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Including amendments effective May 1, 2025

The Maine Rules of Unified Criminal Procedure have been adopted to

completely replace the former Maine Rules of Criminal Procedure. Included

below are the Rules and Advisory Notes to the Maine Rules of Unified Criminal

Procedure and Advisory Notes concerning amendments to the former Maine

Rules of Criminal Procedure after their adoption in 1965. Although this

compilation includes notes regarding rules that were abrogated by the

adoption of the Maine Rules of Unified Criminal Procedure, the compilation

does not include notes regarding rules that had already been abrogated before

the adoption of the Maine Rules of Unified Criminal Procedure. For Reporter’s

Notes and commentary about the 1965 adoption of the Maine Rules of Criminal

Procedure, see Glassman, Maine Practice: Rules of Criminal Procedure Annotated

(1967). Bracketed notations are included below to enhance clarity with

respect to the included notes.

MAINE RULES OF UNIFIED CRIMINAL PROCEDURE

With Advisory Notes to the Maine Rules of Unified Criminal Procedure;

Advisory Notes to former Maine Rules of Criminal Procedure appear in red

type.

TABLE OF RULES

SCOPE, PURPOSE, AND CONSTRUCTION

RULE 1.

TITLE, SCOPE, AND APPLICATION OF RULES

(a) Title.

(b) Scope; Application.

(d) Forms.

(e) Effective Date of These Rules.

(f) Effective Date of Amendments.

RULE 2.

PURPOSE AND CONSTRUCTION

II.

PRELIMINARY PROCEEDINGS

RULE 3.

THE COMPLAINT

(a) Nature and Contents.

(b) How Made.

(d) Amendment of Complaint.

(e) Arrest Tracking Number (ATN) and Charge Tracking Number (CTN).

(f) State Identification Number.

(g) Statute Sequence Number.

RULE 4.

ARREST WARRANT OR SUMMONS

(a) Definitions.

(b) Grounds for Issuance of Arrest Warrant or Summons.

(d) Content of Arrest Warrant or Summons.

(e) Management of Electronic or Paper Arrest Warrant.

(f) Execution of Electronic or Paper Arrest Warrant or Service of

Summons.

(g) Return of Electronic or Paper Arrest Warrant or Summons.

RULE 4A.

PROBABLE CAUSE DETERMINATION UPON WARRANTLESS

ARREST FOR ANY CRIME

(a) Timing: Required Findings.

(b) Evidence.

RULE 5.

INITIAL PROCEEDINGS IN THE UNIFIED CRIMINAL DOCKET

(a) Initial Appearance Before the Court.

(b) Initial Statement of Rights by the Court.

Higher Crimes in the Absence of an Indictment or Information.

(d) Pleas at Initial Appearance.

(e) Assignment of Counsel.

III.

INDICTMENT AND INFORMATION

RULE 6.

THE GRAND JURY

(a) Number of Grand Jurors.

(b) Objections to Grand Jury and to Grand Jurors.

(d) Presence During Proceedings.

(e) General Rule of Secrecy.

(f) Recording of Proceedings.

(g) Procedure for Preparation and Disclosure of Transcript.

(h) Disclosure for Certain Law Enforcement Purposes.

(i) Finding and Return of Indictment.

(j) Excuse.

RULE 7.

THE INDICTMENT AND THE INFORMATION

(a) Use of Indictment, Information or Complaint.

(b) Waiver of Indictment.

(d) Surplusage.

(e) Amendment of Indictment or Information.

(f) Arrest Tracking Number (ATN) and Charge Tracking Number (CTN).

(g) State Identification Number.

(h) Statute Sequence Number.

RULE 8. JOINDER OF CRIMES AND OF DEFENDANTS

(a) Joinder of Crimes.

(b) Joinder of Defendants.

(d) Relief From Prejudicial Joinder

RULE 9.

[RESERVED]

IV.

RULE 10.

ARRAIGNMENT AND PREPARATION FOR TRIAL

ARRAIGNMENT

RULE 11.

PLEAS; SPECIAL CIRCUMSTANCES AS TO ACCEPTANCE OF

CERTAIN PLEAS; NOTICE TO NONCITIZENS OF POTENTIAL

ADVERSE IMMIGRATION CONSEQUENCES OF A PLEA

(a) Pleas for Any Crime.

(b) Prerequisites to Accepting a Plea of Guilty or Nolo Contendere to a

Class C or Higher Crime.

(d) Ensuring That the Plea Is Voluntary.

(e) Ensuring That There Is a Factual Basis for the Plea.

(f) Acceptance of a Plea of Guilty to a Class C or Higher Crime Prior to

Indictment.

(g) Prerequisites to Accepting a Plea of Guilty or Nolo Contendere to a

Class D or Class E Crime From an Unrepresented Defendant.

(h) Potential Adverse Immigration Consequences to Noncitizens of a

Plea to Any Crime.

(i) Transfer for Plea and Sentence.

(j) Acceptance of Guilty Plea by the Clerk to a Charge Punishable by a

Fine.

RULE 11A. PLEA AGREEMENTS

(a) In General.

(b) Notice of Plea Agreement.

(d) Acceptance or Rejection by the Court of Recommendation Included

in Plea Agreement.

(e) Withdrawal of Plea Upon Rejection of Recommendation.

(f) Compliance With Plea Agreement.

(g) Inadmissibility of Pleas, Offers of Pleas, and Related Statements.

(h) Acceptance of a Negotiated Plea of Not Criminally Responsible by

Reason of Insanity.

RULE 11B. FILING AGREEMENTS

(a) In General.

(b) Court Approval Unnecessary.

(d) Special Reservations in the Filing Agreement.

RULE 12.

PLEADINGS AND MOTIONS BEFORE TRIAL; DEFENSES AND

OBJECTIONS

(a) Pleadings and Motions.

(b) Motion Raising Defenses and Objections.

RULES 13 AND 14. [RESERVED]

RULE 15. DEPOSITIONS

(a) When Taken.

(b) Notice of Taking.

(d) How Taken.

(e) Use.

(f) Objections to Admissibility.

(g) At the Instance of the State or Witness.

RULE 16. DISCOVERY BY THE DEFENDANT

(a) Automatic Discovery.

(b) Time for Providing Automatic Discovery.

(d) Discovery Pursuant to Court Order.

(e) Sanctions for Noncompliance.

RULE 16A. DISCOVERY BY THE STATE

(a) Automatic Discovery. Notice of Intention to Introduce Expert

Testimony as to the Defendant’s Mental State.

(b) Discovery Upon Request.

(d) Sanctions for Noncompliance.

RULE 17. SUBPOENA FOR ATTENDANCE OF WITNESSES

(a) For Attendance of Witnesses; Form; Issuance.

(b) Indigent Defendants.

(d) Privileged or Protected Documentary Evidence.

(e) Service.

(f) Place of Service.

(g) For Taking Deposition; Place of Examination.

(h) Enforcement of Subpoena.

(i) Grand Jury Proceedings.

RULE 17A. SUBPOENA FOR PRODUCTION OF DOCUMENTARY EVIDENCE OR

TANGIBLE OBJECTS BY A NONPARTY

(a) Subpoena to Produce Documentary Evidence or Tangible Objects.

(b) Service.

(d) Motion to Quash or Modify Subpoena.

(e) Sanction for Noncompliance.

(f) Privileged or Protected Documentary Evidence.

(g) Grand Jury Proceedings.

RULE 18. DISPOSITIONAL CONFERENCE

(a) Appearance required.

(b) Participation.

(d) Agreement; Plea.

(e) No Agreement; Subsequent Proceedings.

(f) No Agreement; Inquiry Regarding Indictment.

RULES 19 AND 20. [RESERVED]

TRIAL

RULE 21. PLACE OF TRIAL

(a) Venue.

(b) Change of Venue.

RULE 22.

[RESERVED]

RULE 23. TRIAL BY JURY OR BY THE COURT

(a) Trial by Jury; Waiver.

(b) Jury of Fewer Than 12.

RULE 24. TRIAL JURORS

(a) Examination of Jurors.

(b) Challenges for Cause.

(d) Alternate Jurors.

(e) Sequestration of the Jury.

(f) Note-Taking by Jurors.

RULE 25. INABILITY OF A JUDGE TO PROCEED; RECUSAL

(a) Inability to Proceed.

(b) Recusal.

(d) Appeal.

RULE 25A. SCHEDULING AND CONTINUANCES

(a) Definitions.

(b) Assignment for Trial.

(d) Protections.

RULE 26. EVIDENCE

(a) Form.

(b) Examination of Witnesses.

(d) Attorney Not to be Witness.

(e) Allegation of Prior Conviction; Procedure.

(f) Marking of Exhibits; Insurance for Valuable Exhibits.

(g) Election by Unrepresented Defendant.

RULE 27. RECORDING AND TRANSCRIPTS OF PROCEEDINGS

(a) Proceedings Recorded.

(b) Preservation of Record.

RULE 28.

COURT-APPOINTED INTERPRETERS AND TRANSLATORS

RULE 29. MOTION FOR ACQUITTAL

(a) Motion for Judgment of Acquittal.

(b) Motion After Discharge of Jury.

RULE 30. ARGUMENT OF COUNSEL; INSTRUCTIONS TO JURY

(a) Time for Argument.

(b) Instructions to Jury.

RULE 31. JURY VERDICT

(a) Return.

(b) Several Defendants.

(d) Verdict on Nonbusiness Days and After Hours.

VI.

RULE 32.

JUDGMENT

SENTENCE AND JUDGMENT

(a) Sentence.

(b) Judgment.

(d) Withdrawal of Plea of Guilty or Nolo Contendere.

RULE 33.

NEW TRIAL

RULE 34.

ARREST OF JUDGMENT

RULE 35. CORRECTION OR REDUCTION OF SENTENCE

(a) Correction of Sentence.

(b) Reduction of Sentence Before Commencement of Execution.

(d) Definitions.

(e) Power of Trial Court Pending an Appeal.

(f) Appeal by Defendant.

(g) Appeal by State.

VII.

REVIEW BY APPEAL OR PETITION

RULE 36. APPEAL; PETITIONS.

(a) Limited Review by Appeal or Petition in the Unified Criminal Docket.

(b) De Novo Review of Preconviction Bail Set by Judicial Officer for a

Crime Bailable as of Right.

Judicial Court.

(d) Discretionary Appeal to the Law Court.

(e) Appeal to the Law Court from a Rule 35 Adverse Ruling.

(f) Appeal to the Law Court in Juvenile Crime Proceedings.

RULE 37.

[RESERVED]

RULE 38. STAY OF EXECUTION OF SENTENCE

(a) Sentence Involving Imprisonment, Probation, Supervised Release, or

Administrative Release.

(b) Sentence Involving Alternatives Other than Imprisonment,

Probation, Supervised Release, or Administrative Release.

(d) Surrender of Defendant Following Automatic Termination of Stay.

RULES 39 [RESERVED]

VIII.

RULE 40

SUPPLEMENTARY AND SPECIAL PROCEEDINGS

[RESERVED]

RULE 41. SEARCH AND SEIZURE

(a) Scope

(b) Authority to Issue a Search Warrant.

(d) Definition of Property.

(e) Requesting a Search Warrant.

(f) Issuing a Search Warrant.

(g) Execution and Return with Inventory.

(h) Return of Papers to Clerk.

(i) Attorney for State to File Notice.

(j) Motion for Return of Property.

RULE 41A. MOTION TO SUPPRESS EVIDENCE

(a) Grounds of Motion.

(b) Time of Making Motion.

(d) Order.

RULE 41B. SPECIAL PROVISIONS FOR SEARCHES AND SEIZURES OF

CERTAIN KINDS OF PROPERTY

(a) Electronically Stored Information.

(b) Information derived from a tracking device.

(d) Cell Phone or Other Portable Electronic Device Content Information.

RULE 41C. SEARCH WARRANT REQUEST MADE BY APPLICANT OUTSIDE

THE PRESENCE OF THE COURT OR JUSTICE OF THE PEACE

(a) In General.

(b) Procedures to be Applied.

RULE 42.

CONTEMPT PROCEEDINGS

IX.

RULE 43.

GENERAL PROVISIONS

PRESENCE OF THE DEFENDANT

RULE 43A. PHYSICAL RESTRAINT OF JUVENILES

RULE 44. RIGHT TO AND ASSIGNMENT OF COUNSEL

(a) Assignment of Counsel.

(b) Determination of Indigency.

(d) Appearance of Defense Counsel.

(e) Bar Registration Number.

RULE 44A. PROCEDURE FOR DETERMINATION OF INDIGENCY AFTER

VERDICT OR FINDING

(a) Petition and Hearing.

(b) Order.

RULE 44B. WITHDRAWAL OF COUNSEL

RULE 44C. APPLICATION TO MAINE COMMISSION ON INDIGENT LEGAL

SERVICES FOR FUNDS FOR EXPERT OR INVESTIGATIVE

ASSISTANCE FOR INDIGENT DEFENDANT

RULE 45. TIME

(a) Computation.

(b) Enlargement.

(d) For Motions; Affidavits.

(e) Additional Time After Service by Mail.

RULE 46. CERTAIN PROCEDURAL PROVISIONS GOVERNING BAIL

(a) In General.

(b) Bail by a Bail Commissioner.

(d) Redetermination of Bail by Another Justice or Judge.

(e) Review of Bail by or Appeal to a Single Justice of the Supreme

Judicial Court.

(f) Statement to Person Offering Surety for a Defendant.

(g) Forfeiture.

(h) Exoneration.

(i) Bail for Witness.

RULE 47. MOTIONS AND MOTION DAY

(a) Motions.

(b) Motion Day.

RULE 48. DISMISSAL

(a) By the Attorney for the State.

(b) By the Court.

RULE 49. SERVICE AND FILING OF PAPERS

(a) Service: When Required.

(b) Service: How Made.

(d) Filing.

(e) Form of Papers.

RULE 50.

CLERICAL MISTAKES

RULE 51.

EXCEPTIONS UNNECESSARY

RULE 52. HARMLESS ERROR AND OBVIOUS ERROR

(a) Harmless Error.

(b) Obvious Error.

RULE 53.

BOOKS AND RECORDS KEPT BY THE CLERK AND ENTRIES

THEREIN

(a) Unified Criminal Docket.

(b) Custody of Papers by Clerk.

RULE 53A. CUSTODY OF NONDOCUMENTARY EXHIBITS.

(a) During Trial or Hearing.

(b) After Trial or Hearing.

RULE 54. COURTS AND CLERKS

(a) Court Always Open.

(b) Clerk’s Office.

RULE 55. VISITING LAWYERS

(a) In General.

(b) Appearances by Service Lawyers.

RULE 56. LEGAL ASSISTANCE BY LAW STUDENTS

(a) Permitted Activities on Behalf of a Criminal Defendant.

(b) Permitted Activities on Behalf of the State.

(d) Other Conditions.

RULE 57. DEFINITIONS

(a) Arrest Tracking Number (ATN).

(b) Attorney for the State.

(d) Court.

(e) District Court Judge.

(f) State Identification Number.

(g) Superior Court Justice.

(h) Statute Sequence Number.

(i) Unified Criminal Docket

RULES 58 TO 64. [RESERVED]

PROCEEDINGS FOR POST-CONVICTION REVIEW

RULE 65.

NATURE OF THE PROCEEDING

RULE 66.

PREREQUISITES TO AN ADJUDICATION ON THE MERITS

RULE 67. FORM AND CONTENTS OF THE PETITION

(a) Form Prescribed by Supreme Judicial Court.

(b) Challenges Allowed in Single Petition.

(d) Identification of Criminal Judgment, Post-sentencing Proceeding,

Court, and Date.

(e) Prerequisites to an Adjudication on the Merits; Reasons for Relief

and Facts in Support Thereof.

(f) Specification of Relief Sought.

RULE 68.

FILING OF THE PETITION

RULE 69. ASSIGNED COUNSEL

(a) Compliance With 15 M.R.S. ch. 305-A by Petitioner.

(b) Determination of Indigency; Assignment and Compensation of

Counsel.

RULE 69A. ASSIGNED JUDGE OR JUSTICE

(a) Assignment by Chief Justice of the Superior Court or by Designee.

(b) Assignment of Trial Justice or Judge.

RULE 70.

REVIEW OF THE PETITION BY THE COURT; SUMMARY

DISMISSAL; RESPONSE; AMENDMENT TO THE PETITION;

WITHDRAWAL OF PETITION; DISMISSAL OF PETITION WITH

PREJUDICE FOR FAILURE TO PROSECUTE

(a) Review of Petition by the Court.

(b) Summary Dismissal or Stay of the Petition.

(d) Withdrawal of Petition.

(e) Dismissal of Petition for Failure to Prosecute.

RULE 71. RESPONSE

(a) When Required.

(b) Enlargement of Time to File.

(d) Materials Attached to or Filed With Response.

RULE 71A. FILING A RESPONSE SEEKING DISMISSAL; TIMELY DISPOSITION

BY ASSIGNED JUSTICE

RULE 72. DISCOVERY

(a) In General.

(b) Discovery From Former Defense Counsel.

RULE 72A. CONFERENCE FOLLOWING THE FILING OF THE PLEADINGS

(a) Scheduling.

(b) Matters to Be Considered at Conference.

RULE 73. EVIDENTIARY HEARING, BRIEFS AND ARGUMENTS

(a) Evidentiary Hearing.

(b) Time for Briefs When No Hearing.

(d) Oral Argument.

RULE 73A. MOTION FOR JUDGMENT

RULE 74. BAIL PENDING FINAL DISPOSITION OF THE PETITION

(a) Application to the Court.

(b) Standards Governing Bail.

RULE 75.

BAIL PENDING APPEAL WHEN RELIEF IS GRANTED TO THE

PETITIONER

(a) Application to the Court.

(b) Standards Governing Bail Pending Appeal.

