Rule 101. APPLICABILITY; DEFINITIONS; TITLE

(a)

Rules applicable. Except as otherwise provided in (b), these rules

apply to all actions and proceedings before:

(1)

The Supreme Judicial Court when not sitting as the Law Court;

(2) The Superior Court;

(3) The District Court; and

(4) The Probate Court.

(b)

Rules inapplicable. These rules—except for those governing

privilege—do not apply to the following:

(1) The court’s determination under Rule 104(a) of a preliminary

question of fact governing admissibility;

(2) Grand jury proceedings;

(3) Juvenile proceedings under the Maine Juvenile Code other than

(A)

Probable cause determinations in bindover hearings; or

(B) Adjudicatory hearings;

(4) Statutory small claims in the District Court;

(5) Proceedings on applications for warrants;

(6) Sentencing proceedings;

(7) Proceedings regarding revocation, modification, or termination of

probation, parole, administrative release or deferred disposition;

(8)

Bail proceedings;

(9) Proceedings to determine probable cause;

(10) Contempt proceedings in which the court may act summarily; and

(11) Proceedings exempt from applicability of the Rules of Evidence by

statute.

(c)

Definitions. In these rules:

(1) “Civil case” means a civil action or proceeding;

(2) “Criminal case” includes a criminal proceeding;

(3) “Public office” includes a public agency;

(4) “Record” includes a memorandum, report, or data compilation;

(5) A “rule prescribed by the Supreme Judicial Court” means a rule

adopted by the Maine Supreme Judicial Court under statutory or

inherent authority; and

(6) A reference to any kind of written material or any other medium

includes electronically stored information.

proceeding;

(3) “Public office” includes a public agency;

(4) “Record” includes a memorandum, report, or data compilation;

(5) A “rule prescribed by the Supreme Judicial Court” means a rule

adopted by the Maine Supreme Judicial Court under statutory or

inherent authority; and

(6) A reference to any kind of written material or any other medium

includes electronically stored information.

(d)

Title. These rules may be known and cited as the Maine Rules of

Evidence.

Maine Restyling Note [November 2014]

The Maine Rules of Evidence Restyling Project follows a similar project

by the Federal Advisory Committee on Rules of Evidence to restyle the federal

counterparts to our evidence rules as well as similar projects for the Federal

Rules of Civil and Criminal Procedure. The purpose of the restyling is to make

the rules clearer and easier to apply by adoption of simple and consistent

language, style, and format conventions and elimination of ambiguous or

obsolete terminology. Where the Maine Rule of Evidence is substantially

identical in substance to the corresponding Federal Rule of Evidence, the

Advisory Committee recommends that the Court adopt language identical to

that in the Federal Rules, and we have included the Federal Advisory

Committee’s restyling note with the proposed amended Rule. Where a Maine

Rule departs in substance from the corresponding Federal Rule, we have

recommended revisions that follow the same restyling format as in the other

Rules, as described in “The Style Project” in the Federal Advisory Committee

Note to Rule 101.

ntical to

that in the Federal Rules, and we have included the Federal Advisory

Committee’s restyling note with the proposed amended Rule. Where a Maine

Rule departs in substance from the corresponding Federal Rule, we have

recommended revisions that follow the same restyling format as in the other

Rules, as described in “The Style Project” in the Federal Advisory Committee

Note to Rule 101.

The language of Maine Rule 101(c) closely tracks existing Federal Rule

101(b) in terms of the definitions (the proposed Maine restyling changes the

references to Maine references and adds a reference to “or inherent” to

“statutory authority” for rule-making). Otherwise, the proposed Maine Rule

101 differs significantly from the Federal Rule by setting forth, in sections (a)

and (b), a complete description of the applicability of the Rules to proceedings

in Maine courts. As part of the Restyling Project, the Advisory Committee

recommends that the Court consolidate all references to applicability in the

Rules, including those presently in Rules 104(a) and 1101, into one

comprehensive provision in Rule 101. The Committee recommends adding

references to deferred dispositions and administrative release in Rule

101(b)(7) as such dispositions are now common in criminal proceedings and

are sufficiently analogous to probation proceedings to warrant consistent

treatment. The Committee further recommends that the Court eliminate the

final sentence of current Maine Rule 104(a) and repeal Rule 1101 entirely as

part of this consolidation. Finally, the Committee has proposed that the

reference to the title of the Rules be moved from Rule 1102 to a new section

101(d), eliminating the need for Rule 1102 as well.

The restyled Rule does not make specific reference to hearings on

“motions to suppress evidence and the like,” which are referred to in current

ne Rule 104(a) and repeal Rule 1101 entirely as

part of this consolidation. Finally, the Committee has proposed that the

reference to the title of the Rules be moved from Rule 1102 to a new section

101(d), eliminating the need for Rule 1102 as well.

The restyled Rule does not make specific reference to hearings on

“motions to suppress evidence and the like,” which are referred to in current

Maine Rule 104(a) as not excepted from applicability of the Rules of Evidence.

By failing to include an express “exception to the exception” the Committee

does not intend to change Maine law to the effect that the Rules of Evidence

do apply to hearings in proceedings addressing the suppression of evidence.

Federal Advisory Committee Note

The language of Rule 101 has been amended, and definitions have been

added, as part of the general restyling of the Evidence Rules to make them

more easily understood and to make style and terminology consistent

throughout the rules. These changes are intended to be stylistic only. There is

no intent to change any result in any ruling on evidence admissibility.

The reference to electronically stored information is intended to track

the language of Fed. R. Civ. P. 34.

