the lawyer.
(2)
A “representative of the client” is a person who has authority on
behalf of the client to:
48 Former language.
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(3)
(A)
Obtain professional legal services; or
(B)
Act on advice rendered as part of professional legal services.
A “lawyer” is:
(A)
or
A person authorized to practice law in any state or nation;
(B) A person whom the client reasonably believes to be
authorized to practice law in any state or nation.
(4)
A “representative of the lawyer” is a person who is employed by
the lawyer to assist the lawyer in the rendition of professional
legal services.
(5)
A communication is “confidential” if it is made to facilitate the
provision of legal services to the client and is not intended to be
disclosed to any third party other than those to whom the client
revealed the information in the process of obtaining professional
legal services.
(b) General rule. A client has a privilege to refuse to disclose, and to
prevent any other person from disclosing, the contents of any confidential
communication:
(1)
Between the client or client’s representative and the client’s
lawyer or lawyer’s representative;
(2)
Between the lawyer and the lawyer’s representative;
(3)
By the client, the client’s representative, the client’s lawyer, or the
lawyer’s representative to a lawyer representing another party in
that pending action concerning a matter of common interest in a
pending action;
(4)
Between the client’s representatives, or between the client and his
or her representative; or
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(5)
(c)
Who may claim the privilege.
(1)
(2)
(d)
Among the client’s lawyers and those lawyers’ representatives.
The privilege may be claimed by:
(A)
The client;
(B)
The client’s guardian or conservator;
(C)
The client’s personal representative, if the client is
deceased; or
(D)
An officer, manager, trustee, or other agent authorized to
act on behalf of a legal entity—such as a corporation,
limited liability company, partnership, or trust—in legal
matters or in obtaining the services of, or communicating
with, an attorney for the entity, whether or not the entity
still exists.
There is a presumption that the person who was the lawyer or
lawyer’s representative at the time of the communication in
question has authority to claim the privilege on the client’s behalf.
Exceptions.
exceptions:
The lawyer-client privilege is subject to the following
(1)
Furtherance of Crime or Fraud. The lawyer-client privilege does
not apply if the client sought or obtained the lawyer’s services to
help a person plan or commit what the client knew or reasonably
should have known was a crime or fraud.
(2)
Claimants Through Same Deceased Client. The lawyer-client
privilege does not apply to any communication relevant to an
issue between parties who claim through the same deceased
client.
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(3)
Breach of Duty by Lawyer or Client. The lawyer-client privilege
does not cover any communication relevant to an issue of the
lawyer’s breach of a duty to the client, or of the client’s breach of a
duty to the lawyer.
(4)
Document Attested by Lawyer. The lawyer-client privilege does
not apply to a communication relevant to an issue about a
document to which the lawyer is an attesting witness.
(5)
Joint Clients. When a communication is offered in an action
between clients who were represented jointly by the lawyer, the
lawyer-client privilege does not protect that communication if it is
relevant to a matter of common interest between clients, and if
the communication was made by any one of the clients to the
lawyer retained or consulted as part of a joint representation.
(6)
Public Officer or Agency. The lawyer-client privilege does not
apply to communications between a public officer or agency and
its lawyers. However, if the court determines that disclosure will
seriously impair the public officer’s or agency’s ability to process
a claim or carry out a pending investigation, litigation, or
proceeding in the public interest, the lawyer-client privilege will
apply to communications concerning the pending investigation,
claim, or action.
Maine Restyling Note [November 2014]
Maine Rule 502 has been restyled in accordance with the federal
restyling conventions, and, as part of this process, the Committee has
proposed some minor, nonsubstantive changes to clarify the Rule.49
__________________________________________________________________
When a Rule 502 question is addressed as an ethical issue or obligation, Rule 1.6 of the Maine
Rules of Professional Conduct (Confidentiality of Information) should also be reviewed.
49
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Advisers’ Note to former M.R. Evid. 502
(February 2, 1976)
There is nothing in this rule that is believed to be contrary to any Maine
decision, but there are several matters on which Maine case law is silent.