RULE 75A. STAY OF EXECUTION

(a) Bail Pending Final Disposition.

(b) Bail Pending Appeal.

RULES 76 TO 84. [RESERVED]

XI. EXTRADITION PROCEEDINGS

RULE 85.

NATURE OF THE PROCEEDINGS

RULE 86.

ASSIGNMENT OF COUNSEL

RULE 87.

DISCOVERY

RULES 88 TO 94

[RESERVED]

XII. POSTCONVICTION MOTION FOR DNA ANALYSIS; NEW TRIAL

HEARING

RULE 95. INITIATION OF PROCEEDINGS

(a) Person Entitled to Bring a Motion; Filing and Service.

(b) Docketing and Assignment.

RULE 96. ASSIGNMENT OF COUNSEL

(a) Compliance with 15 M.R.S. § 2138(3).

(b) Determination of Indigency; Assignment and Compensation;

Continuing Duty to Represent.

RULE 97. INITIAL TRIAL COURT PROCEEDINGS

(a) Order Preserving Evidence.

(b) Court Findings; Order Directing Crime Lab to Perform DNA Analysis.

RULE 98. DNA ANALYSIS RESULTS

(a) Compliance With 15 M.R.S. § 2138(8).

(b) Analysis Results Other Than That the Person Is Not the Source of the

Evidence.

(d) Request for Reanalysis by the Attorney for the State.

RULE 99.

HEARING; COURT FINDINGS; NEW TRIAL GRANTED OR DENIED

XIII. POST-JUDGMENT MOTION AND HEARING FOR DETERMINATION

OF FACTUAL INNOCENCE AND CORRECTION OF RECORD BASED ON A

PERSON’S IDENTITY HAVING BEEN STOLEN AND FALSELY USED IN A

CRIMINAL PROCEEDING; SUBSEQUENT DISCOVERY OF FRAUD OR

MISREPRESENTATION

RULE 105. INITIATION OF PROCEEDINGS

(a) Person or Entity Entitled to File a Post-Judgment Motion.

(b) Docketing and Assignment of Post-Judgment Motion.

RULE 106. ASSIGNMENT OF COUNSEL

(a) Compliance with 15 M.R.S. § 2183(2).

(b) Determination of Indigency; Assignment and Compensation;

Continuing Duty to Represent.

RULE 107. REPRESENTATION OF THE STATE

RULE 108. HEARING; CERTIFICATION OF RESULTS; CORRECTION OF THE

RECORD

RULE 109. SUBSEQUENT DISCOVERY OF FRAUD OR MISREPRESENTATION

XIV.

CIVIL VIOLATIONS

RULE 110. CIVIL VIOLATIONS

(a) Applicability.

(b) Commencement of Proceedings.

(d) Pleadings of Defendant.

(e) Venue.

(f) Discovery.

(g) Standard of Proof.

(h) Default.

(i) Appeal.

(j) Costs.

(k) Notice of Orders or Judgments.

RULE 111. SEARCH WARRANTS FOR SCHEDULE Z DRUGS

(a) Issuance of Search Warrant.

(b) Suppression of Evidence.

MAINE RULES OF UNIFIED CRIMINAL PROCEDURE

With Advisory Notes to the Maine Rules of Unified Criminal Procedure;

Advisory Notes to former Maine Rules of Criminal Procedure appear in red

type.

SCOPE, PURPOSE, AND CONSTRUCTION

RULE 1. TITLE, SCOPE, AND APPLICATION OF RULES

(a) Title. These Rules may be known and cited as the Maine Rules of

Unified Criminal Procedure.

(b) Scope; Application. These Rules are effective upon the date stated

in subdivision (e) below for each county or region. They govern the

procedure in the proceedings specified below brought in any county or region

with a Unified Criminal Docket after unification takes effect, and also

proceedings specified below then pending, except to the extent that in the

opinion of the court their application in a particular action pending when they

take effect would not be feasible or would work an injustice, in which event the

Maine Rules of Criminal Procedure apply:

(1) In all criminal proceedings, including appellate and post-conviction

review proceedings, extradition proceedings, proceedings on a post-conviction

motion for DNA analysis, and proceedings on a post-judgment motion by a

person whose identity allegedly has been stolen and falsely used; and

(2) In proceedings before justices of the peace and bail commissioners;

and

(3) In juvenile crime proceedings (including appellate proceedings) to

the extent consistent with the Maine Juvenile Code.

These Rules are not applicable to forfeiture of property for a violation of

a statute of the State of Maine or the collection of fines and penalties. These

Rules are not applicable to revocation proceedings under Title 17-A, sections

1205 through 1207, section 1233 or sections 1349-D through 1349-F except to

the extent and under the conditions stated in those sections. These Rules are

not applicable to proceedings for administrative inspection warrants, traffic

infractions, actions for license revocation or suspension, and land use violations

addressed in Rules 80E, 80F, 80G, and 80K of the Maine Rules of Civil Procedure,

except as those civil rules may reference or incorporate provisions of these

Rules. Rules 110 and 111 of these Rules supersede Rules 80H and 80I,

respectively, of the Maine Rules of Civil Procedure.

When no procedure is

specifically prescribed, the court shall proceed in any lawful manner not

inconsistent with the Constitution of the United States or of the State of Maine,

the Maine Rules of Criminal Procedure, these Rules, or any applicable statutes.

(d) Forms.

Forms do not accompany these Rules.

Forms are

currently prepared by the Judicial Branch Forms Committee and, to a limited

extent, by the Supreme Judicial Court. Forms are intended to be both

sufficient under the Rules and reflective of the simplicity and brevity of

statement that the Rules contemplate. Forms are available through the court

clerks’ offices and, to an increasing extent, on the Judicial Branch website.

(e) Effective Date of These Rules. The Maine Rules of Unified Criminal

Procedure shall govern proceedings indicated in subdivision (b) in all counties,

effective July 1, 2015. On July 1, 2015, or on the prior effective dates indicated

below for each county, the Maine Rules of Criminal Procedure and/or prior

Administrative Orders governing Unified Criminal Docket proceedings in any

particular county shall cease to apply to govern proceedings in that county.

Decisions made, actions taken, orders issued, and judgments entered pursuant

to the Maine Rules of Criminal Procedure or prior Unified Criminal Docket rules

shall continue to be valid and have full force and effect.

(1) These Rules took effect on January 1, 2015, in Cumberland County,

Franklin County, Hancock County, Penobscot County, Piscataquis County,

Sagadahoc County, and Somerset County.

(2) These Rules took effect on April 1, 2015, in Kennebec County, Knox

County, Lincoln County, Oxford County, and Waldo County.

(3) These Rules took effect on July 1, 2015, in Androscoggin County,

Aroostook County, Washington County, and York County.

(f) Effective Date of Amendments. Amendments to these Rules will

take effect upon the day specified in the order adopting them. They govern all

proceedings in actions brought after they take effect and also all further

proceedings in actions then pending, except to the extent that in the opinion of

the court their application in a particular action pending when they take effect

would not be feasible or would work injustice, in which event the former

procedure applies.

Committee Advisory Note [December 2014]

The Rule parallels the content of Rule 1 of the Maine Rules of Criminal

Procedure but differs in the following respects.

First, the heading to Rule 1 is changed from “TITLE AND SCOPE OF

RULES” to “TITLE, SCOPE, AND APPLICATION OF RULES” in order to signal

that these new unified Rules will be phased in rather than governing the

procedure in all existing courts from the outset.

Second, in subdivision (a) the title given to these new Rules is the “Maine

Rules of Unified Criminal Procedure.” The word “Unified” in the title is

expressly intended to convey that the distinctions between the functions of the

District and Superior Courts in their handling of criminal matters and civil

violations have been eliminated.

Third, in subdivision (b) the heading is changed from “Scope” to “Scope;

Application.”

Fourth, in subdivision (b), as it relates to “scope,” the content remains the

same as Rule 1(b) of the Maine Rules of Criminal Procedure except that the

sentence “These rules govern the procedure in the Superior Court and the

District Court” is intentionally omitted.

Fifth, in subdivision (b), as it relates to “application,” the content makes

clear that the new Maine Rules of Unified Criminal Procedure and the Maine

Rules of Criminal Procedure will coexist for a period. During this transitional

period the new Rules of Unified Criminal Procedure will be applied in all

counties or regions with a Unified Criminal Docket while the preexisting Maine

Rules of Criminal Procedure will continue to apply elsewhere until unification

takes effect. When unification has been fully accomplished statewide, the

Maine Rules of Criminal Procedure will be abrogated. In addition, the content

makes clear that, when the new Rules first become effective in a given county

or region, then-pending proceedings within their scope are subject to the new

Rules except (like any future amendments pursuant to subdivision (f)) “to the

extent that in the opinion of the court their application in a particular action

pending when they take effect would not be feasible or would work an

injustice.” Further, subdivision (b) makes clear that the new Rules “are

effective upon the date set forth in the order adopting them.” Finally, in the

final paragraph of subdivision (b) the references to “civil violations, search

warrants for schedule Z drugs” and “80H, 80I” are omitted and a new sentence

is added that makes clear that new Rules 110 and 111 supersede Rules 80H and

80I in any county or region with a Unified Criminal Docket.

Sixth, in subdivision (d) the words “no longer” are replaced by the words

“do not” because these Rules, unlike the Maine Rules of Criminal Procedure,

have no former history of form use.

Seventh, subdivisions (e) and (f) address the effective dates for these

Rules and amendments to these Rules.

Advisory Note – July 2015

Rule 1(e) is amended to recognize that the Maine Rules of Unified

Criminal Procedure are in effect in all counties as of July 1, 2015. As Rule 1(e)

also notes, actions previously taken pursuant to the former Maine Rules of

Criminal Procedure or Administrative Orders establishing unified criminal

dockets in certain counties remain valid and have full force and effect.

__________________________________________________________________

[Advisory Notes to former Maine Rules of Criminal Procedure]

Advisory Committee Note–1975

[M.R. Crim. P. 1.] This rule is amended to implement Maine Laws,

1975, Chapter 139, and to indicate that the Maine Rules of Criminal

Procedure govern the proceedings on appeals from the District Court.

Advisory Committee Note–1976

[M.R. Crim. P. 1.] This amendment does not make any substantial

change. It recognizes the abolition of the felony-misdemeanor distinction in

the new Criminal Code, Title 17-A of the Maine Revised Statutes. The rule, as

amended, establishes that the Maine Rules of Criminal Procedure govern the

procedure in all criminal proceedings in all courts, except Class D and Class E

crimes in the District Court. Those crimes are within the trial jurisdiction of the

District Court, 17-A M.R.S.A. § 9(3), and procedure in those cases in the District

Court is governed by the Maine District Court Criminal Rules.

Advisory Committee Note–1981

[M.R. Crim. P. 1.] The amendment conforms the terminology of the Rule

with that presently found in 15 M.R.S.A. ch. 305-A.

Advisory Committee Note–1983

[M.R. Crim. P. 1.]

proceedings.

The Amendment adds a reference to extradition

Advisory Committee Note—1989

[M.R. Crim. P. 1.] Rule 1 collects a number of provisions now scattered

throughout the rules which should come at the beginning.

Subdivision (a) contains the title of the rules; it was previously found in

both [this Rule and] Rule 60.

Subdivision (b) details the scope of the rules, combining provisions

previously found in both Rules 1 and both Rules 54.

Subdivision (c) authorizes judicial creativity when no procedure is

specified, carrying forward provisions in both [this Rule and] Rules [sic] 58.

Subdivision (e) provides for the effective date of amendments, carrying

forward the language of Rule 59(b).

Advisory Committee Note—1993

[M.R. Crim. P. 1(b).] Some question has arisen as to the applicability of

the Maine Rules of Criminal Procedure to probation revocation proceedings.

Since probation revocation proceedings are now comprehensively covered by

statute, see Chapter 49 of Title 17-A, the better practice appears to be to make

the rules selectively applicable only to the extent specified by statute.

Moreover, the fragmentary provision contained in Rule 32(e) should be deleted

once the corresponding change is made to the statute.

Advisory Committee Notes—2000

[M.R. Crim. P. 1(d).] This amendment is necessitated by the elimination

of the Appendices of Forms to the Maine Rules of Criminal Procedure in favor

of relying upon form preparation by the Judicial Branch Forms Committee and

the Supreme Judicial Court to the extent the Court may choose to provide forms,

particularly those relating to criminal practice in the Supreme Judicial Court.

The elimination of the two appendices of forms to the Maine Rules of Criminal

Procedure is desirable both because of the small number of forms contained

therein when compared with the total number of forms currently in use in

criminal practice in the courts and because of the practical difficulties

confronting the Supreme Judicial Court in making the necessary changes to

keep the included forms current. The amendment, in addition to making clear

that forms will no longer accompany the rules, explains that forms are currently

available to users through the courts and will shortly be available on the

Internet as well.

Advisory Committee Note—2002

[M.R. Crim. P. 1(b).] The amendment modifies the paragraph in two

respects. First, it clarifies that the rules govern procedure where the Superior

Court is sitting as an appellate court. Second, it eliminates from the scope of the

rules any reference to the procedure where the Supreme Judicial Court is

setting as the Law Court since that procedure is now in the Maine Rules of

Appellate Procedure.

Advisory Committee Note—2003

[M.R. Crim. P. 1(b).] This amendment reconfigures the current rule in

an effort to enhance clarity and readability. Further, two substantive changes

have been made as well. First, the amendment incorporates the statutory

change made by P.L. 1997, ch. 181, § 1 relative to extradition proceedings

making them a District Court matter rather than a Superior Court matter.

Second, the amendment adds post-conviction District Court and Superior Court

proceedings relating to DNA analysis created by P.L. 2001, ch. 469, § 1, and

incorporated into these rules in Part XII.

Advisory Committee Note—2004

[M.R. Crim. P. 1(b).] This amendment adds revocation proceedings

relating to both supervised release, pursuant to 17-A M.R.S. § 1233, and

administrative release, pursuant to 17-A M.R.S. § 1349-F, as proceedings to

which the Maine Rules of Criminal Procedure are inapplicable except as

specified in statute. See also Advisory Committee Note to M.R. Crim. P. 36(a),

(b), (d) and (g).

Advisory Note - June 2006

M.R. Crim. P. 1(b). The amendment removes the division (i) and (ii)

designations in the first sentence of the final paragraph as unnecessary. The

amendment also adds a reference to sections 1349-D and 1349-E in the second

sentence of the final paragraph for purposes of completeness.

Advisory Note—July 2010

The amendment modifies subdivision (b) of Rule 1 in three respects.

First, editing changes are made to eliminate duplicative language and the

unnecessary distinctions between the Superior Court and the District Court.

Those distinctions have been creating confusion and uncertainty in the many

trial courts currently operating with combined Superior Court and District

Court clerk’s offices and the increasing number of courts operating with unified

criminal dockets.

As to the latter, see Administrative Order JB-08-2,

Establishment of the Cumberland County Unified Criminal Docket, effective

January 1, 2009, and Administrative Order JB-10-1, Establishment of the Bangor

Unified Criminal Docket, effective January 4, 2010. These changes do not

change statutory court authority in any way. For example, juvenile and

extradition proceedings will continue to be heard as District Court matters;

juvenile appeals will continue to be heard as Superior Court matters.

Second, the last paragraph of subdivision (b) is amended to eliminate

another point of confusion by clarifying that the Maine Rules of Criminal

Procedure do not govern proceedings for administrative inspection warrants,

traffic infractions, actions for license revocation or suspension, civil violations,

search warrants for schedule Z drugs, and land use violations addressed in

Rules 80E, 80F, 80G, 80H, 80I and 80K of the Maine Rules of Civil Procedure,

except as those civil rules may reference or incorporate provisions of these

rules.

Third, a substantive change to subdivision (b) is necessitated by a recent

statutory enactment. The amendment adds a reference to new Part XIII

containing Rules 105-109, adopted by 2010 Me. Rules 5, effective March 31,

2010, addressing the new statutory post-judgment relief mechanism for

persons whose identities have been stolen and falsely used by another person

in a criminal proceeding. See 15 M.R.S. §§ 2181-2184, enacted by P.L. 2009,

ch. 287, § 1, effective September 12, 2009. See also, Advisory Note—March

2010 to M.R. Crim. P. Part XIII and Rules 105-109.

Finally, the amendment modifies subdivision (d) of Rule 1 to reduce

unnecessary references to forms, deleting language added when forms ceased

being published with the Maine Rules of Criminal Procedure more than a

decade ago. See Me. Rptr., 746-754 A.2d CV and LXVII-LXVIII.

RULE 2. PURPOSE AND CONSTRUCTION

These Rules are intended to provide for the just determination of every

proceeding governed by them. They shall be construed to secure simplicity in

procedure, fairness in administration, and the elimination of unjustifiable

expense and delay.

Committee Advisory Note [December 2014]

The Rule parallels the content of Rule 2 of the Maine Rules of Criminal

Procedure but clarifies that the new Rules apply to “every proceeding governed

by them,” not solely criminal proceedings.

II.

PRELIMINARY PROCEEDINGS

RULE 3. THE COMPLAINT

(a) Nature and Contents. The complaint shall be a plain, concise, and

definite written statement of the essential facts constituting the crime charged.

The complaint is not required to negate any facts designated a “defense” or any

exception, exclusion, or authorization set forth in the statute defining the crime.

It need not contain a formal commencement, a formal conclusion or any other

matter not necessary to such statement. Allegations made in one count may

be incorporated by reference in another count. It may be alleged in a single

count that the means by which the defendant committed the crime are

unknown or that the defendant committed it by one or more specified means.

The complaint shall state for each count the official or customary citation of the

statute, rule, regulation, or other provision of law, the class of crime that the

defendant is alleged therein to have violated and the municipality or other

location where the crime is alleged to have occurred. Error in the citation of

a statute or its omission shall not be grounds for the dismissal of the complaint

or for reversal of a conviction if the error or omission was not prejudicially

misleading.