The Style Project

The Evidence Rules are the fourth set of national procedural rules to be

restyled. The restyled Rules of Appellate Procedure took effect in 1998. The

restyled Rules of Criminal Procedure took effect in 2002. The restyled Rules

of Civil Procedure took effect in 2007. The restyled Rules of Evidence apply

the same general drafting guidelines and principles used in restyling the

Appellate, Criminal, and Civil Rules.

1. General Guidelines.

nal procedural rules to be

restyled. The restyled Rules of Appellate Procedure took effect in 1998. The

restyled Rules of Criminal Procedure took effect in 2002. The restyled Rules

of Civil Procedure took effect in 2007. The restyled Rules of Evidence apply

the same general drafting guidelines and principles used in restyling the

Appellate, Criminal, and Civil Rules.

1. General Guidelines.

Guidance in drafting, usage, and style was provided by Bryan Garner,

Guidelines for Drafting and Editing Court Rules, Administrative Office of the

United States Courts (1969) and Bryan Garner, Dictionary of Modern Legal

Usage (2d ed. 1995). See also Joseph Kimble, Guiding Principles for Restyling

the Civil Rules, in Preliminary Draft of Proposed Style Revision of the Federal

Rules

of

Civil

Procedure,

at

page

x

(Feb.

2005)

(available

at

http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Prelim_draft_pro

posed_pt1.pdf); Joseph Kimble, Lessons in Drafting from the New Federal

Rules of Civil Procedure, 12 Scribes J. Legal Writing 25 (2008-2009). For

specific commentary on the Evidence restyling project, see Joseph Kimble,

Drafting Examples from the Proposed New Federal Rules of Evidence, 88 Mich.

B.J. 52 (Aug. 2009); 88 Mich. B.J. 46 (Sept. 2009); 88 Mich. B.J. 54 (Oct. 2009);

88 Mich. B.J. 50 (Nov. 2009).

2. Formatting Changes.

Many of the changes in the restyled Evidence Rules result from using

format to achieve clearer presentations. The rules are broken down into

constituent parts, using progressively indented subparagraphs with headings

and substituting vertical for horizontal lists. “Hanging indents” are used

throughout. These formatting changes make the structure of the rules graphic

and make the restyled rules easier to read and understand even when the

words are not changed. Rules 103, 404(b), 606(b), and 612 illustrate the

benefits of formatting changes.

3. Changes to Reduce Inconsistent, Ambiguous, Redundant, Repetitive, or

Archaic Words.

al for horizontal lists. “Hanging indents” are used

throughout. These formatting changes make the structure of the rules graphic

and make the restyled rules easier to read and understand even when the

words are not changed. Rules 103, 404(b), 606(b), and 612 illustrate the

benefits of formatting changes.

3. Changes to Reduce Inconsistent, Ambiguous, Redundant, Repetitive, or

Archaic Words.

The restyled rules reduce the use of inconsistent terms that say the

same thing in different ways. Because different words are presumed to have

different meanings, such inconsistencies can result in confusion. The restyled

rules reduce inconsistencies by using the same words to express the same

meaning. For example, consistent expression is achieved by not switching

between “accused” and “defendant” or between “party opponent” and

“opposing party” or between the various formulations of civil and criminal

action/case/proceeding.

The restyled rules minimize the use of inherently ambiguous words.

For example, the word “shall” can mean “must,” “may,” or something else,

depending on context. The potential for confusion is exacerbated by the fact

the word “shall” is no longer generally used in spoken or clearly written

English. The restyled rules replace “shall” with “must,” “may,” or “should,”

depending on which one the context and established interpretation make

correct in each rule.

The restyled rules minimize the use of redundant “intensifiers.” These

are expressions that attempt to add emphasis, but instead state the obvious

and create negative implications for other rules. The absence of intensifiers in

the restyled rules does not change their substantive meaning. See, e.g., Rule

104(c) (omitting “in all cases”); Rule 602 (omitting “but need not”); Rule

611(b) (omitting “in the exercise of discretion”).

The restyled rules also remove words and concepts that are outdated or

redundant.

4. Rule Numbers.

vious

and create negative implications for other rules. The absence of intensifiers in

the restyled rules does not change their substantive meaning. See, e.g., Rule

104(c) (omitting “in all cases”); Rule 602 (omitting “but need not”); Rule

611(b) (omitting “in the exercise of discretion”).

The restyled rules also remove words and concepts that are outdated or

redundant.

4. Rule Numbers.

The restyled rules keep the same numbers to minimize the effect on

research. Subdivisions have been rearranged within some rules to achieve

greater clarity and simplicity.

5. No Substantive Change.

The Committee made special efforts to reject any purported style

improvement that might result in a substantive change in the application of a

rule. The Committee considered a change to be “substantive” if any of the

following conditions were met:

a.

Under the existing practice in any circuit, the change could lead

to a different result on a question of admissibility (e.g., a change that

requires a court to provide either a less or more stringent standard

in evaluating the admissibility of particular evidence);

b.

Under the existing practice in any circuit, it could lead to a

change in the procedure by which an admissibility decision is made

(e.g., a change in the time in which an objection must be made, or a

change in whether a court must hold a hearing on an admissibility

question);

c.

The change would restructure a rule in a way that would alter

the approach that courts and litigants have used to think about, and

argue about, questions of admissibility (e.g., merging Rules 104(a)

and 104(b) into a single subdivision); or

d.

The amendment would change a “sacred phrase”—one that has

become so familiar in practice that to alter it would be unduly

disruptive to practice and expectations. Examples in the Evidence

Rules include “unfair prejudice” and “truth of the matter asserted.”

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