Subsection (a)(2) defines “representative of the client” as one having
authority to obtain legal services and50 to act on advice rendered pursuant
thereto on behalf of the client. This is an adoption of the so-called “control
group” test. It narrows the privilege, confining it to communications by
persons of sufficient authority to make decisions for the client. It would not
protect communications from lower-level employees to lawyers to enable
them to advise a decision-making superior. To illustrate by an example, if a
bank teller seeks advice from the bank’s attorney whether to accept as
sufficient a particular endorsement, the communication would presumably be
privileged because the teller would have authority to act on the advice. If,
however, he gave the attorney a statement about a customer slipping on a
foreign object as he was presenting a check to be cashed, there would be no
privilege. This would be true even though his decision-making superiors
directed him to make the statement.
The distinction between a privilege and the work product rule
embodied in M.R.C.P. 26(b)(3) should be emphasized. If there is a privilege,
disclosure cannot be required either in discovery proceedings or at trial. The
work product rule gives a qualified protection to unprivileged information
prepared in anticipation of trial, which can be overcome by a showing of
substantial need. It has nothing to do with admissibility at trial.
Subsection (d)(6) denies a privilege between public officers or agencies
and their lawyers unless the communication concerns a pending matter and
the court determines that disclosure would seriously impair the conduct of
50 The restyled version of the Rule, as well as the most recent former version of the Rule, utilizes
“or” rather than “and.” This difference seems inconsistent with the paragraph. The 1983
Amendment Note says the control group test is maintained, so it is unclear when or why the word
“or” was substituted for “and,” and whether it changes the meaning of this part of the Rule.
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the proceeding in the public interest.51 No Maine law on the subject has been
found.
Advisory Committee Note
(February 1, 1983)
In Upjohn v. U.S., 449 U.S. 383, 101 S.Ct. 677 (1981), the United States
Supreme Court disapproved of the “control group test” in federal court. The
Court declined to attempt to delineate any substitute. Although the control
group test is law in a minority of jurisdictions, it appears that there is no
consensus in the other jurisdictions as to the best rule to govern the scope of
the attorney/client privilege as applied to corporate clients. After carefully
reconsidering the matter in 1982, the Advisory Committee has recommended
retention of the control group test without change.52
It should be reemphasized that the privilege conferred by Rule 502 is
independent of the “work product” doctrine which gives discovery protection
to certain kinds of material developed by or under the supervision of an
attorney in preparation for litigation.
In many cases informational
communications from employees outside the control group can be protected
from civil discovery by the work product doctrine.
RULE 503. HEALTH CARE PROFESSIONAL, MENTAL HEALTH
PROFESSIONAL, AND LICENSED COUNSELING PROFESSIONAL
PATIENT PRIVILEGE
(a)
Definitions. As used in this rule:
(1)
A “patient” is a person who consults, is examined by, or is
interviewed by:
51 Rule 502(d)(6) has since been amended to provide exceptions to the “no privilege” statement.
Rule 502(d)(6) presently states: “The lawyer-client privilege does not apply to communications
between a public officer or agency and its lawyers. However, if the court determines that disclosure
will seriously impair the public officer’s or agency’s ability to process a claim or carry out a pending
investigation, litigation, or proceeding in the public interest, the lawyer-client privilege will apply to
communications concerning the pending investigation, claim, or action.”
52 See footnote above about “or” versus “and” language.
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(2)
(A)
A health care professional;
(B)
A mental health professional; or
(C)
A licensed counseling professional.
A “health care professional” is:
(A)
A person authorized to practice as a physician;
(B)
A licensed physician’s assistant; or
(C)
A licensed nurse practitioner;
Under Maine law, or under substantially similar law of any other
state or nation, while that person is practicing the health care
profession for which he or she is licensed.
(3)
(4)
A “mental health professional” is:
(A)
A health care professional engaged in the diagnosis or
treatment of a mental or emotional condition, including
alcohol or drug addiction;
(B)
A person licensed or certified as a psychologist or
psychological examiner under Maine state law or under
substantially similar law of any state or nation while
practicing as such;
(C)
A person licensed as a clinical social worker under Maine
state law or under substantially similar law of any state or
nation while practicing as such.