All charges against a defendant arising from the same incident or course

of conduct should be alleged in one complaint, except that special

circumstances may require the use of separate instruments. A complaint may

include multiple counts charged against a defendant when authorized pursuant

to Rule 8(a). Nothing in this Rule shall prohibit the later commencement of

additional charges arising from the original incident or course of conduct. The

court may administratively consolidate such subsequent charges with the

original complaint into a single case docket. Two or more defendants may not

be charged in the same complaint.

If a prior conviction must be specially alleged pursuant to 17-A M.R.S.

§ 9-A(1) it may not be alleged in an ancillary complaint or separate count but

instead must be part of the allegations constituting the principal crime. A

prior conviction allegation made in one count may be incorporated by

reference in another count.

(b) How Made. The complaint shall be either (1) signed by the attorney

for the State and certified on information and belief or (2) made upon oath

before the court or other officer empowered to issue warrants against persons

charged with crimes against the State. If a charge is enhanced to a Class C

crime or above because of prior convictions, the complaint shall allege the prior

convictions to charge the enhanced crime.

“Oath” includes affirmations as provided by law.

surplusage from the complaint.

(d) Amendment of Complaint. The attorney for the State may amend

a complaint as a matter of right at any time before completion of the defendant’s

initial appearance pursuant to Rule 5 of these Rules.

The court may permit a complaint to be amended at any time before

verdict or finding if no additional or different crime is charged and if substantial

rights of the defendant are not prejudiced.

Unless the statutory class for the principal crime would be elevated

thereby, amendment of a complaint for purposes of 17-A M.R.S. § 9-A(1) may

be made as of right by the attorney for the State at any time before the

imposition of sentence on the principal crime.

With respect to joint recommendations for disposition involving an

amendment to the complaint, the motion to amend the complaint must be in

writing, must be accompanied by the proposed amended complaint, and must

be filed with the clerk for docketing before it is presented to the court for

disposition.

(e) Arrest Tracking Number (ATN) and Charge Tracking Number

(CTN). Unless the crime charged is an excepted crime under Rule 57, each

count of the complaint should include the assigned Arrest Tracking Number

and Charge Tracking Number.

(f) State Identification Number. If a State Identification Number has

been assigned to a defendant by the State Bureau of Identification, and if that

State Identification Number is known to the attorney for the State, the

complaint shall contain that number.

(g) Statute Sequence Number. Unless the crime charged is an

excepted crime under Rule 57, each count of the complaint shall set forth the

Statute Sequence Number for the crime or crime variant charged.

Advisory Note – May 2025

The change is made to clarify the nature of the oath required by 15 M.R.S.

§ 708 in anticipation of electronic filing of criminal complaints by prosecutors,

who will be mandatory filers under the Maine Rules of Electronic Court

Systems. The language in subdivision (b)(1) as amended reflects that a

complaint signed by the attorney for the State is certified “on information and

belief” and is not an oath that the signatory has personal knowledge of the facts

underlying the complaint. The amendment tracks the current language in

Rule 7(c) requiring the attorney for the State to sign and certify an information.

Advisory Note – June 2016

Rule 3(g) is amended to reflect the definition of “Statute Sequence

Number” in Rule 57(h), which expressly excludes any criminal charge that does

not require an Arrest Tracking Number (ATN) under Rule 57(a).

Committee Advisory Note [December 2014]

The Rule parallels the content of Rule 3 of the Maine Rules of Criminal

Procedure but differs in the following respects.

First, in subdivision (a) the word “that” replaces the word “which” to

reflect modern usage.

Second, in subdivisions (b) and (d) the word “court” replaces the words

“a Superior Court justice or a District Court judge” because the word “court” is

now expressly defined in Rule 57(d) to mean both a Superior Court justice and

a District Court judge “unless the context clearly indicates only one or the

other.” See Committee Advisory Note [December 2014] to M.R.U. Crim. P.

57(d).

Third, in subdivision (d) and (f) the letter “s” in the word “state” when

appearing in the term “attorney for the State” is capitalized because the word

“state” in this context refers to a government actor.

Fourth, in subdivision (d) the word “before” replaces the phrase “prior

to” to reflect modern usage.

Fifth, a new subdivision (g) is added requiring that each count of the

complaint identify the Statute Sequence Number assigned by the Maine Judicial

Information System (MEJIS) to each crime or crime variant. The term “Statute

Sequence Number” is defined in Rule 57(h). See also Committee Advisory

Note [December 2014] to M.R.U. Crim. P. 57(h).

__________________________________________________________________

[Advisory Notes to former Maine Rules of Criminal Procedure]

Advisory Committee Note—1981

[M.R. Crim. P. 3.] The added provision is presently contained in the

Criminal Code, 17-A M.R.S. § 5(2)(A). The Criminal Law Advisory Commission

recommends that it be transferred to the Criminal Rules, for the reason that it

is a rule of pleading that properly belongs with procedural rules rather than in

the substantive criminal law.

Advisory Committee Note—1983

[M.R. Crim. P. 3.] The class of crime may depend upon whether or not

the crime is a first offense. For example, a Class D or E theft may be enhanced

to a Class C theft if the defendant has two prior theft convictions. 17-A M.R.S.

§ 362(3)(C). The amendment seeks to make clear that the complaint should

charge the enhanced crime and that the District Court should hold only a

bind-over hearing on the charge. There is no need for an ancillary complaint

in the District Court since the District Court has no trial jurisdiction. See 15

M.R.S. § 757 (As amended by Laws, 1982, c. 679, § 1). If the District Court binds

over the defendant, then the grand jury may indict for the Class D theft and

also return an ancillary indictment charging the Class C crime of habitual theft,

as was done in State v. Sapiel, 432 A.2d 1262 (Me. 1981).

Advisory Committee Note—1989

[M.R. Crim. P. 3.] Rule 3 combines provisions of both Rules 3,

adopting the format of District Court Rule 3.

The definition of “oath” in subdivision (b) is derived from Rule 54(c).

District Court Rule 3(e) is deleted because the bill of particulars is treated

in Rule 16(c)(2).

Advisory Committee Note—1990

[M.R. Crim. P. 3(b).] Rule 3 is amended to delete the requirement that

probable cause be established at the time a complaint is issued when a

defendant is not in custody or before the court. This requirement was

imposed on the assumption that an arrest warrant would be necessary in any

case where the defendant was not in custody or before the court. See M.R.

Crim. P. 3, Reporter's Note. This assumption is not accurate in the District

Court, as summonses are regularly used in minor criminal cases. Rule 4

establishes the procedure for obtaining an arrest warrant and can be used

when an arrest warrant is needed. Continuing the requirement of

establishing probable cause in every case in which a complaint is issued

would place a substantial administrative burden on the District Court.

Advisory Committee Note—1998

[M.R. Crim. P. 3(e).]

This new subdivision incorporates the last sentence

of now repealed Rule 5A, section b into Rule 3 dealing with the complaint. See

Advisory Committee Note to M.R. Crim. P. 5.

Advisory Committee Notes—2000

[M.R. Crim. P. 3(a).] This amendment is in response to the recent repeal

of 15 M.R.S. § 757 and the enactment of 17-A M.R.S. § 9-A in its stead. See P.L.

1999, ch. 196, effective September 18, 1999. New subsection 1 of section 9-A

directs, in relevant part, that “[t]he Supreme Judicial Court shall provide by rule

the manner of alleging the prior conviction in a charging instrument . . . .”

Because the Maine Judicial Information System equates new criminal conduct

with any new charging instrument or count thereof, the newly created

subdivision prohibits the use of an ancillary charging instrument or count and

requires instead that the allegation of a prior conviction be part of the

allegations constituting the principal offense. For efficiency purposes the newly

created subdivision also allows a prior conviction allegation accompanying a

principal offense in one count to be incorporated by reference in another count.

[M.R. Crim. P. 3(d).] See Advisory Committee Note to M.R. Crim. P. 7(e);

See also Advisory Committee Note to M.R. Crim. P. 3(a).

Advisory Committee Note—2003

[M.R. Crim. P. 3(a).] The amendment replaces the terms “felony” and

“misdemeanor” in subdivision (a) with appropriate references to the Maine

Criminal Code crime classification scheme and, by implication, the unclassed

crime of murder.

[M.R. Crim. P. 3(e).] This amendment deletes subdivision (e). See

Advisory Committee Note to M.R. Crim. P. 10.

[M.R. Crim. P. 3(f).] This amendment replaces the “incident number” as a

unique identifier with the “Arrest Tracking Number” and the “Charge Tracking

Number.” The change reflects the policy for the use of unique identifiers, at the

charge level, recently adopted by the Maine Criminal Justice Information

Systems Policy Board (16 M.R.S. §§ 633-637 (Supp. 2003)). Both the “Arrest

Tracking Number” and the “Charge Tracking Number” are defined in Rule 57.

See also Advisory Committee Note to M.R. Crim. P. 57.

Advisory Committee Note – March 2005

[M.R. Crim. P. 3(a) and (b).] These amendments are part of a broader

recommendation made by a team of trial court justices and judges and clerks of

court to streamline the process for initiating a criminal case that involves

murder or at least one Class A, Class B, or Class C crime, accompanied or

unaccompanied by related Class D or Class E crimes. Formerly such a case

was required to be commenced in the District Court and, unless waived or

preempted, necessitated that a bind-over hearing be held pursuant to Rule 5A.

The new process eliminates the need for a bind-over hearing by starting the

case in the Superior Court rather than the District Court. In this regard, such

a case will be commenced by filing a criminal complaint directly in the Superior

Court, unless an indictment has already been returned or an information filed

(except as to a murder charge). The new process, unlike that which it

replaces, encourages combining charges of Class C or higher crimes with

charges of Class D or Class E crimes in the same charging instrument when

permitted by Rule 8(a). Finally, the new process expressly recognizes the

authority of Superior Court justices to approve criminal complaints filed in the

Superior Court. The District Court still remains the court for initiating a

criminal case that involves only Class D or Class E crimes.

Advisory Committee Note – March 2005

[M.R. Crim. P. 3(d).] This amendment clarifies that a complaint may be

amended by the state as a matter of right at any time prior to completion of a

defendant’s initial appearance in District Court or Superior Court.

Advisory Note – June 2006

M.R. Crim. P. 3(f) and (g). The amendment redesignates subdivision (f)

and (g) to be (e) and (f) respectively. This redesignation was overlooked

when former subdivision (e) was deleted, effective January 1, 2004. See Me.

Rptr., 832-845 A.2d XXIV-XXV and XXXV.

Advisory Note – May 2014

The amendment modifies Rule 3, subdivision (a) by adding the words “or

other location” after the word “municipality” to make clear that not every

location within the criminal jurisdiction of the State in which a crime is alleged

to have occurred is physically within a municipality. The most common

examples are unorganized territories and locations outside any municipality on

the Atlantic Ocean. In the case of unorganized territories, some have formal

place names while others do not and thus necessitate referring to a numbered

township and range, for example “T9R8.” In the latter circumstance, it is

unnecessary to include further identification information such as “WELS.” In

the case of Atlantic Ocean locations, except for islands with formal place names,

location is best identified by utilizing GPS coordinates.

RULE 4. ARREST WARRANT OR SUMMONS

(a) Definitions.

apply:

For purposes of this Rule the following definitions

(1) “Clerk” means a clerk or deputy clerk of the Unified Criminal Docket.

(2) “Electronic Arrest Warrant” means an arrest warrant, including a

bench warrant, issued pursuant to statute and this Rule that exists in electronic

form and is entered into, maintained, managed, enforced, executed or recalled

under the statewide warrant management system pursuant to 15 M.R.S. § 653

and this Rule.

(3) “Paper Arrest Warrant” means an arrest warrant issued pursuant to

statute and this Rule that exists in paper form rather than in electronic form

because it is excluded from the statewide warrant management system

pursuant to 15 M.R.S. § 652, or because it is not yet in electronic form due to it

being issued by a justice of the peace, issued by any judicial officer outside of

the business hours of the court, or due to the temporary unavailability of the

statewide warrant management system or other exigent circumstance

pursuant to 15 M.R.S. § 654(1).

(b) Grounds for Issuance of Arrest Warrant or Summons.

(1) Indictment. An indictment is grounds for issuance of an arrest

warrant or summons for the defendant named in the indictment.

(2) Probable Cause. Probable cause to believe that a crime has been

committed and that the defendant committed it is grounds for an arrest

warrant or summons for the defendant. Probable cause shall appear from the

information or complaint or from an affidavit or affidavits sworn to before the

court or other officer empowered to issue process against persons charged

with crimes against the State and filed with the information or complaint.

(3) Bench Warrant. A bench warrant may issue for a failure to appear

or for contempt or as provided by statute.

(1) Indictment. A clerk shall issue an arrest warrant or summons for the

defendant named in the indictment when so directed by the court or so

requested by the attorney for the State.

(2) Probable Cause. The court or, when duly authorized to do so, a

justice of the peace or clerk may issue an arrest warrant or summons based on

probable cause, as determined pursuant to subdivision (b)(2).

(3) Bench Warrant. The court may authorize the issuance of a bench

warrant physically or electronically. A clerk shall authorize the issuance of a

bench warrant physically or electronically when so directed by the court,

except in cases of contempt.

(d) Content of Arrest Warrant or Summons.

(1) Warrant. The arrest warrant shall bear the caption of the court or

division of the court from which it issues. It shall contain an electronic

signature of the court, or clerk issuing the arrest warrant electronically, or

contain a physical signature by the court or other person authorized to issue

arrest warrants in the event the arrest warrant issued is a paper warrant. It

shall contain the name of the defendant or, if the defendant’s name is unknown,

any name or description by which the defendant can be identified with

reasonable certainty. The arrest warrant shall contain available information

concerning the identity and location of the defendant, including, but not limited

to, photographs of the defendant, the defendant’s last known address identified

by town, county and geographic codes, the defendant’s date of birth, and any

distinguishing physical characteristics that will aid in the location of the

defendant and the execution of the warrant. It shall describe the crime

charged and indicate when applicable that it is a crime involving domestic

violence. It shall command that the defendant be arrested and brought

before the court. The amount of bail may be fixed by the court and physically

or electronically endorsed on the warrant.

(2) Summons. The summons shall be in the same form as the arrest

warrant except that it shall summon the defendant to appear before the court

at a stated time and place.

(e) Arrest Warrant Request Made by Applicant Outside the Presence

of the Court or Justice of the Peace.

(1) In General. The court or justice of the peace may, upon request of

the applicant, allow an arrest warrant request to be made outside the presence

of the court or justice of the peace if the court or justice of the peace determines

it to be a reasonable request under the circumstances.

(2) Procedures to be Applied. If the court or justice of the peace allows

the applicant to make the arrest warrant request outside the presence of the

court or justice of the peace the following procedures apply:

(A) The request must be in the form of a written affidavit transmitted by

reliable electronic means to the court or justice of the peace. The

contents of the affidavit must conform to Rule 4(d). The applicant, by

telephone or other reliable electronic means, must attest to its contents,

and the court or justice of the peace must acknowledge the attestation in

writing on the affidavit. Before ruling on the request, the court or

justice of the peace may hear evidence under oath or affirmation by

telephone or other reliable means that shall be taken down by a court

reporter or recording equipment, or otherwise recorded in a manner that

is capable of producing a record adequate for purposes of review.

(B) In addition to the written affidavit the applicant shall provide a

charging instrument and transmit it by reliable electronic means to the

court or the justice of the peace. The contents of the warrant must

conform to Rule 4(d). The transmission received by the court or justice

of the peace may serve as the original.

cause to believe that the grounds for the arrest exist, the court or justice

of the peace shall sign the proposed arrest warrant or a modified version,

enter the date and time of issuance on the warrant, and transmit it by

reliable electronic means to the applicant. The applicant shall promptly

provide a copy of the arrest warrant to the prosecutorial office (District

Attorney or Attorney General) with jurisdiction over the charges

designated in the warrant.

(3) Suppression Limited.

Absent a finding of bad faith, evidence

obtained from a warrant issued under this Rule is not subject to suppression

on the ground that issuing the warrant in this manner was unreasonable under

the circumstances.

(f) Management of Electronic or Paper Arrest Warrant.

(1) Electronic Arrest Warrant and Recall Order.

Electronic arrest

warrants, and all orders recalling electronic arrest warrants, shall be entered

into, stored, and retained in the electronic warrant docket management system

as provided in 15 M.R.S. § 653(1).

The electronic warrant docket

management system shall be the sole official record of electronic arrest

warrants issued and recalled pursuant to this Rule.

(2) Mandatory Filing and Entering Electronically of the Original of Certain

Paper Arrest Warrants. Unless the paper arrest warrant has already been

executed or recalled, the original of the following paper arrest warrants must

be filed and entered electronically into the warrant document management

system as follows:

(A) Any paper arrest warrant issued by a justice of the peace or issued by

any judicial officer outside of the regular business hours of a court must

be filed on the next regular business day and entered electronically by

the court as soon as possible thereafter. The filing must be made with

the court that would have jurisdiction and venue over a criminal action

resulting from the warrant. The original of any paper arrest warrant

filed with the court shall remain with the court.

(B) Any paper arrest warrant issued due to the temporary unavailability

of the statewide warrant management system or other exigent

circumstances must be filed on the next regular business day and entered

electronically by the court as soon as possible thereafter. The filing

must be made with the court that would have jurisdiction and venue over

a criminal action resulting from the warrant. The original of any paper

arrest warrant filed with the court shall remain with the court.

Once a paper arrest warrant described in paragraph (A) and (B) is entered

electronically into the warrant docket management system, the resulting

electronic arrest warrant becomes the sole official arrest warrant.

(3) Filing of Paper Arrest Warrants Excluded from the Electronic Warrant

Docket Management System. Any paper warrants specifically excluded from

the electronic warrant docket management system pursuant to 15 M.R.S. § 652

shall continue to be filed as follows:

(A) The original shall be filed with the court that would have jurisdiction

and venue over a criminal action resulting from the warrant; and

(B) An attested copy shall be filed with the appropriate arrest warrant

repository or the investigating agency, as provided by former 15 M.R.S.

ch. 99 and the former standards issued pursuant to that chapter.

(g) Execution of Electronic or Paper Arrest Warrant or Service of

Summons.

(1) By Whom. The electronic arrest warrant or paper arrest warrant

shall be executed by any officer authorized by law. The summons may be

served by any constable, police officer, sheriff, deputy sheriff, marine patrol

officer of the Department of Marine Resources, warden of the Department of

Inland Fisheries and Wildlife, or any person authorized to serve a summons in

a civil action.

(2) Territorial Limits. The warrant may be executed or the summons

may be served at any place within the State of Maine.

(3) Manner of Execution of Electronic or Paper Arrest Warrant. The

electronic arrest warrant or paper arrest warrant shall be executed by the

arrest of the defendant.

If execution is of an electronic arrest warrant,

showing the warrant to the defendant is not possible. If execution is of a

paper arrest warrant, the officer need not have the warrant in the officer’s

possession at the time of the arrest but, upon request, the officer shall show the

warrant to the defendant as soon as possible. If the officer is executing an

electronic arrest warrant or if the officer does not have the paper arrest

warrant in his or her possession at the time of the arrest, he or she shall inform

the defendant of the crime charged and of the fact that an arrest warrant has

been issued. The officer executing the electronic arrest warrant or paper

arrest warrant shall bring the arrested defendant promptly before the court.

If the arrest is made at a place 100 miles or more from the court designated in

the warrant, the defendant arrested, if bail has not been previously set or

denied by the court, shall be taken before the nearest available court or, if

authorized to set bail for the crime charged pursuant to Maine Bail Code, before

the nearest available bail commissioner.

(4) Service of Summons. The clerk shall mail a summons to the

defendant’s last known address or shall deliver it to any officer authorized by

law to execute or serve it or to the attorney for the State, unless the defendant

is in custody or otherwise before the court. More than one summons may

issue for a defendant. Personal service is effected by delivering a copy to the

defendant personally or by leaving it at the defendant’s dwelling house or usual

place of abode with some person of suitable age and discretion then residing

therein. A summons to a corporation shall be served in the same manner as a

summons to a corporation is served in a civil case.

(5) Failure of Service or Failure to Appear in Response to Summons. If a

mailed summons is returned undelivered or if a defendant cannot be personally

served or if a defendant fails to appear in response to a summons, the clerk shall

request the court to authorize a bench warrant.

(h) Return of Electronic or Paper Arrest Warrant or Summons.

(1) Warrant. The officer executing an electronic arrest warrant shall

make a return of the warrant as provided by 15 M.R.S. ch. 100 and the standards

issued pursuant to that chapter. The officer executing a paper arrest warrant

shall make a return of the warrant as provided by former 15 M.R.S. ch. 99 and

the former standards issued pursuant to that chapter.

(2) Summons. On or before the return day, the person to whom a

summons was delivered for service shall make return thereof. At the request

of the attorney for the State made at any time while the charge is pending, a

summons returned unserved or a duplicate thereof may be delivered by the

clerk to any authorized person for service.

Advisory Note – May 2025

The amendment adds new subdivision (e) to Rule 4 to provide a

procedure for arrest warrant requests made outside the presence of the court

or justice of the peace. The procedure incorporated in the amendment tracks

the procedure in M.R.U. Crim. P. 41C for search warrant requests made outside

the presence of the court or justice of the peace. Former subdivisions (e)

through (g) are amended to become subdivisions (f) through (h).

Committee Advisory Note [December 2014]

The Rule parallels the content of Rule 4 of the Maine Rules of Criminal

Procedure but differs in the following respects.

First, in subdivision (a)(1) the word “clerk” is defined to mean a clerk or

deputy clerk “of the Unified Criminal Docket” rather than “of the District Court

or Superior Court.”

Second, in subdivision (b)(2), (c)(2), (3) and (d) the word “court”

replaces the words “a Supreme Court Justice, a District court Judge” or its

variant “a justice [or] judge.” See Committee Advisory Note [December 2014]

to M.R.U. Crim. P. 3(b) and (d).

Third, in subdivision (c)(1), (f)(4) and (g)(2) the letter “s” in the word

“state” is capitalized because it is used in the term “attorney for the State.” See

Committee Advisory Note [December 2014] to M.R.U. Crim. P. 3(d) and (f).

Fourth, in the heading of subdivision (e) the word “Issued” is deleted as

unnecessary.

Fifth, in subdivision (e)(1) the former references to the “Judicial Branch

warrant docket management system” and the “warrant docket management

system” have been modified to each read “electronic warrant docket

management system” for purposes of consistency within the Rule and clarity.

Sixth, in subdivision (f)(3) the word “defendant” replaces the word

“person” for purposes of consistency within the paragraph.

Seventh, in subdivision (f)(3) procedure is added in the event the arrest

is made at a place 100 miles or more from the court designated in the warrant.

In such a circumstance, unless bail has previously been set or denied, the

arrested defendant must be taken either before the nearest available court, or,

unless not authorized to set bail for the crime because of 15 M.R.S. §§ 1023(4)

and 1092(4), before the nearest available bail commissioner.

__________________________________________________________________

[Advisory Notes to former Maine Rules of Criminal Procedure]

Advisory Committee Note – 1983

[M.R. Crim. P. 4(a).]

The amendment explicitly validates the

commendable practice in some district attorneys’ offices of keeping centralized

control of all outstanding warrants.

Advisory Committee Note – 1988

[M.R. Crim. P. 4(c)(1).] The amendment corrects erroneous references

to two state Departments, wardens of which are, authorized to serve criminal

summons.

Advisory Committee Note – 1990

[M.R. Crim. P. 4.] Rule 4 is rewritten to merge former Rule 4 with former

Rule 9. As both former rules were concerned with the issuance, form, execution

or service, and return of an arrest warrant or summons, the Advisory

Committee was of the view that merging the two rules would remove

unnecessary duplication from the rules. In addition, the section of the rule on

return of process was amended to make clear that return of a warrant or

summons must be made to the court and not to a particular District Court judge

and that an unexecuted warrant or unserved summons could be delivered by a

court clerk to an authorized person for execution or service.

Advisory Committee Note – 1993

[M.R. Crim. P. 4(a)(4), (a)(5), (b)(1), (d).] Rule 4 is amended to conform

to Chapter 402 of the Public Laws of 1992, which inserted a new chapter

(Chapter 94) into Title 15.

Rule 4(a)(5) incorporates the statute’s provisions for possession of

the arrest warrant.

Rule 4(b) tracks the statute’s provisions for the contents of the arrest

warrant contained in 15 M.R S.A. § 605(4).

Rule 4(d) incorporates the statute’s provisions for making a return on

the warrant.

Advisory Committee Notes – 2001

[M.R. Crim. P. 4(a).] This amendment reorganizes the content of

subdivision (a) by transferring the current substance of the first sentence of

paragraph (3) into paragraphs (1) and (2) and transferring to subdivision (c)

treatment both of the consequences of a defendant’s failure to respond to a

summons, currently found in the second sentence of paragraph (3), and

delivery of a summons, currently found in paragraph (4). Further, current

paragraph (5) of subdivision (a) is renumbered paragraph (3) since current

paragraphs (3) and (4) are stricken. Still further, the citation form of a statutory

reference in current paragraph (5) of subdivision (a) is changed. Finally,

paragraph (1) of subdivision (a) is amended to conform it to the Rule 7(c)

requirement that an indictment may charge only one defendant.

[M.R. Crim. P. 4(c)(4).] This amendment clarifies that a clerk may serve a

summons by mail.

[M.R. Crim. P. 4(c)(5).] This amendment adds paragraph (5) to clarify that

in response to nonappearance, or an undelivered mailed summons, or in the

event a defendant cannot be personally served, the clerk must request the court

to authorize a warrant.

[M.R. Crim. P. 4(d)(1).] This amendment changes the citation form of a

statutory reference.

Advisory Committee Note – March 2005

[M.R. Crim. P. 4(a)(2).] The amendment adds “a Superior Court justice”

to the list of those who are authorized to issue a warrant of arrest or summons

of persons charged by way of information or complaint upon a finding of

probable cause. Although a justice of the Superior Court has the power to

issue processes in criminal cases by statute (15 M.R.S. § 702), because cases

involving a Class C or above crime (accompanied or unaccompanied by related

Class D or Class E crimes) will now be initiated in the Superior Court rather than

the District Court, an express reference to “a Superior Court justice” becomes

important. See also Advisory Committee Note to M.R. Crim. P. 3(a) and (b).

Advisory Note – June 2006

M.R. Crim. P. 4. The amendment does four things. First, the rule is

reorganized to better track the sequence of the process. Subdivision (a) now

addresses the grounds for issuance of a warrant or summons only. Who may

issue the warrant or summons and possession of a warrant, both formerly

found in subdivision (a), are transferred to new subdivisions (b) and (d)

respectively. Current subdivisions (b), (c) and (d) are redesignated (c), (e)

and (f) respectively.

The provision on possession of the warrant is

transferred from Rule 4(a)(3) to Rule 4(d) because possession occurs later in

the process than the topics covered by subdivisions (a), (b) and (c).

Subdivision (d) sensibly retains the present rule that the issuing court maintain

possession of the original warrant. Second, subdivision (a), paragraph (3)

adds to the rule grounds for issuance of a bench warrant – to wit: “A bench

warrant may issue for a failure to appear or for contempt or as provided by

statute.” The reference to statutory authorization is intended to cover special

circumstances, such as those currently found in 17-A M.R.S. §§ 1348-B(7) and

1349-D(4). Third, subdivision (b), paragraph (2) identifies those officers

empowered to issue process for the arrest of persons charged with crimes.

Fourth, subdivision (b) incorporates the warrant provisions of Administrative

Order JB-05-17, Issuance of Warrants, effective August 1, 2005 and includes in

the definition of “clerk”, Superior Court clerks and deputy clerks. The 122nd

Legislature recently enacted as emergency legislation 4 M.R.S. § 107-A allowing

any clerk or deputy clerk of the Superior Court to issue process for the arrest of

persons charged with crimes if authorized to do so by the Chief Justice of the

Superior Court. See P.L. 2005, ch. 540, § 1 (effective April 5, 2006). District

Court clerks and deputy clerks already have parallel legislative authority. 4

M.R.S. § 161.

Advisory Note – April 2012

The amendment modifies Rule 4 to accommodate the recent statutory

creation of the electronic arrest warrant accompanied by an electronic arrest

warrant repository system pursuant to 15 M.R.S. ch. 100, enacted by P.L. 2011,

ch. 214, § 2, effective February 1, 2012. The act eliminates in large measure

reliance upon paper arrest warrants and the paper arrest warrant repository

system with the repeal of 15 M.R.S. ch. 99 by P.L. 2011, ch. 214 § 1. However,

the act leaves in place the previously existing paper arrest warrant repositories

to manage and enforce the limited number of paper warrants that will

nonetheless continue to exist. See P.L. 2011, ch. 214, § 5. Although the actual

application process, the grounds for issuance and who may issue an arrest

warrant remains unchanged, Rule 4 is changed to address the content,

management, execution and return of both electronic and paper arrest

warrants.

The specific changes to Rule 4 are as follows:

First, because it is now necessary to provide an explanation as to the

meaning of an “electronic arrest warrant” and identify those arrest warrants

that will, at least initially, be issued in paper form rather than electronically, a

new subdivision (a) has been added entitled “Definitions.” In addition to the

terms “electronic arrest warrant” and “paper arrest warrant,” the preexisting

definition of “clerk,” formerly located in subdivision (b)(4), is relocated to new

subdivision (a). The addition of the new subdivision (a) necessitates the

redesignation of subdivisions (a) through (f) to be subdivisions (b) through (g),

respectively.

Second, newly redesignated subdivision (d)(1) respecting the content of

the arrest warrant now requires an electronic signature (10 M.R.S. § 9402(8))

in the case of an electronically issued warrant rather than a physical signature

as in the case of a paper warrant. Further, notwithstanding which form is

employed, the content of the arrest warrant must include, when applicable, an

indication that the crime charged is a crime involving domestic violence as

required by 15 M.R.S. § 654(3)(D). See also 15 M.R.S. § 1003(3-A).

Third, newly redesignated subdivision (e) now addresses the

management of both electronic arrest warrants (paragraph (1)) and paper

arrest warrants (paragraph (3)), once issued. Paragraph (2) of subsection (e)

mandates that all paper arrest warrants issued by a justice of the peace, issued

by any judicial officer outside of the business hours of the court, or issued

during the temporary unavailability of the statewide warrant management

system or other exigent circumstances pursuant to 15 M.R. S. § 654 (1), be

promptly filed and entered electronically when feasible unless already

executed or recalled. Further, whether an arrest warrant is issued from the

outset in electronic form (paragraph (1)) or converted from an initially issued

paper form (paragraph (2)), the warrant docket management system is the sole

official record of the electronic arrest warrant, its execution and return or

recall.

Fourth, newly redesignated subsection (f) now addresses the execution

of both electronic arrest warrants and paper arrest warrants. In paragraph

(3) it makes clear that, unlike a paper warrant, it isn’t possible to show an

electronic warrant to the defendant. However, as in the case of an officer not

having in his or her possession the paper arrest warrant at the time of arrest,

the defendant must be informed of the crime charged and the fact that an arrest

warrant has been issued.

Fifth, newly redesignated subsection (g)(1) now addresses the return of

both electronic arrest warrants and paper arrest warrants. The return in

electronic form is as provided by 15 M.R.S. ch. 100 and the standards issued

pursuant to that chapter. The return in paper form is as formerly provided by

15 M.R.S. ch. 99 and the former standards issued pursuant to that chapter.

Sixth, distinct from the changes necessitated by the addition of electronic

paper warrants addressed above, to enhance clarity the word “arrest” has been

added preceding the word “warrant” in redesignated subdivisions (b) through

(g) and the word “bench” has been added before the word “warrant” in

redesignated subdivision (f)(5).

RULE 4A.

PROBABLE CAUSE DETERMINATION UPON WARRANTLESS

ARREST FOR ANY CRIME

(a) Timing: Required Findings. Except in a bona fide emergency or

other extraordinary circumstance, when a defendant arrested without a

warrant for any crime is not released from custody within 48 hours after arrest,

including Saturdays, Sundays, and legal holidays, the court or justice of the

peace shall determine, within that time period, whether there is probable cause

to believe that a crime has been committed and that the arrested defendant has

committed it. If the evidence does not establish such probable cause, the court

or justice of the peace shall discharge the arrested defendant. If a probable

cause determination has not taken place within 36 hours after the arrest,

including Saturdays, Sundays, and legal holidays, the custodian shall notify the

attorney for the State of the upcoming deadline. For purposes of this Rule

“custody” means incarceration. Rule 45(a) and (b) have no application to this

subdivision.

(b) Evidence. In making this determination the court or justice of the

peace shall consider:

(1) the sworn complaint;

(2) an affidavit or affidavits, if any, filed by the State;

(3) a sworn oral statement or statements, if any, made before the court

or justice of the peace that is reduced to writing or electronically recorded by

equipment that is capable of providing a record adequate for purposes of

review. The court or justice of the peace may administer the oath and receive

an oral statement by telephone.

be endorsed on the complaint or other appropriate document and filed

together with the sworn complaint, affidavit(s), or other written or recorded

record with the clerk of the Unified Criminal Docket having jurisdiction of the

crime for which the arrested defendant is charged.

Committee Advisory Note [December 2014]

The Rule parallels the content of Rule 4A of the Maine Rules of Criminal

Procedure but differs in the following respects.

First, in subdivision (a) and (b) the word “court” replaces the words “a

Superior Court justice, a District Court judge.” See Committee Advisory Note

[December 2014] to M.R.U. Crim. P. 57(d).

Second, in subdivision (a) the letter “s” in the word “state” is capitalized

because the word is used in the term “attorney for the State.” See Committee

Advisory Note [December 2014] to M.R.U. Crim. P. 3(d) and (f).

Third, in subdivision (b) the letter “s” in the word “state” is capitalized

because it is referring to the “State” as a party.

Fourth, in subdivisions (a) and (c) the word “defendant” replaces the

word “person” to make the Rule internally consistent and with the other new

Rules. See e.g., Rules 4 and 5.

Fifth, in subdivision (b)(3) the word “that” replaces the word “which” to

reflect modern usage.

Sixth, in subdivision (c) the words “Unified Criminal Docket” are added

after the word “the” and before the word “having” for purposes of clarity.

__________________________________________________________________

[Advisory Notes to former Maine Rules of Criminal Procedure]

Advisory Committee Note—1998

[M.R. Crim. P. 4A.]

This rule is newly created to incorporate the

provisions of former Rule 5(d). Separate reference to the probable cause

determination under former Rule 5(d) is necessary because it oftentimes is not

part of the Rule 5 initial appearance proceeding and because it eliminates

confusing references to two different 48 hour deadlines in Rule 5, one exclusive

of weekends and holidays and one inclusive of weekends and holidays.

Finally, two modifications have been made to former 5(d) to better address

County of Riverside v. McLaughlin, 500 U.S. 44 (1991). First, the rule expressly

recognizes that postponement of a probable cause determination beyond 48

hours of arrest can be appropriate in a particular case in a bona fide emergency

or other extraordinary circumstance. Second, the rule requires that if a

determination of probable cause has not taken place within 36 hours, the

custodian must notify the attorney for the State. Within the next 12-hour

period, the attorney for the State can both assess the situation and provide

proper guidance to the custodian.