A “licensed counseling professional” is:
(A)
A “licensed professional counselor”;
(B)
A “licensed clinical professional counselor”;
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(C)
A “licensed marriage and family therapist” or;
(D)
A “licensed pastoral counselor”;
Who is licensed to diagnose and treat mental health disorders,
intra- and inter-personal problems, or other dysfunctional
behavior of a social and spiritual nature under 32 M.R.S. §13858,
or under a substantially similar law of any other state or nation,
while that person is practicing the counseling profession for
which he or she is licensed.
(5)
(b)
A communication is “confidential” if it was not intended to be
disclosed to any third persons, other than:
(A)
Those who were present to further the interests of the
patient in the consultation, examination, or interview;
(B)
Those who were reasonably necessary to make the
communication; or
(C)
Those who are participating in the diagnosis and/or
treatment under the direction of the health care, mental
health, or licensed counseling professional. This includes
members of the patient’s family.
General rule. A patient has a privilege to refuse to disclose, and to
prevent any other person from disclosing, confidential communications
made for the purpose of diagnosing or treating the patient’s physical,
mental, or emotional condition, including alcohol or drug addiction,
between or among the patient and:
(1)
The patient’s health care professional, mental health professional,
or licensed counseling professional; and
(2)
Those who were participating in the diagnosis or treatment at the
direction of the health care, mental health, or licensed counseling
professional. This includes members of the patient’s family.
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(c)
Criminal defendant’s privilege. When the court orders that the
defendant’s mental condition be examined in order to determine
criminal responsibility, the defendant has a privilege to refuse to
disclose, and to prevent others from disclosing, any communication
made during that examination that concerns the offense charged.
(d)
Who may claim the privilege.
(1)
The privilege may be claimed by:
(A)
The patient;
(B)
The patient’s guardian or conservator; or
(C) The patient’s personal representative, if the client is
deceased.
(2)
(e)
There is a presumption that the person who was the health care,
mental health, or licensed counseling professional at the time of
the communication in question has authority to claim the
privilege on behalf of the patient.
Exceptions. The privilege for communications between a patient and a
health care professional, a mental health care professional, or a licensed
counseling professional is subject to the following exceptions:
(1)
Proceedings for hospitalization. The privilege under this rule does
not apply to communications relevant to an issue in proceedings
to hospitalize the patient for mental illness if the professional has
determined in the course of diagnosis or treatment that the
patient needs to be hospitalized.
(2)
Examination by order of court. If the court orders an evaluation of
a patient’s physical, mental, or emotional condition, whether the
patient is a party or a witness, the privilege does not apply to
communications made during the course of that evaluation, unless
the court orders otherwise. However, a criminal defendant’s
communications during the course of a court-ordered evaluation
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or examination are still privileged to the extent provided by
section (c) of this rule.
(3)
Condition an element of claim or defense. The privilege under this
rule does not apply to communications relevant to an issue of a
physical, mental, or emotional condition of the patient if:
(A) The condition is an element of the patient’s claim or
defense; or
(B)
(4)
The condition is an element of the claim or defense of:
(i)
Any party claiming through or under the patient;
(ii)
Any party claiming because of the patient’s condition;
(iii)
Any party claiming as a beneficiary of the patient; or
(iv)
Any party claiming through a contract to which the
patient is or was a party.
After the patient’s death. The privilege does not apply after the
patient’s death in any proceeding in which any party puts the
patient’s physical, mental, or emotional condition in issue.
Maine Restyling Note [November 2014]
Maine Rule 503 has been restyled in accordance with the federal
restyling conventions, and, as part of this process, the Committee has
proposed some minor, nonsubstantive changes to clarify the Rule.
__________________________________________________________________
Advisers’ Note to former M.R. Evid. 503
(February 2, 1976)
There was no doctor-patient privilege at common law. There is at the
present time a statutory privilege. P.L. 1973, c. 625, § 218. It is a dubious
protection to the confidentiality of the relationship, since disclosure would be
required “when a court in the exercise of sound discretion deems such
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disclosure necessary to the proper administration of justice.” Under this
formulation no clear assurance to the patient could be given before the
communication was made that it would not be ordered to be disclosed.