Advisory Committee Note – March 2005

[M.R. Crim. P. 4A(a) and (b).] The amendments add “a Superior Court

justice” to the list of those judicial officers responsible for conducting probable

cause determinations to comply with County of Riverside v. McLaughlin, 500 U.S.

44 (1991). The addition is in recognition that cases involving a Class C or

above crime (accompanied or unaccompanied by related Class D or Class E

crimes) will now be initiated in the Superior Court rather than the District

Court. See also Advisory Committee Note to M.R. Crim. P. 3(a) and (b).

Advisory Note – June 2006

M.R. Crim. P. 4A. The amendment does five things. First, it adds the

words “for any crime” to the Rule heading and to the first sentence of

subdivision (a) to make clear that the post-arrest probable cause determination

required under County of Riverside v. McLaughlin, 500 U.S. 44 (1991) applies to

a warrantless arrest for any crime, misdemeanor and felony alike. Second, it

replaces the word “defendant” in subdivision (a) with the words “arrested

person” to better identify the person’s actual status. For the same purpose,

the word “arrested” has been added in subdivision (c). Third, it makes clear

that neither subdivision (a) nor subdivision (b) of Rule 45 have application to

subdivision (a). Fourth, it redesignates paragraphs (i), (ii) and (iii) in

subdivision (b) to be paragraphs (1), (2) and (3) respectively. The latter

redesignations reflect the standard division designation for paragraphs found

throughout the Maine Rules of Criminal Procedure. Fifth, it replaces the term

“offense” with the term “crime” in subdivision (c). This reference was

overlooked when a similar reference in subdivision (a) was replaced with

“crime” effective January 1, 2004. See Me. Rptr., 832-845 A.2d XLIX, LII.

Advisory Note – July 2012

See Advisory Note – July 2012 to M.R. Crim. P. 5(b) and (c). See also

Advisory Note – July 2012 to M.R. Crim. P. 5C(b) and (d).

[Because the purpose and requirements of Rule 4A and practice in

implementing Rule 4A are addressed in Rule 4A and the Advisory Notes to the

recent amendments, no additional comments are provided at this time.

Standards for determination of probable cause are addressed in Comments to

Rule 41A.]

RULE 5. INITIAL PROCEEDINGS IN THE UNIFIED CRIMINAL DOCKET

(a) Initial Appearance Before the Court. A defendant arrested for

any crime, either under a warrant issued upon an indictment or upon an

information or complaint filed in the Unified Criminal Docket or without a

warrant, who is not sooner released, shall be brought before the court without

unnecessary delay and in no event later than 48 hours after the arrest,

excluding Saturdays, Sundays, legal holidays, and court holidays. Such

appearance may be by audiovisual device in the discretion of the court. If such

appearance has not taken place within 36 hours after the arrest, the custodian

shall notify the attorney for the State of the upcoming deadline. If such

appearance has not taken place within 48 hours after the arrest, excluding

Saturdays, Sundays, legal holidays, and court holidays, the custodian shall

release the defendant from custody or bring the defendant forthwith before the

court for such appearance.

(1) Defendants Arrested Under a Warrant. Defendants arrested under a

warrant issued upon an indictment, an information, or a complaint filed in the

Unified Criminal Docket shall be taken before the court. If the arrest is made

at a place 100 miles or more from the court designated in the warrant, the

defendant arrested, if bail has not been previously set or denied by the court,

shall be taken before the nearest available court or, if authorized to set bail for

the crime charged pursuant to the Maine Bail Code, before the nearest available

bail commissioner, who shall admit the defendant to bail for appearance before

the court where the indictment, information, or complaint has been filed.

Such appearance should be scheduled for no fewer than 14 days and not more

than 42 days after the arrest. A determination of probable cause pursuant to

Rule 4A shall not be made.

(2) Defendants Arrested Without a Warrant.

Defendants arrested

without a warrant shall be taken before the court. The complaint or

information shall be filed in the Unified Criminal Docket forthwith. A

determination of probable cause shall be made in accordance with Rule 4A

unless an indictment has been returned.

(b) Initial Statement of Rights by the Court. When a defendant

arrested, either under a warrant issued upon an indictment, an information, or

upon a complaint filed in the Unified Criminal Docket or without a warrant is

brought before the court or a defendant who has been summonsed appears

before the court in response to a summons, the court, in open court, shall,

unless waived by the defendant’s counsel, inform the defendant of:

(1) the substance of the charges against the defendant;

(2) the defendant’s right to retain counsel, and to request the assignment

of counsel and to be allowed a reasonable time and opportunity to consult

counsel before entering a plea;

(3) the right to remain silent and that the defendant is not required to

make a statement and that any statement made by the defendant may be used

against the defendant;

(4) the maximum possible sentence, and any applicable mandatory

minimum sentence; and

(5) the defendant’s right to trial by jury.

The statement of rights required to be given by this Rule shall be stated

live to the defendant in open court by the court, or stated by the court in a video

recording viewed by the defendant before his or her first appearance.

or Higher Crimes in the Absence of an Indictment or Information. A

defendant charged by complaint with any Class C or higher crime shall not be

called upon to plead to that Class C or higher crime, and the defendant shall be

advised of the right to apply for a waiver of indictment pursuant to Rule 7(b)

and to enter any plea upon a complaint or an information after a waiver is

accepted. No defendant charged with murder shall be allowed to plead guilty

or nolo contendere before indictment.

(d) Pleas at Initial Appearance. A defendant charged with a Class D

or Class E crime (and not charged with related Class C or higher crimes) shall

be called upon to plead after that defendant has been provided with the

statement of rights required by subdivision (b), unless that defendant has

requested a reasonable time and opportunity to consult with counsel.

If a defendant charged with a Class D or Class E crime who is not

represented by a lawyer for the day or other counsel pleads “not guilty” or for

whom a plea of “not guilty” is entered by the court, the court shall ensure that

the defendant is aware of his or her right to trial by jury.

Before accepting a guilty or nolo contendere plea from a defendant

charged with a Class D or Class E crime, the court shall comply with the

requirements of Rule 11(g).

Before accepting a guilty or nolo contendere plea from a defendant

charged with a Class C or higher crime, the court shall comply with the

requirements of Rule 11(b).

(e) Assignment of Counsel. When a person is entitled to courtappointed counsel, the court shall assign counsel to represent the defendant

not later than the time of the initial appearance, unless the person elects to

proceed without counsel. Counsel may be assigned, or a lawyer for the day may

be designated, for the limited purpose of representing the person at the initial

appearance or arraignment. The determination of indigency and the

assignment and compensation of counsel shall be governed by the provisions

of Rules 44, 44A, 44B, and 44C.

Committee Advisory Note [December 2014]

The Rule merges Rules 5 and 5C of the Maine Rules of Criminal Procedure

into a single rule addressing initial proceedings in the Unified Criminal Docket

for defendants arrested or summonsed for any crime (misdemeanor or felony).

Rule 5B of the Maine Rules of Criminal Procedure is abandoned as no longer

relevant given the unified criminal process.

The Rule parallels the content of Rules 5 and 5C but differs in the

following respects.

First, the Rule replaces all references to “the Superior Court or the

District Court,” with the words “Unified Criminal Docket.”

Second, the word “court” replaces all references to “a District Court judge

or a Superior Court justice.” See Committee Advisory Note [December 2014]

to M.R.U. Crim. P. 57(d).

Third, in subdivision (a) the letter “s” in the word “state” is capitalized

because the word is used in the term “attorney for the State.” See Committee

Advisory Note [December 2014] to M.R.U. Crim. P. 3(d) and (f).

Fourth, in subdivision (a) the word “defendant” replaces the word

“person” to make the Rule internally consistent.

Fifth, in subdivision (a)(1) the words “if authorized to set bail for the

crime charged pursuant to the Maine Bail Code” are added in light of 15 M.R.S.

§§ 1023(4) and 1092(4). See Committee Advisory Note [December 2014] to

M.R.U. Crim. P. 4(f)(3).

Sixth, in subdivision (a)(1) timing relates to a defendant’s appearance

before the court where the indictment, information, or complaint has been filed.

Specifically, “[s]uch appearance should be scheduled for no fewer than 14 days

and not more than 42 days after the arrest.”

Seventh, in subdivision (b) the word “before” replaces the phrase “prior

to” to reflect modern usage.

Eighth, in subdivision (c) the words “pursuant to Rule 7(b)” is added

following the word “indictment” both for the purpose of clarity and consistency

with Rule 11(f).

__________________________________________________________________

[Advisory Notes to former Maine Rules of Criminal Procedure]

Advisory Committee Note—1974

[M.R. Crim. P. 5(c).]

The amendment to this rule requires that

preliminary examinations be electronically recorded in accordance with the

provisions of District Court Criminal Rule 39A providing for electronic sound

recording, which is effective simultaneously. See Advisory Committee’s Note to

that rule.

Advisory Committee Note—1980

[M.R. Crim. P. 5.] The purpose of the proposed amendment of

Criminal Rule 5 is two-fold. First, the requirement that an arrested person

be taken before a magistrate within the division of the arrest is eliminated,

and a specific time limit is placed on the amount of delay permitted

between the time of arrest and the time of the first court appearance

before a magistrate. Second, an express requirement that a judicial

determination of probable cause be made at a defendant’s first appearance

is included in the Rule.

Paragraph (a). The requirement that an arrested person be taken

before a magistrate within the division of arrest is eliminated and a specific

time limit is added.

Paragraph (b). Because of the 48-hour requirement in paragraph (a),

there will be cases where an attested person is taken before a magistrate out of

the division of arrest, and a formal complaint has not been filed by the time of

the first appearance be fore the magistrate. The requirement that the

magistrate inform a person of the complaint against him has been expanded to

cover those cases where a complaint has not yet been filed.

Paragraph (c) is new. The purpose of this paragraph is to insure that

counsel is assigned promptly. Because defendants may be appearing out of the

division of arrest, this paragraph expressly authorizes the magistrate to

appoint counsel for the limited purpose of representing the defendant at the

first appearance or arraignment only.

Paragraph (d) is new. This paragraph is designed to satisfy the rationale

of Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975).

Paragraph (e). The term “bind-over hearing” has been used to highlight

the distinction between the “preliminary examination,” for which “bind-over

hearing” is a synonym, and the Gerstein v. Pugh hearing described in

paragraph (d). While the latter may be had before a magistrate outside the

division of arrest, the bind-over hearing generally should be scheduled in the

division of the arrest, or, in the case of an arrest under a warrant, in the

division commanded in the warrant.

Advisory Committee Note—1989

[M.R. Crim. P. 5.]

The functions of a District Court judge at a

defendant’s initial appearance depend on whether the charge is within the

trial jurisdiction of the District Court. Rule 5 provided for the initial

appearance on a charge of a Class C or higher crime, while District Court Rule

5 provided for the initial appearance on a charge of a Class D or Class E crime.

The merger preserves the distinction. New Rule 5 is derived from Rule 5, while

new Rule 5A is derived from District Court Rule 5.

The last paragraph of Rule 5(e) is derived from the last paragraph of Rule

7(b). This transfer is appropriate because the time when the District Court

judge should notify the bound-over defendant of the possibility of proceeding

by information is at the bind-over hearing.

District Court Rule 5(b), dealing with arraignment, is transferred to the

arraignment rule, Rule 10.

The rules use the term “District Court judge” instead of “Magistrate” for

the sake of clarity; there is no Maine judicial officer called a “Magistrate.”

Advisory Committee Note—1991

[M.R. Crim. P. 5(d).] The previous language of the second paragraph

appeared to limit the flexibility of the judge in selecting the source or sources

from which to derive the determination of probable cause. This was due to the

fact that the subparagraphs were joined by the connective “or.” The present

language was adopted during the recent merger in order to increase the

judge’s flexibility in selecting the source or sources, but it has not had the

intended effect. The proposed language states what the judge shall consider in

making the determination of probable cause but is deliberately silent as to

what source or sources the judge may select to derive the determination of

probable cause. The proposed language should promote the original intent of

increasing judicial flexibility in selecting the source or sources. Thus, in an

unusual case where the sworn complaint sets forth sufficient facts from which

the judge may determine that probable cause exists, an additional source is

unnecessary.

Advisory Committee Note—1992

[M.R. Crim. P. 5(d).] In County of Riverside v. McLaughlin, 111 S. Ct.

1661 (1991), the United States Supreme Court held that a probable cause

determination generally must be made within 48 hours after a warrantless

arrest and that, in computing the 48-hour period, weekends and holidays may

not be excluded from the computation. Since the combined effect of present

Rules 5(a) and (d) and Rules 5A(a) and (d) of the Maine Rules of Criminal

Procedure is to permit just such an exclusion, Rules 5 and 5A should be

amended to excise this unconstitutional exclusion. The proposed amendment

requires that weekends and holidays be included in the computation of the

48-hour period. The practical effect of the amendment is that some probable

cause determinations required by Rules 5 and 5A will need to be made on a

Saturday, Sunday or holiday.

In order to accommodate this situation, three practical procedural steps

are proposed: (1) reduce the number of cases in which a probable cause

determination must be made to those in which a determination is

constitutionally required; (2) enlarge the number of judicial officers who may

decide the issue; and (3) adopt procedural mechanisms to ease travel

requirements.

A determination is constitutionally required to be made only in cases of

“detention following a warrantless arrest” (Riverside, 111 S. Ct. at 1665). Thus

if a defendant is arrested pursuant to an arrest warrant or is released on bail

within the 48-hour period, the federal constitution does not require that a

probable cause determination be made. Subdivision (d) of Rules 5 and 5A

presently requires a determination if an arrest warrant is issued by a clerk of

court or if the defendant is released “under any condition of release except

personal recognizance.” The amendment deletes both requirements. The

Committee believes that quality control of clerks’ warrants is best undertaken

through the supervisory authority of the Chief Judge of the District Court

pursuant to 4 M.R.S. § 161. The Committee also believes that the present broad

definition of “custody” is unsuited to the new situation.

The amendment enlarges the number of judicial officers who may decide

the issue by authorizing justices of the peace to take any action required by

subdivision (d) of Rules 5 and 5A.

The amendment would ease travel requirements by authorizing the

judicial officer to perform by telephone the administration of oaths and the

receipt of oral statements.

Advisory Committee Note—1994

[M.R. Crim. P. 5(a).] The amendment, in conjunction with new Rule 5B,

authorizes the Chief Justice of the Supreme Judicial Court to issue an

administrative order approving the experimental use of audiovisual devices in

specified district courts for a specified period of time under specified

conditions in certain limited situations. These situations are: (1) The initial

appearance of a defendant in custody pursuant to Rule 5 or 5A, including a bail

hearing: (2) The arraignment of a defendant in custody charged with a Class D

or E offense.

[M.R. Crim P. 5(b) and 5(e).] Pre-conviction bail procedure for a

defendant is largely, although not entirely, dictated by the Maine Bail Code (15

M.R.S. ch. 105-A) rather than by rule. See M.R. Crim. P. 46(a). The amendment

reflects this fact. Comparable amendments are made to Rules 5(e), 5A(b), and

42(b).

Advisory Committee Note—1998

[M.R. Crim. P. 5.] This amendment is intended to streamline and clarify

Rule 5 by splitting off into separate new rules subdivisions (d) and (e), dealing

with initial probable cause determinations for warrantless arrests and with

bind-over hearings, respectively, which are not part of the Rule 5 initial

appearance.

This amendment is also intended to incorporate certain

provisions of former Rule 5A, which has been repealed because it is largely

duplicative of Rule 5. This amendment also eliminates the requirement that a

person arrested on a warrant demand to be brought before the nearest

available District Court judge or bail commissioner if the person has been

arrested more than 100 miles from the place where the warrant issued. This

amendment also clarifies that the person shall have a reasonable amount of

time to consult with counsel before entering a plea. This amendment also

requires District Court judges to inform a person charged with a Class D or E

crime of the maximum penalties and any applicable mandatory minimum

penalties before calling on the person to plead. Finally, the rule provides that

at the end of 36 hours if the initial appearance before a District Court judge has

not as yet taken place, the custodian must notify the attorney for the State.

Within the remaining period the attorney for the State can both assess the

situation and provide proper guidance to the custodian.

Advisory Committee Notes—1999

[M.R. Crim. P. 5.] This amendment identifies the District Court to which

a person arrested under a warrant is to be brought as that “designated in the

warrant” rather than as “within the division within which the warrant was

issued.” The amendment is also intended to clarify that a District Court Judge

or bail commissioner should not alter a preexisting order of a court setting or

denying bail. Finally, the amendment further clarifies that a person charged

with a Class D or E crime may not be called upon to plead if that person has

requested a reasonable time and opportunity to consult with counsel.

Advisory Committee Notes—2000

[M.R. Crim. P. 5.] This amendment, in conjunction with new Rule 5C,

clarifies that Rule 5 governs initial proceedings in the District Court upon the

filing of a complaint or an information (with waiver of indictment) only. New

Rule 5C governs initial proceedings in the Superior Court following the filing of

an indictment or information (with waiver of indictment). Apart from a number

of purely formalistic modifications, this amendment to Rule 5 makes three

additional changes. First, in subdivision (a) the phrase “court holidays” has

been added to serve, in addition to “Saturdays, Sundays and legal holidays,” as

an exception to the requirement that the person in custody must appear before

the court within 48 hours following arrest. “Court holidays” would include

those nonjudicial days, although not a weekend or legal holiday, in which the

court is simply not available due to, for example, judicial conferences, employee

vacations, sickness or inclement weather. Postponement for “court holidays”

beyond 48 hours, unlike Rule 4A, does not implicate County of Riverside v.

McLaughlin, 500 U.S. 44 (1991). Second, in subdivision (a) the consequence of

exceeding 48 hours - namely, release from custody (on bail) - is clarified to

ensure that the custodian, if a court is immediately available, has the additional

option of getting the person before the court for that person’s initial

appearance. Third, and finally, in paragraph (1) of subdivision (a) a person

arrested under a warrant may now be taken “to the nearest available District

Court” as an alternative to the District Court “designated in the warrant.”

Advisory Committee Notes—2001

[M.R. Crim. P. 5(c).] This amendment requires the court at the initial

appearance to provide the notice that is required by 14 M.R.S. § 3141(2)—

namely, that if the person is “. . . convicted of the criminal offense and if a fine is

imposed by the court, immediate payment of the fine in full is required.”

[M.R. Crim. P. 5(d).]

See Advisory Committee Note to M.R. Crim. P. 5(c).

Advisory Committee Note – March 2005

[M.R. Crim. P. 5.] The amendment makes changes reflecting that

although the District Court shall remain the court for initiating a criminal case

that involves Class D or Class E crimes, the District Court no longer is the court

for initiating a criminal case that involves murder or at least one Class A, Class

B, or Class C crime, accompanied or unaccompanied by related Class D or Class

E crimes. Under the new process, any case involving at least one felony must

be commenced by filing a criminal complaint directly in the Superior Court

rather than in the District Court as has been the case. See also Advisory

Committee Note to M.R. Crim. P. 3(a) and (b).

Advisory Note—July 2010

The amendment modifies Rule 5, subdivisions (a) and (d).

[Amendments to related Rules subdivisions are in development.] The present

amendment to Rule 5 makes three principal changes.

First, it eliminates the unnecessary distinction between the Superior

Court and the District Court by making the rule applicable to initial proceedings

occurring in either trial court for persons arrested or summonsed for

misdemeanor crimes. See also Advisory Note—July 2010 to M.R. Crim. P. 1.

Second, it eliminates a point of confusion by clarifying that Rule 5

addresses initial proceedings for persons arrested or summonsed for Class D

or Class E crimes only and not charged with a related Class C or higher crime.

If the person is also arrested or summonsed for a related Class C or higher

crime, the initial proceedings are as specified in Rule 5C rather than Rule 5.

Third, the amendment substitutes “assigned counsel” for “courtappointed counsel” and adds references to Rule 44 and “a lawyer for the day”

in subdivision (d). The substitution and added reference to Rule 44 are in

response to the recent statutory enactment establishing the Maine Commission

on Indigent Legal Services. See Advisory Note—July 2010 to M.R. Crim. P. 44.

The added reference to “a lawyer for the day” is for the purpose of

completeness. The determination of indigency and the assignment and

compensation of counsel is governed by the provisions of Rules 44, 44A, 44B,

and 44C.

Advisory Note—July 2012

The amendment modifies Rule 5(b) and (c) in the following respects.

First, the word “person,” or a variant thereof, is replaced with the word

“defendant,” or its variant, throughout subdivision (b) because the latter term

is overwhelmingly employed in the Maine Rules of Criminal Procedure when

referencing an accused.

Second, the introductory language to subdivision (b) is restated using a

simpler approach.

Third, the former option in subdivision (b), that a defendant may waive

being informed by the court of the defendant’s constitutional rights at the initial

appearance, is deleted. Waiver of such rights may be exercised only by the

defendant’s counsel. A lawyer for the day, appointed for the limited purpose

of representing the defendant at the initial appearance, may waive for the

defendant a statement of rights otherwise required at that initial appearance if

the lawyer affirmatively informs the court that the lawyer has specifically

advised the defendant of the rights and that the defendant understood them.

State v. Galarneau, 2011 ME 60, ¶¶ 8-10, 20 A.3d 99.

Fourth, formalistic changes are made to paragraph (2) of subdivision (b)

to enhance clarity and readability.

Fifth, the phrase “right to remain silent” is added in paragraph (3) of

subdivision (b).

Sixth, former subdivision (c) is merged with subdivision (b).

two subdivisions is unnecessary and creates potential confusion.

The use of

Seventh, the provision covering admitting a defendant to bail, formerly in

paragraph (4) of subdivision (b), is deleted as unnecessary because the

procedure for setting preconviction bail, including the directive for court

action, is addressed by statute in the Maine Bail Code.

Eighth, the word “penalties” in paragraph (4) of subdivision (b) [formerly

paragraph (1) of subdivision (c)] is replaced by the word “sentence” both to

conform paragraph (4)’s terminology with that of Rule 11(c)(1), and to

eliminate a confusing term that more commonly is used in the context of civil

violations rather than crimes.

Ninth, the phrase “in courts not operating a unified criminal docket” is

added to paragraph (5) of subdivision (b) [formerly paragraph (2) of

subdivision (c)].

The defendant must be informed of the necessity of a

demand for jury trial only in courts not operating a unified criminal docket. In

unified criminal docket courts, a defendant charged with any crime has the

opportunity for a jury trial, unless that right is waived.

Tenth, the reference to payment of fines in former paragraph (3) of

subdivision (c) is not incorporated into subdivision (b) because the issue of

payment of fines does not arise until after a plea, and then only if a fine is

imposed.

Eleventh, the final unnumbered paragraph in former subdivision (c) is

deleted since its substance is now addressed in new subdivision (c).

Twelfth, a new final paragraph is added to subdivision (b) recognizing

current practice that allows the general statements of rights to be presented by

video at a defendant’s first appearance, while clarifying the requirement of an

individualized colloquy before the acceptance of any pleas that will result in

conviction. The individualized colloquy is not required when a defendant is

represented by retained or appointed counsel or a lawyer for the day and the

court is satisfied that the attorney advised the person of the rights.

Finally, the amendment adds a new subdivision (c) to Rule 5 that, along

with the amendments to Rule 5(b), clarifies the practice for statements of rights

and taking of pleas at first appearance on misdemeanor charges.

See also Advisory Note – July 2012 to M.R. Crim. P. 5C(b) and (d).

[Rule 5B was in effect until the adoption of the Maine Rules of Unified

Criminal Procedure. See M.R.U. Crim. P. 1(e) for the effective date.]

RULE 5B. TRANSFER FROM DISTRICT COURT TO SUPERIOR COURT IF A

CLASS C OR HIGHER CRIME IS ADDED BY ATTORNEY FOR THE STATE

[Abrogated. See M.R.U. Crim. P. 1(e) for the effective date.]

Advisory Committee Note—1994

[M.R. Crim. P. 5B.]

to Rule 5.

See Advisory Committee Note to 1994 amendment

Advisory Committee Note—1998

[M.R. Crim. P. 5B(1).] This amendment is necessitated by the changes

being made to current Rules 5 and 5A. See Advisory Committee Notes to

M.R. Crim. P. 4A, 5 and 5A.

Advisory Committee Note—2004

[M.R. Crim. P. 5B.] Rule 5B authorizing experimental use of audiovisual

devices for arraignments was adopted to govern a specific project that has not

been operational for some time. Appearance by audiovisual device at first

appearances in District Court is now separately authorized in Rule 5(a). Thus,

Rule 5B is no longer necessary.

Advisory Committee Note –March 2005

[M.R. Crim. P. 5B.] This amendment replaces a Rule abrogated August

1, 2004. It addresses the circumstance in which a criminal proceeding is

initiated in District Court because the charges initially are Class D or Class E

crimes, but the attorney for the state determines that a Class C or higher related

crime should also be initiated. In that event, this new Rule allows for the

complaint to be amended to include the felony. Upon appearance by the

accused, the District Court, as presently occurs with felony charges, would

advise the accused of his or her rights and the substance of the original and

added charges, provide a copy of the pending charges to the accused, and

address any bail issues. The accused would not be called upon to plead unless

the accused elected to plead guilty pursuant to Rule 11(f). Following the

appearance by the accused, the matter would be transferred to the appropriate

Superior Court for all further proceedings.

The transfer should occur

promptly after the initial appearance.

Advisory Committee Note – June 2005

[M.R. Crim. P. 5B.] This amendment clarifies that if a Class C or higher

crime is added by the attorney for the state in District Court, the proceeding to

be conducted by the judge prior to transfer to the Superior Court may

necessitate a Rule 4A determination of probable cause and, in addition to the

current requirements specified in the Rule, must include both an initial

statement and a further statement mirroring that provided to an accused by a

Superior Court justice pursuant to Rule 5C(b) and (c).

Advisory Note—July 2010

[M.R. Crim. P. 5B.] The amendment to M.R. Crim. P. 5B eliminates the

reference to any specific court in the second sentence, as the appearance and

statements addressed in Rule 5C(b) and (c) may be before either a District

Court judge or a Superior Court justice.

[Rule 5C was in effect until the effective date for the Maine Rules of Unified

Criminal Procedure. See M.R.U. Crim. P. 1(e) for the effective date.]

RULE 5C. INITIAL PROCEEDINGS FOR DEFENDANTS ARRESTED OR

SUMMONSED FOR A CLASS C OR HIGHER CRIME

[Abrogated. See M.R.U. Crim. P. 1(e) for the effective date.]

Advisory Committee Notes—2000

[M.R. Crim. P. 5C.] New Rule 5C governs initial proceedings in the

Superior Court following the filing of an indictment or information (with waiver

of indictment). It is substantively similar to Rule 5, as newly amended, except

in three particulars. First, in recognition of the significant logistical burden

created by this new rule on the parties, courts and sheriffs, including the need

on occasion to physically take the defendant to a different county in order to

meet the rule deadline, the time period is set at 72 hours rather than 48. Setting

the time period at 72 hours rather than 48, unlike Rule 4A, does not implicate

County of Riverside v. McLaughlin, 500 U.S. 44 (1991). Second, in view of the 72

hour period, notice by the custodian to the attorney for the state if appearance

has not taken place is set at 48 hours rather than 36. Third, the new rule makes

clear that a probable cause determination under Rule 4A is inapplicable. See

also Advisory Committee Note to M.R. Crim. P. 5.

Advisory Committee Notes—2001

[M.R. Crim. P. 5C(c).]

See Advisory Committee Note to M.R. Crim. P. 5(c).

[M.R. Crim. P. 5C(d).] This amendment redesignates current paragraph

5C(c) to be paragraph 5C(d). See Advisory Note to M.R. Crim. P. 5C(c).

Advisory Committee Note – March 2005

[M.R. Crim. P. 5C.] The amendment makes changes reflecting that the

Superior Court is now the court for initiating a criminal case that involves

murder or at least one Class A, Class B, or Class C crime, accompanied or

unaccompanied by related Class D or Class E crimes. See also Advisory

Committee Note to M.R. Crim. P. 3(a) and (b). The change also adopts a 48hour requirement, similar to Rule 5 for first appearances for persons in custody.

In subsection (c) the amendment includes a new process to contemplate

waiver of indictment and entry of any plea upon a first appearance. Any of the

four alternative pleas, not guilty, guilty, nolo contendere, or not criminally

responsible by reason of insanity, could be entered in this process. However,

a negotiated acceptance of a plea of not criminally responsible by reason of

insanity may not occur without an evidentiary hearing. See M.R. Crim. P.

11A(h).

Subsection (d) is similar to M.R. Crim. P. 5(d) for the District Court. It

authorizes the Superior Court to conduct an arraignment and call upon a

defendant to plead in cases where the case may have been initiated by filing a

felony charge in the Superior Court, but at the first appearance, only

misdemeanor charges and no related felony charges remain for prosecution.

In such cases, consistent with Rule 5(d) and 22(a), a defendant must file a

demand for a jury trial within 21 days of arraignment or be deemed to have

waived the right to trial by a jury. The rule does not include a provision

similar to Rule 5(d)(3) as the fine payment requirement would have been

separately stated pursuant to Rule 5(b)(5).

Subsection (d) regarding arraignment of counsel and plea is redesignated

subsection (e).

Subsection (f) is added to clarify that once a Superior Court proceeding is

initiated after a person is arrested or summonsed for a felony charge, the

Superior Court retains jurisdiction of all related misdemeanor charges, even if

the felony charge is later dismissed or amended so that no felony charge

remains pending.

Advisory Note—July 2010

[M.R. Crim. P. 5C.] The amendment modifies Rule 5C in six respects.

First, it eliminates the unnecessary distinction between the Superior

Court and the District Court by making the rule applicable to initial proceedings

occurring in either trial court for persons arrested or summonsed for at least

one Class C or higher crime, accompanied or unaccompanied by related Class D

or Class E crimes. See also Advisory Note—July 2010 to M.R. Crim. P. 1.

Second, it adds clarity to subdivision (a), paragraphs (1) and (2) and

subdivision (b) by adding in the first sentence of each “for a Class C or higher

crime (accompanied or unaccompanied by related Class D or Class E crimes).”

Third, the reference in subdivision (b) to the required immediate

payment of any fine is eliminated, as the statute requiring that statement at

initial appearance has been repealed.

Fourth, the substance of Rule 5, subdivision (c) currently repeated in

subdivision 5C(d) is deleted in favor of simply directing that the court “provide

to the person the further statement required by Rule 5(c).”

Fifth, the direction to admit the person to bail is moved from the list of

rights the person is to be informed about to the end of subdivision (b) as a

direction for action the court is to take in the proceeding.

Sixth, the same changes are made to subdivision (e) that are made to Rule

5, subdivision (d). See Advisory Note—July 2010 to M.R. Crim. P. 5.

Seventh, in subdivision (f) a reference is added to “a court with a unified

criminal docket.”

Advisory Note—July 2012

[M.R. Crim. P. 5C.] The amendment to subdivision (b) conforms the

introductory language of subdivision (b) to that in Rule 5(b) and, as in Rule

5(b), the option that the charged defendant may waive being informed by the

court of the constitutional rights listed therein is eliminated. Waiver of such

rights may be exercised only by the defendant’s counsel. See also Advisory

Note – July 2012 to M.R. Crim. P. 5(b) and (c).

The amendment also replaces the word “person,” or a variant thereof,

with the word “defendant,” or its variant, throughout subdivision (b). See also

Advisory Note – July 2012 to M.R. Crim. P. 5(b) and (c).

Finally, the provision covering admitting a defendant to bail is deleted as

unnecessary because the procedure for setting preconviction bail, including the

directive for court action, is addressed by statute in the Maine Bail Code.

The amendment modifies subdivision (d) in three respects.

First, it changes the current reference to “Rule 5(c)” to read “Rule 5(b),

paragraphs (4) and (5)” both because the rights addressed in subdivision (b)

and (c) of Rule 5 have now been collapsed into a single subdivision (b) [see

Advisory Note – July 2012 to M.R. Crim. P. 5(b) and (c)] and because the initial

statement by the court in Rule 5C(b) already provides for the first three rights

contained in Rule 5(b).

Second, it adds a directive that the court also comply with requirements

of new subdivision (c) of Rule 5.

Third, it replaces the word “person,” or a variant thereof, with the word

“defendant,” or its variant, throughout subdivision (d). See also Advisory

Note – July 2012 to M.R. Crim. P. 5(b) and (c).

See also Advisory Note – July 2012 to M.R. Crim. P. 5(b) and (c).

III.

INDICTMENT AND INFORMATION

RULE 6. THE GRAND JURY

(a) Number of Grand Jurors. The grand jury shall consist of not fewer

than 13 nor more than 23 jurors and a sufficient number of legally qualified

persons shall be summoned to meet this requirement.

(b) Objections to Grand Jury and to Grand Jurors.

(1) Challenges. Either the attorney for the State or a defendant who has

been held to answer may challenge an individual grand juror on the ground that

the juror is not legally qualified or that a state of mind exists on the juror’s part

that may prevent the juror from acting impartially. All challenges must be in

writing and allege the ground upon which the challenge is made, and such

challenges must be made before the time the grand jurors commence receiving

evidence at each session of the grand jury. If a challenge to an individual

grand juror is sustained, the juror shall be discharged, and the court may

replace the juror from persons drawn or selected for grand jury service.

(2) Motion to Dismiss. A motion to dismiss the indictment may be based

on objections to the array or, if not previously determined upon challenge, on

the lack of legal qualifications of an individual juror or on the ground that a state

of mind existed on the juror’s part that prevented the juror from acting

impartially, but an indictment shall not be dismissed on the ground that one or

more members of the grand jury were not legally qualified if it appears from

the record kept pursuant to subdivision (c) of this Rule that 12 or more jurors,

after deducting the number not legally qualified, concurred in finding the

indictment.

of the jurors to be foreperson and another to be deputy foreperson. The

foreperson shall have power to administer oaths and affirmations and shall sign

all indictments.

The foreperson or another juror designated by the

foreperson shall keep a record of the number of jurors concurring in the finding

of every indictment and shall file the record with the clerk of the Unified

Criminal Docket, but the record shall not be public except on order of the court.

During the absence of the foreperson the deputy foreperson shall act as

foreperson.

(d) Presence During Proceedings. While the grand jury is taking

evidence, only the attorneys for the State, the witness under examination, and,

when ordered by the court, a security officer, an interpreter or translator, a

court reporter, or an operator of electronic recording equipment may be

present. While the grand jury is deliberating or voting, only the jurors may be

present.

(e) General Rule of Secrecy. A juror, attorney, security officer,

interpreter, translator, court reporter, operator of electronic recording

equipment, or any person to whom disclosure is made under this Rule may not

disclose matters occurring before the grand jury, except as otherwise provided

in these Rules or when so directed by the court. No obligation of secrecy may

be imposed upon any person except in accordance with this Rule. In the event

an indictment is not returned, any stenographic notes and electronic backup, if

any, of an official court reporter or tape or digital record of an electronic sound

recording and any written record of information necessary for an accurate

transcription prepared by the operator and any transcriptions of such notes,

tape, or digital record shall be impounded by the court. The court may direct

that an indictment be kept secret until the defendant is in custody or has given

bail, and in that event the court shall seal the indictment and no person may

disclose the finding of the indictment except when necessary for the issuance

or execution of a warrant or summons. Disclosure otherwise prohibited by

this Rule of matters occurring before the grand jury, other than its deliberations

and any vote of any juror, may be made by an attorney for the State to:

(1) an attorney for the State in the performance of the duty of an attorney

for the State to enforce the State’s criminal laws;

(2) any staff members assigned to an attorney for the State who that

attorney considers necessary to assist in the performance of that attorney’s

duty to enforce the State’s criminal laws;

(3) any government personnel not otherwise addressed in this

subdivision or subdivision (h) of this Rule that an attorney for the State

considers necessary to assist in the performance of that attorney’s duty to

enforce the State’s criminal laws; and

(4) another State grand jury by an attorney for the State in the

performance of the duty of an attorney for the State to enforce the State’s

criminal laws.