The rule as promulgated by the Supreme Court did not provide a
general doctor-patient privilege, but did define “psychotherapist” so as to
include any physician while engaged in the diagnosis or treatment of a mental
or emotional condition. The American Medical Association objected to the
rejection of the privilege at hearings on the House bill. It did not advocate an
unrestricted privilege. It was satisfied that no protection should be given to
communications relevant to the patient’s condition in an action where the
condition was an element of his claim or defense. The Court has adopted a
physician-patient privilege in the limited form recommended by the AMA.
This is comparable to the exception in the Maine statute of actions “when the
physical or mental condition of the patient is at issue.” Elimination of the
open-ended denial of the privilege at the discretion of the court does not
sacrifice any value of importance to the administration of justice, and it
relieves the uncertainty in the statute as to the extent of the confidentiality.
The rule incorporates the statutory privileges of the psychologist or
psychological examiner, 32 M.R.S.A. § 3815,53 added by P.L. 1968, c. 544, § 82,
and the psychiatrist, 16 M.R.S.A. § 60,54 added by P.L. 1973, c. 481. It has
omitted the statutory requirement that a psychiatrist must be “board
certified”. In fact, board certification is not required as a condition of a
psychiatrist’s right to practice. The statute on psychologists and psychological
examiners has no such requirement. There is no apparent justification for the
distinction, nor does it seem right to put upon the patient the burden of
discovering whether the psychiatrist is board certified in order to know
whether his communications are privileged.
Other changes from the statutes in the rule correct statutory
deficiencies (1) declaring “communications” privileged without reference to
confidentiality, (2) not including communications to a person reasonably
believed to be a psychotherapist, (3) not including the right of a guardian,
conservator, or personal representative to claim the privilege or in terms
53 This statute has been repealed.
54 This statute has been repealed.
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giving a psychotherapist authority to claim it on behalf of the patient, and
(4) not including the exceptions listed in the rule. These changes flesh out the
legislative intent and are consistent with that intent.
The definition of confidentiality in subdivision (a)(4)55 and the
statement in subdivision (b)56 of the general rule of privilege are broad
enough to include the increasingly common use of group therapy where other
patients are present during the communication. Such persons would be
participating in the diagnosis or treatment under the direction of the
psychotherapist.
Subdivision (c) gives separate treatment to an examination ordered by
the court to determine the criminal responsibility of an accused in a criminal
proceeding. The purpose is to ensure protection against disclosure of any
communication made to the examiner concerning guilt or innocence. It
preserves the rule enunciated in State v. Hathaway, 161 Me. 255,
211 A.2d 558 (1965). The exception in subdivision (d)(2)57 excludes from its
operation communications privileged under subdivision (c).
Advisory Committee Note
(July 2008)
This amendment would expand the coverage of the physicianpsychotherapist privilege in Rule 503 to include communications between
certain described mental health professionals and their patients or clients.
When various pre-existing, common-law, and statutory privileges were
codified in the Rules of Evidence in 1975, the Advisory Committee and the
Maine Supreme Judicial Court followed the lead of the original United States
Supreme Court version of the Federal Rules of Evidence and took a relatively
conservative view of the scope of the physician-psychotherapist privilege.
Maine Evidence Rule 503 as originally adopted limited the evidentiary
privilege to communications to or from licensed physicians (or persons
55 Now subsection (a)(5).
56 Now subsection (b)(2).
57 Now subsection (e)(2).
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reasonably believed to be such) and licensed psychologists and psychological
examiners. Although then, as now, a wide variety of counseling and mental
health professionals treated and consulted with clients and patients on a
confidential basis, coverage of the privilege was deliberately kept relatively
narrow, largely out of a concern that a broader definition might lead to
evidentiary unavailability of statements rendered in a variety of situations
that could be characterized as counseling or therapeutic in one way or
another.
This does not mean that there has been no protection of confidentiality
for patients and mental health professionals. In many cases the statutes
under which different groups of mental health professionals or counselors are
licensed have imposed duties of confidentiality and have established statutory
privileges for members of the licensed groups. In many cases these statutory
privileges authorize disclosure by court order when necessary for the sound
administration of justice.