Any person to whom matters are disclosed under paragraphs (1), (2), or

(3) of subdivision (e) of this Rule may not utilize that grand jury material for

any purpose other than assisting the attorney for the State in the performance

of such attorney’s duty to enforce the State’s criminal laws. An attorney for

the State who has made a disclosure pursuant to paragraph 3 of subdivision (e)

of this Rule with respect to matters occurring before the grand jury shall

promptly provide the court with the name of the persons and agencies to whom

such disclosure has been made and shall certify that the attorney for the State

has advised such persons of their obligation of secrecy under this Rule.

(f) Recording of Proceedings. Upon motion of the defendant or the

attorney for the State, the court, in its discretion for good cause shown, may

order that a court reporter or operator of electronic recording equipment be

present for the purpose of taking evidence. No person other than a court

reporter or operator of electronic recording equipment shall be permitted to

record any portion of the proceeding.

(g) Procedure for Preparation and Disclosure of Transcript. No

transcript may be prepared of the record of the evidence presented to the grand

jury without an order of the court. Upon motion of the defendant or the

attorney for the State and upon a showing of particularized need, the court may

order a transcript of the record of the evidence to be furnished to the defendant

or the attorney for the State upon such terms and conditions as are just.

(1) Transcripts of the record of the evidence may also be furnished upon

such terms and conditions as are just

(A) When ordered by the court preliminarily to or in connection with a

judicial proceeding and upon a showing of particularized need; or

(B) When ordered by the court at the request of an attorney for the State

to an appropriate official of another jurisdiction for the purpose of

enforcing the criminal laws of another jurisdiction upon a showing that

such disclosure may constitute evidence of a violation of the criminal

laws of that other jurisdiction.

(2) A petition for disclosure pursuant to paragraph (1) of subdivision (g)

shall be filed in the Unified Criminal Docket where the grand jury was

convened. Unless the hearing is ex parte, which it may be when the petitioner

is the State, the petitioner shall serve written notice of the petition upon

(A) The attorneys for the State who were present before the grand jury,

or their designee;

(B) The parties to the judicial proceeding if disclosure is sought in

connection with such a proceeding; and

those persons a reasonable opportunity to appear and be heard before

disclosure of the transcript of the record of the evidence. The court

shall order such a hearing to be closed to the extent necessary to prevent

disclosure of matters occurring before the grand jury.

(3) If the judicial proceeding giving rise to the petition is before a court

of another county, the court that convened the grand jury may transfer the

disclosure hearing to the Unified Criminal Docket of the county of the

petitioning court, unless the court convening the grand jury may reasonably

obtain sufficient knowledge of the proceeding to determine whether disclosure

is proper. The court convening the grand jury may order transmitted to the

court to which the matter is transferred the material sought to be disclosed, if

feasible, and a written evaluation of the need for continued grand jury secrecy.

(h) Disclosure for Certain Law Enforcement Purposes. Disclosure

otherwise prohibited by this Rule of matters occurring before the grand jury,

other than its deliberations and any vote of any grand juror, may be made by

an attorney for the State to any law enforcement personnel (including

personnel of the United States, another state or territory, or a subdivision of

such) who that attorney considers necessary to assist in the performance of

that attorney’s duty to enforce the State’s criminal laws. Any person to whom

matters are disclosed under this subdivision may not utilize that grand jury

material for any purpose other than assisting an attorney for the State in the

performance of such attorney’s duty to enforce the State’s criminal laws. An

attorney for the State who has made a disclosure pursuant to this subdivision

with respect to matters occurring before the grand jury shall promptly provide

the court with the names of the persons and agencies to whom such disclosure

has been made, and shall certify that the attorney for the State has advised such

persons of their obligation of secrecy under this Rule.

(i) Finding and Return of Indictment. An indictment may be found

only upon the concurrence of 12 or more jurors. The indictment shall be

returned to the court by the grand jury or its foreperson or its deputy

foreperson in open court. If the defendant is in custody or has given bail and 12

jurors do not concur in finding an indictment, the foreperson shall so report to

the court in writing forthwith.

(j) Excuse. At any time for cause shown, the court may excuse a juror

either temporarily or permanently, and in the latter event the court may

impanel another person in place of the juror excused. No juror may

participate in voting with respect to an indictment unless the juror shall have

been in attendance at the presentation of all the evidence produced in favor of

and adverse to the return of the indictment.

Advisory Note – July 2015

Rule 6(e) is amended to consistently capitalize “State.”

additionally amended in the following respects:

Rule 6(e) is

(1) The words “by an attorney for the State” are added after the word

“made” and before the word “to” in the sentence containing the listed

exceptions in subdivision (e) to make clear that the exceptions pertain to the

disclosure of secret grand jury matters without prior judicial approval by an

attorney for the State.

(2) In paragraph (2) the “reasonably necessary” standard, permitting

disclosure by an attorney for the State to some or all of that attorney’s staff in

order to assist that attorney in enforcing the State’s criminal laws, is deleted

and replaced by a “considers necessary” standard.

The former phrase

“reasonably necessary” was taken from former Rule 502(a)(5) of the Maine

Rules of Evidence defining a client’s “confidential” communication in the

context of the lawyer-client privilege.

See M.R. Crim. P. 6 Advisory

Committee’s Note to 1997 amend., Me. Rptr. 692-698 A.2d LXXIX. At the

same time the “reasonably necessary” standard was adopted relative to

subdivision (e), paragraph (2), a differing standard of “deemed necessary” was

adopted for subdivision (h) of Rule 6 addressing dissemination by an attorney

for the State to law enforcement personnel for the same purpose as specified in

paragraph (2). This “deemed necessary” standard was taken from then Rule

6(e)(3)(A)(ii) of the Federal Rules of Criminal Procedure addressing

dissemination by an attorney for the government to all “government personnel”

assisting the government attorney in performing that attorney’s duty to enforce

federal criminal law. M.R. Crim. P. 6 Advisory Committee’s Note to 1997

amend., Me. Rptr. 692-698 A.2d LXXXI.

As now amended, the two

above-described inconsistent standards are replaced by the “considers

necessary” standard, the current formulation employed in Federal Criminal

Rule 6(e)(3)(A)(ii).

The same “considers necessary” standard is also

employed in the newly added paragraph (3) exception addressing government

personnel not otherwise dealt with in paragraphs (1) and (2) of subdivision (e)

and subdivision (h).

(3) In paragraph (2) nonsubstantive changes are made in order to both

eliminate the awkward overuse of the term “attorney for the State” and to

replace passive voice language with more readable active voice language.

(4) A new exception is added in paragraph (3) to subdivision (e) that

includes “any government personnel not otherwise addressed in . . .

[subdivision e] or subdivision (h).”

In 1997, at the time the specific

exceptions relating to government personnel were adopted in subdivisions (e)

and (h), although a model creating an exception sufficiently broad to include

“any government personnel” was already embodied in then Federal Rule of

Criminal Procedure 6(e)(3)(A)(ii) and known to the Advisory Committee, see

M.R. Crim. P. 6 Advisory Committee’s Note to 1997 amend., Me. Rptr. 692-698

A.2d LXXVIII], it chose instead to limit dissemination in the absence of a court

order to specific categories of government personnel—namely, other attorneys

for the State pursuant to paragraph (1) of subdivision (e), see id. at LXXVILXXVIII, staff members of an attorney for the State pursuant to paragraph (2)

of subdivision (e), see id. at LXXVIII-LXXIX, and law enforcement personnel

(including personnel of the United States, another state or territory, or a

subdivision of such) pursuant to subsection (h), see id. at LXXXI-LXXXII.

However, in the intervening eighteen years since subdivisions (e) and (h) were

adopted, criminal investigations in Maine have taken on a degree of complexity

not generally experienced or even perhaps contemplated in 1997. In turn,

the necessity to regularly share secret grand jury material with government

personnel not included within the listed subdivisions (e) and (h) categories has

also grown. Two examples illustrate this point.

Example 1:

Welfare fraud investigations conducted on behalf of the Maine

Department of Health and Human Services often involve individuals who

conceal or fail to accurately disclose the amount of income or assets available

to them. Grand jury subpoenas are commonly used by the attorney for the

State to obtain relevant bank and employment records of these individuals. If

an individual is also receiving public assistance from another agency, such as

the Maine State Housing Authority, the Social Security Administration, or a

municipality (administering general assistance benefits), and the individual has

not accurately reported the individual’s financial information to that other

agency, because the criteria for qualifying for public assistance varies by

agency, personnel of that agency must determine if there is an overpayment in

the agency’s program. Commonly that determination requires a review of the

financial records obtained by grand jury subpoena.

However, agency

personnel are not within the listed subdivisions (e) and (h) categories and thus

dissemination to them by the attorney for the State requires prior judicial

approval.

Example 2:

Crimes that involve computer or digital evidence, including harassing or

threating messages and internet child pornography, are investigated by the

Maine State Police Computer Crimes Unit. In addition to law enforcement

officers, see 17-A M.R.S. § 2(17), staff members include civilian personnel—

namely, investigative assistants, forensic analysts, and experts. Grand jury

subpoenas are commonly used by the attorney for the State at the initial stage

of the criminal investigation typically stemming from a so-called “Cyber Tip”

from an electronic service provider such as Google, Yahoo, or Facebook or from

a citizen complaint. The Cyber Tip or citizen complaint is first reviewed by

an investigative assistant. Depending upon the review outcome, including in

the case of a computer image confirmation that the image is child pornography,

the investigative assistant then asks the attorney for the State to obtain from

the electronic service provider the internet account or from an email provider,

the holder of the account. Investigative assistants, forensic analysts and

experts employed by the Maine State Police Crime Unit, unless they happen to

be law enforcement officers as well, M.R. Crim. P. 6 Advisory Committee’s Note

to 1997 amend., Me. Rptr. 692-698 A.2d LXXXI, are not within the listed

subdivisions (e) and (h) categories and thus dissemination to them by the

attorney for the State requires judicial approval.

The new exception in paragraph (3) to subdivision (e) embraces the “any

government personnel” approach now employed in the parallel Rule

6(e)(3)(A)(ii) of the Federal Rules of Criminal Procedure while, at the same

time, retaining the added clarity afforded by the listing of specific categories of

commonly occurring government personnel in subdivisions (e) and (h).

(5)

Current paragraph (3) is redesignated paragraph (4).

(6) In the final paragraph of subdivision (e) two changes are made.

First, a reference to new paragraph (3) is added in the first sentence in order to

prohibit the use of grand jury material disclosed by an attorney for the State

pursuant to paragraphs (3) except for the sole purpose of assisting the attorney

for the State in the performance of that attorney’s duty to enforce the State’s

criminal laws. Second, a new final sentence is added requiring an attorney

for the State to both provide the court the name of the persons and agencies to

whom disclosure of grand jury material has been made pursuant to paragraph

(3), and to certify to the court that such persons and agencies have been advised

of their obligation of secrecy under Rule 6.

Rule 6(h) is amended in the first sentence in four respects. First, the

words “by an attorney for the State” are added after the word “made” and

before the word “to.” See also M.R.U. Crim. P. 6(e) Advisory Note to July 2015

amend. Second, the “deemed necessary” standard is deleted and replaced by

the “considers necessary” standard now employed in Rule 6(e)(2) and (3).

See M.R.U. Crim. P. 6(e)(2), (3) Advisory Note to July 2015 amend. Third,

nonsubstantive changes are made in order to both eliminate the awkward

overuse of the term “attorney for the State” and to replace passive voice

language with more readable active voice language. See also M.R.U. Crim. P.

6(e)(2) Advisory Note to July 2015 amend. Fourth, “State” is appropriately

capitalized when the State of Maine is indicated.

Committee Advisory Note [December 2014]

The Rule parallels the content of Rule 6 of the Maine Rules of Criminal

Procedure but differs in the following respects.

First, in subdivisions (b)(1), (d), (e), (f), (g), and (h) the letter “s” in the

word “state” is capitalized because the word is used in the term “attorney for

the State.” See Committee Advisory Note [December 2014] to M.R.U. Crim. P.

3(d) and (f).

Second, in subdivisions (b)(1) and (g)(2)(C) the word “before” replaces

the phrase “prior to” to reflect modern usage.

Third, in subdivision (b)(2) the word “that” replaces the word “which” to

reflect modern usage.

Fourth, in subdivision (c) the reference to “the clerk of court” is replaced

by “the clerk of the Unified Criminal Docket.”

Fifth, in subdivision (g)(3) the words “Superior Court” are deleted and

the words “Unified Criminal Docket” replace the reference to the “Superior

Court.”

Sixth, in subdivisions (g)(3) [other than as stated immediately above] and

(h) the word “court” replaces the words “the Superior Court.” See Committee

Advisory Note [December 2014] to M.R.U. Crim. P. 3(b) and (d).

Seventh, in subdivision (h) the final sentence is rearranged to enhance

clarity.

__________________________________________________________________

[Advisory Notes to former Maine Rules of Criminal Procedure]

Advisory Committee Note— 19 7 1

[M.R. Crim. P. 6(b)(1) and (2).] The amendments to Rule 6(b) are

necessitated by the enactment of Maine Laws, 1971, c.391 which adopts a

comprehensive scheme for challenges to the array of grand jurors and

traverse jurors. While the new statute authorizes the court to adopt rules “not

inconsistent” with its provisions, it also provides that: “The procedures

prescribed by this section are the exclusive means by which a person accused

of a crime, the State or a party in a civil case may challenge a jury on the ground

that the jury was not selected in conformity with the provisions of this

chapter.”

The new statute contains no method whereby a challenge to the array

of grand jurors may be made before the grand jury is sworn; to this extent, it

is inconsistent with the prior provisions of Rule 6(b)(1). The amendment to

6(b)(1) eliminates all reference to challenges to the array of grand jurors prior

to the swearing of the grand jury, but retains the provisions for challenge to

an individual grand juror prior to swearing of the grand jury.

The procedure for motion to dismiss an indictment if the grand jury was

not properly selected is retained in Rule 6(b)(2). The limiting language of Rule

6(b)(2), “if not previously determined upon challenge,” is moved to make it

applicable only to challenges to individual grand jurors.

There is one inconsistency between the new statute and Rule 6(b)(2),

the statute denominates the procedural device for attacking the indictment as

a motion to quash, whereas the Rule refers to a motion to dismiss. The

Committee recommends retention of the motion to dismiss because Rule l2(a)

has abolished motions to quash and it seems unwise to reintroduce this

procedural device into the criminal procedure of the State of Maine. The

inconsistency can be cured in the omnibus bill at the next meeting of the

Legislature.

Advisory Committee Note—1978

1. Maine Rule of Criminal Procedure 6(d):

Rule 6(d) is amended for purposes of clarity; no substantive change is

intended.

2. Maine Rule of Criminal Procedure 6(e):

Rule 6(e) is amended to effect a transfer of the provision for discovery

of grand jury transcripts from former Rule 16(a) to Rule 6(e). The transfer is

appropriate because discovery of grand jury transcripts, unlike other Rule 16

discovery, is not something which is discovered from the State, but is something which is made available to counsel for the parties by court order.

It further provides that no transcript of the record of the evidence presented to the grand jury shall be prepared without a court order.

Advisory Committee Note—1979

[M.R. Crim. P. 6(d).] Because an official court reporter may not be

available on those occasions when the court orders that grand jury evidence

be taken down, Rule 6(d) is amended to provide that, though unofficial, a

qualified court reporter will suffice.

Advisory Committee Note—1985

[M.R. Crim. P. 6(h).] Proposed section (h) provides for limited disclosure

of information or exhibits for certain law enforcement purposes. This section

does not supersede the requirement of Rule 6(e.) for disclosure of a grand jury

transcript.

This section is not intended to derogate from the tight of the defendant

to request discovery pursuant to Rule 16(b) of whatever reports or

statements are made by the person to whom disclosure is made. To implement

this right a contemporaneous amendment is made to Rule 16(a) to require the

attorney for the state to notify the defendant of the contents of the disclosure

order.

Advisory Committee Note—1986

[M.R. Crim. P. 6(d).] The provision for a motion for recording grand jury

proceedings is presently buried in Rule 6(d), which governs presence during

proceedings. Given the importance of the motion for recording, provision for

the motion should be made more accessible in the rules. This has been done

by giving the motion its own subdivision as new Rule 6(f).

The amendment also corrects any misimpression that might exist that

an interpreter can be present without a court order.

[M.R. Crim. P. 6(e).] The provisions for preparation and disclosure of a

grand jury transcript are presently buried in Rule 6(e)’s restrictions on

disclosure of proceedings. Given their importance, they should be made more

accessible in the rules. This has been done by giving the provisions their own

subdivision in new Rule 6(g).

The word “official” is deleted in the first sentence of the first paragraph

for consistency with the April 16, 1979 amendment to Rule 6(d).

[M.R. Crim. P. 6(i) and (j).] Present Rules 6(f) and (g) are relocated to

accommodate new Rules 6(f) and (g).

[M.R. Crim. P. 6(f).] The first sentence is brought forward from Rule 6(d),

for the reasons stated in the note to the amendment thereto.

The second sentence is added to make clear that no recording of grand

jury proceedings is permitted except pursuant to the first sentence.

Examples of good cause for recording include the likely fabrication of

testimony, the likely need to refresh a witness’s memory and the need to deter

or punish contempt. Although the final decision as to whether the evidence

proffered by the movant constitutes good cause must be within the discretion

of the court, the Committee believes that a little elaboration may be helpful.