Over the three decades since original promulgation of the Rules of
Evidence the number and scope of activity of many different kinds of mental
health professionals and counselors have greatly increased. There has been a
frequent and often insistent call for stronger protection of the relationships of
these therapists and counselors to their patients in the form of extension of
the statutory privilege.
The impetus toward extension of the psychotherapist privilege beyond
the traditional holders was increased by the Supreme Court decision in Jaffee
v. Redmond, 518 U.S. 1 (1996). There the Supreme Court ruled as a matter of
federal common law of evidence that communications between a clinical
social worker and her patient were absolutely privileged from disclosure
despite their likely relevance to the issues in a civil action. The Supreme Court
applied the absolute privilege despite the existence of conditional protection
under the laws of the state under which the social worker was licensed.
Today evidence rules, statutes, and common law among the American
jurisdictions vary widely in the scope of the psychotherapist privilege,
although it appears that the trend is toward a more expansive privilege in
terms of mental health and counseling professionals covered. The Uniform
Rules of Evidence have been recently amended in 1999 to include an
alternative proposal extending the psychotherapist privilege to a “mental
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health provider,” namely “a person licensed or reasonably believed by the
patient so to be while engaged in the diagnosis or treatment of a mental or
emotional condition including alcohol or drug addiction.”
The pressure for increased coverage appears to be coming mainly from
two groups: (1) various clinical social workers and licensed mental health
professionals who provide therapy for mental or emotional disease including
drug and alcohol addiction; (2) a broader group of professional counselors
who provide various kinds of counseling services, but who do not necessarily
treat mental or emotional diseases or addictions.
The proposed amendment would extend the absolute evidentiary
privilege to licensed nurse practitioners and licensed physician’s assistants
when treating patients. The privilege would also encompass licensed clinical
social workers when treating emotional and mental conditions and four
defined classes of licensed counseling professionals, “licensed professional
counselors,” “licensed clinical professional counselors,” “licensed marriage
and family therapists,” and “licensed pastoral counselors,” when performing
their counseling functions. Valid and complete licensure would be a
prerequisite for the privilege.
Clinical social workers are licensed under 32 M.R.S. §§ 7051 et seq. Of
the various kinds of social workers covered by state licensing requirements,
those designated and licensed as “clinical social workers” seem best to fit the
traditional role of psychotherapist as contemplated by the privilege. See Jaffee
v. Redmond, supra.
The licensed counseling professionals proposed to be covered by the
privilege are now licensed under 32 M.R.S. §§ 13851 et seq. These licensed
counselors provide different forms of psychotherapy in at least some
circumstances. Such professionals are currently covered by a conditional
privilege which permits disclosure of client communications “when a court in
the exercise of sound discretion determines the disclosure necessary to the
proper administration of justice.” 32 M.R.S. § 13862. The rule does not cover
professionals not licensed but referred to in 32 M.R.S. § 13856.
This proposal does not cover communications to and by unlicensed
mental health professionals and counselors or by persons licensed to provide
specialized counseling, such as guidance counseling. The Committee is of the
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view that a generic definition that is not tied to some kind of clear
requirement of state licensure would make the privilege administratively
unworkable. For the same reason the Committee has not recommended that
the privilege attach to persons “reasonably believed to be” licensed clinical
social workers or licensed counselors. The privilege would extend to persons
not licensed in Maine, but licensed in analogous categories with substantially
similar legal requirements by other states or nations.
RULE 504. SPOUSAL PRIVILEGE
(a)
Definition. A communication by a married person is confidential if:
(1)
The person makes it privately to the person’s spouse, and
(2)
The person making it does not intend for it to be disclosed to any
other person.
(b)
General rule. A married person has a privilege to prevent the person’s
spouse from disclosing the contents of any confidential communication
between the person and the spouse.
(c)
Who may claim the privilege.
The person who made the
communication can claim the privilege.
The spouse also has
presumptive authority to claim the privilege on the person’s behalf.
(d) Exceptions.
exceptions:
(1)
The spousal privilege is subject to the following
The spousal privilege does not apply in a proceeding in which one
spouse is charged with a crime against the person or property of:
(A
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