A. Likely Fabrication of Testimony

A motion to record the grand jury testimony of a witness for the purpose

of impeachment must be supported by evidence showing a likelihood that the

witness will fabricate testimony. Thus showing may include a witness’s prior

inconsistent statements or his strong motive to proffer untruthful testimony

before the grand jury or traverse jury.

B. Likely Need to Refresh a Witness’s Memory

A motion to record grand jury testimony of a witness for the purpose of

refreshing that witness’ memory must be supported by evidence showing a

likelihood of one or more of the following factors: (a) that an unusually long

delay will exist between the witness’s testimony before the grand and traverse

juries, such as when the target of the grand jury is a fugitive or the crime is

unsolved; (b) the witness is testifying to unusually complex facts; (c) the

witness has a physical or mental ailment which affects recall; or (d) the

witness’s youth or advanced age affects recall.

In addition to the factors stated in these examples, the court may

consider supplementary factors such as the seriousness of the offense, the

significance of the witness’s testimony to the case against the defendant, and

the availability of court reporters and other logistical concerns.

[M.R. Crim. P. 6(g).] Rule 6(g) is brought forward from Rule 6(e), for the

reasons stated in the note to the amendment to Rule 6(e).

Advisory Committee Note—1997

[M.R. Crim. P. 6(e).] The provisions of M.R. Crim. P. 6(e) are deleted and

replaced with a revision of the text of Fed. R. Crim. P. 6(e)(2). The new

subdivision does not alter the longstanding principle of grand jury secrecy

recognized by the Maine courts. See State v. Levesque, 281 A.2d 570, 573 (Me.

1971) (quoting United States v. Rose, 215 F.2d 617, 628-29 (3d Cir. 1954)); see

also 1 Cluchey & Seitzinger, Maine Criminal Practice § 6.6 at III-17 (1992).

“Matters occurring before the grand jury” include, but are not limited to,

the identity of witnesses, witness testimony before the grand jury, exhibits

produced before the grand jury or pursuant to grand jury subpoena, and any

other materials or items which indicate the focus of the grand jury process.

See Russell J. Davis, Annotation, What are “Matters Occurring Before the Grand

Jury” within Prohibition of Rule 6(e) of the Federal Rules of Criminal Procedure,

50 ALR Fed. 675 (1979 & Supp. 1995). Neither the prior subdivision, nor its

replacement apply to material obtained or created independently of the grand

jury as long as the disclosure of such material does not reveal what transpired

before the grand jury. The grand jury secrecy rules also continue not to apply

to information which has become a matter of public record, such as

introduction of evidence at trial. Likewise, a witness before the grand jury

may not be placed under any obligation of secrecy. See also Butterworth v.

Smith, 494 U.S. 624 (1990) (Florida statute prohibiting grand jury witnesses

from disclosing their own testimony violates the First Amendment.)

[M.R. Crim. P. 6(e)(1).] New paragraph (1) of subdivision (e) provides

that the disclosure of matters occurring before the grand jury to attorneys for

the state in the performance of the duty of an attorney for the state to enforce

the state’s criminal laws is not prohibited by the general rule of grand jury

secrecy pursuant to this subdivision. However, the attorneys for the state are

subject to the secrecy provision of M.R. Crim. P. 6(e) with respect to additional

disclosures of grand jury matters.

The amendment is consistent with

corresponding federal and state rules.

Under the existing provisions of M.R. Crim. P. 6(h)(1), an attorney for the

state, present for witness examination before a grand jury, may not disclose

matters to the elected district attorney or to the attorney general, to other

supervising lawyers or to colleagues without the prior approval of the court.

See 1 Cluchey & Seitzinger, Maine Criminal Practice § 6.8 at III-24 (1992) (“Rule

6(h) makes clear that the attorney for the state who attends a grand jury

proceeding must obtain a court order before disclosing information received

during that proceeding to colleagues, assistants, and law enforcement officers

for their use in assisting in enforcing the laws of Maine.”). The requirement of

obtaining a court order prior to the disclosure of matters occurring before the

grand jury to other attorneys for the state hampers consistent grand jury

assistance by the attorneys for the state, serves as an obstacle to the effective

and proper operation of the grand jury and has proven so burdensome that the

requirement is too often ignored by the prosecuting office and in turn not

enforced by the court. The corresponding federal rule provides for disclosure

among attorneys for the state, and the amended subdivision adopts, with minor

revision, the language of the federal rule. See Fed. R. Crim. P. 6(e)(3)(A)(i).

New paragraph (1) of subdivision (e) is in accord with the holding of the

United States Supreme Court in United States v. Sells Eng’g, Inc., 463 U.S. 418

(1983) by confining disclosure of matters occurring before the grand jury to

“attorneys for the state in the performance of the duty of an attorney for the

state to enforce the state’s criminal laws.” Cf. United States v. John Doe, Inc., I,

481 U.S. 102 (1987) (Fed. R. Crim. P. 6 does not require Government attorney

involved in grand jury investigation of criminal matter to obtain court order

before making continued use of grand jury materials in civil proceeding). In

Sells Eng’g, the Court held that attorneys for the government assigned to civil

matters may not have full access to grand jury material for use in civil actions.

The Court found that such disclosure under Fed. R. Crim. P. 6(e)(3)(C)(i) and

demonstrates particularized need for the materials. 463 U.S. at 420. See

hereinafter comment respecting M.R. Crim. P. 6(g)(1)(A). The Court further

noted that:

We do not mean to suggest that [Fed. R. Crim. P. 6(e)(3)(A)(i)]

access to grand jury materials is limited to those prosecutors who

actually did appear before the grand jury. If that were so, the

Government would be arbitrarily foreclosed from increasing or

changing the staffing of a given criminal case after indictment, or

even from replacing an attorney who leaves Government service.

Moreover, there would be little point to such an interpretation

since anyone working on a given prosecution would clearly be

eligible under Rule 6(d) to enter the grand jury room, even if

particular individuals did not have occasion to do so. . . . [T]he

intention of the Rule is that every attorney (including a supervisor)

who is working on a prosecution may have access to grand jury

materials, at least while he is conducting criminal matters.

Id. at 429, n.11.

The amendment is also in accord with the statutes and rules of

neighboring jurisdictions in the Northeast. See Mass. R. Crim. P. 5(d) (“A

person performing an official function in relation to the grand jury may not

disclose matters occurring before the grand jury except in the performance of

his official duties or when specifically directed to do so by the court”); R.I.

Super. Ct. R. Crim. P. 6(e) (“Disclosure of matters occurring before the grand

jury, other than its deliberations or the vote of any juror where an indictment

has not been returned, may be made to attorneys for the State for use in the

performance of their duties”); Vt. R. Crim. P. 6(f) (“Disclosure of matters

occurring before the grand jury other than its deliberations and the vote of any

juror may be made to the prosecuting attorneys for use in the performance of

their duties”); N.Y. Crim. Proc. Law Art. 190.25(4)(a) (“For the purpose of

assisting the grand jury in conducting its investigation, evidence obtained by a

grand jury may be independently examined by the district attorney, members

of his staff, police officers specifically assigned to the investigation, and such

other persons as the court may specifically authorize. Such evidence may not

be disclosed to other persons without a court order”).

[M.R. Crim. P. 6(e)(2).] New paragraph (2) of subdivision (e) provides

that the disclosure of matters occurring before the grand jury to the staff of an

attorney for the state as is reasonably necessary to assist an attorney for the

state in the performance of the duty of an attorney for the state to enforce the

state’s criminal laws is not prohibited by the general rule of grand jury secrecy

pursuant to this subdivision. Under the existing provisions of M.R. Crim. P.

6(h)(2), secretarial and administrative assistance with any materials relating

to the grand jury may not be proper absent prior court order upon a separate

motion in each grand jury matter.

This requirement has proven so

burdensome that in practice court approval is not now commonly sought by an

attorney for the state nor is this requirement commonly enforced by the court.

The new paragraph recognizes that attorneys for the state rely upon their staff

for administrative and clerical assistance with respect to matters occurring

before the grand jury including, but not limited to, the preparation of case files,

the organization of grand jury exhibits, and assistance with grand jury

witnesses.

The term “staff members” includes those persons who have an

employment relationship with, or are assigned as staff to an attorney for the

state. Persons employed by the counties or federal government to work in the

offices of the various district attorneys are included in this definition. The

term “staff members” also includes independent contractors or expert

witnesses employed by an attorney for the state to assist an attorney for the

state in the performance of the duty of an attorney for the state to enforce the

state’s criminal laws. See United States v. Lartey, 716 F.2d 955, 963-64 (2d Cir.

1983) (temporary government personnel and independent contractors

employed by a government agency are “government personnel” within the

meaning of Fed. R. Crim. P. 6(e)(3)(A)(ii)); United States v. Anderson, 778 F.2d

602, 605-06 (10th Cir. 1985) (disclosure of materials to expert witness

employed by the government was permissible).

The new paragraph is similar to Fed. R. Crim. P. 6(e)(3)(A)(ii) which

provides that matters occurring before the grand jury may be disclosed without

court order to “such government personnel as are deemed necessary by an

attorney for the government to assist an attorney for the government in the

performance of such attorney’s duty to enforce federal criminal law.” Under

Fed. R. Crim. P. 6(e)(3)(A)(ii), “government personnel” means members of the

prosecution support staff, law enforcement personnel, and personnel of any

federal agency which is assisting the government attorney. See Richard

Neumeg, Annotation, Who are “Government Personnel” within meaning of Rule

6(e)(3)(A)(ii) of the Federal Rules of Criminal Procedure to whom matters

occurring before the grand jury may be disclosed, 54 ALR Fed. 805 (1981 & Supp.

1995). Unlike the federal rule, however, sworn law enforcement officers

merely assisting in a specific investigation do not constitute “staff” within the

meaning of this subdivision.

In addition to the requirement that the person be a member of the “staff”

of an attorney for the state, any disclosure of matters occurring before the

grand jury must be “reasonably necessary” to assist the attorney for the state

in the performance of the duty of an attorney for the state to enforce the state’s

criminal laws. The language “reasonably necessary” is taken from M.R. Evid.

502(a)(4) and M.R. Evid. 502(a)(5) which provides for the confidentiality of

client communications make to a “lawyer” and “representatives of the lawyer.”

Similar to the extension of the Lawyer-Client Privilege under M.R. Evid. 502, the

amendment permits the disclosure of matters occurring before the grand jury

to staff members of an attorney for the state as are reasonably necessary to

assist an attorney for the state. See M.R. Evid. 502(a)(5) (“A communication

is ‘confidential’ if not intended to be disclosed to third persons other than those

to whom disclosure is made in furtherance of the rendition of legal services to

the client or those reasonably necessary for the transmission of the

communication.”) (emphasis added). The staff of an attorney for the state to

whom matters occurring before the grand jury are disclosed is subject to the

grand jury secrecy requirements pursuant to this subdivision.

[M.R. Crim. P. 6(e)(3).] New paragraph (3) of subdivision (e) provides

that the disclosure of matters occurring before the grand jury by an attorney

for the state to another grand jury is not prohibited by the general rule of grand

jury secrecy pursuant to this subdivision. The language of the new paragraph

is taken from Fed. R. Crim. P. 6(e)(3)(C)(iii), adopted in 1983 to codify the

existing case law which permitted, in some circumstances, the disclosure of

grand jury material from one grand jury to another. See United States v.

Content, 735 F.2d 628, 630 (1st Cir. 1984); United States v. Penrod, 609 F.2d

1092, 1095-97 (4th Cir.) cert. denied, 446 U.S. 917 (1979); United States v.

Garcia, 420 F.2d 309, 311 (2d Cir. 1970). “In this kind of situation, ‘[s]ecrecy

of grand jury materials should be protected almost as well by the safeguards at

the second grand jury proceeding, including the oath of the jurors, as by judicial

supervision of the disclosure of such materials.’” Fed. R. Crim. P. 6(e)(3)(C)

Advisory Committee Notes, 97 F.R.D. 245, 269 (1983), quoting United States v.

Malatesta, 583 F.2d 748 (5th Cir. 1978). The rule applies to disclosure

between the regular sitting and the special sitting of grand juries.

M.R.S. § 1256 (1980).

See 15

[M.R. Crim. P. 6(g).] The provisions of M.R. Crim. P. 6(g) are deleted and

replaced.

Its new substance conforms with the prior subdivision (g).

Pursuant to the prior subdivision and its replacement no transcript of witness

testimony or evidence presented to the grand jury may be prepared without

court order. Furthermore, under both, there is no provision for recording the

attorney for the state’s advice or comments to the grand jury. See State v.

Haberski, 449 A.2d 373, 378 (Me. 1982), cert. denied, 495 U.S. 1174 (1983).

The new subdivision and prior Rule 6(g) both require that a transcript may not

be furnished until the movant has established “particularized need” for access

to the transcript. The new subdivision is not intended to alter whatsoever the

“particularized need” standard as previously addressed by the Law Court. See

State v. Philbrick, 551 A.2d 847, 851 (Me. 1988) (inconsistencies between grand

jury testimony and trial testimony “were not so glaring that without more

showing, release of the grand jury transcript was compelled”); State v. Mahaney,

437 A.2d 613, 619-20 (Me. 1981) (mere allegation that there may be changes

between witness’ grand jury testimony and trial testimony does not constitute

particularized need for access to grand jury transcripts); State v. Doody, 432

A.2d 399, 400-402 (Me. 1981) (allegation of possible inconsistencies does not

constitute particularized need for access to grand jury transcripts); State v.

Rich, 395 A.2d 1123, 1127 (Me. 1978), cert. denied, 444 U.S. 854 (1978) (proper

denial of motion for court reporter where defendant merely argued that

transcripts would be valuable for impeachment purposes); State v. Cugliata,

372 A.2d 1019, 1022-25 (Me. 1977) (defendant failed to demonstrate

particularized need for access to grand jury transcripts); see also 1 Cluchey &

Seitzinger, Maine Criminal Practice § 6.8 at III-22 (1992) (“The Law Court has

interpreted the particularized need requirement strictly and has regularly

upheld the Superior Court in denying or stringently limited access to grand jury

testimony under Rule 6”) (footnote omitted). The new subdivision merely

codifies existing case law and provides more specific grounds under which

matters before the grand jury may be disclosed.

[M.R. Crim. P. 6(g)(1)(A).] New subparagraph (A) of paragraph (1) of

subdivision (g) provides for the disclosure of transcripts of evidence presented

to the grand jury preliminarily to or in conjunction with a judicial proceeding

upon order of a justice of the Superior Court. The new subparagraph adopts

the two-pronged definition of “preliminarily to” articulated by the United States

Supreme Court in United States v. Baggot, 463 U.S. 476 (1983). With respect

to the first prong, the Court held that Fed. R. Crim. P. 6(e)(3)(C)(i)

“contemplates only uses related fairly directly to some identifiable litigation,

pending or anticipated. . . . If the primary purpose of disclosure is not to assist

in the preparation or conduct of a judicial proceeding, disclosure . . . is not

permitted.” Id. at 480. With respect to the second prong, the Baggot Court

held that the litigation must be more than a remote contingency before

disclosure can be characterized as preliminary to a judicial proceeding. Id. at

482, n.6.

The new subparagraph adopts the common law definition of judicial

proceeding.

“[T]he term ‘judicial proceeding’ includes any proceeding

determinable by a court, having for its object the compliance of any person,

subject to judicial control, with standards imposed upon his conduct in the

public interest, even though such compliance is enforced without the procedure

applicable to the punishment of crime.” Doe v. Rosenberry, 255 F.2d 118, 120

(2d Cir. 1958) (Hand, J.); see Black’s Law Dictionary 849 (6th ed. 1990). Under

this subdivision, the following may qualify as judicial proceedings: attorney

and judicial disciplinary hearings, law enforcement officer disciplinary

hearings, impeachments hearings, grand jury proceedings of the federal

government or any other state, and trials of the federal government or any

other state.

In addition to the requirement that disclosure must be

preliminarily to or in connection with a judicial proceeding, the movant must

establish particularized need for access to the grand jury transcripts. The

language of the subparagraph is adopted from Fed. R. Crim. P. 6(e)(3)(C)(i).

[M.R. Crim. P. 6(g)(1)(B).] New subparagraph (B) of paragraph (1) of

subdivision (g) permits disclosure of transcripts of evidence presented to the

grand jury to other jurisdictions upon a motion of the attorney for the state.

The subparagraph is substantially similar to the corresponding federal rule, but

uses the broader term “jurisdiction” in order to authorize disclosure to foreign

countries. Compare Fed. R. Crim. P. 6(e)(3)(C)(iv).

[M.R. Crim. P. 6(g)(2).] New paragraph (2) of subdivision (g) also

identifies the necessary parties that must be served notice when a petition for

disclosure is filed under this subdivision. The purpose of the subdivision is to

provide a hearing, prior to disclosure of grand jury materials, to all persons who

might suffer substantial injury. Where the party seeking disclosure is not the

attorney for the state, this subdivision also requires that party to notify the

attorneys for the state who were present during the matter before the grand

jury or their designee, the parties to the proceedings, and such other parties as

the court may direct. If the party seeking disclosure is the attorney for the

state, the proceedings may be ex parte. Attorneys for the state should

ordinarily file disclosure motions ex parte whenever a public filing would result

in a breach of grand jury secrecy. The term “parties to the judicial proceeding”

refers to the named parties in the judicial proceeding for which disclosure is

sought.

[M.R. Crim. P. 6(g)(3).] New paragraph (3) of subdivision (g) adopts the

language and procedure of Fed. R. Crim. P. 6(e)(3)(F) which authorizes a court

to transfer a disclosure hearing to the court conducting the judicial proceeding

which has given rise to a petition for disclosure.

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.