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Rule 16 – Discovery by the Defendant

May 13, 2021 | Criminal Procedure, Maine

(a) Automatic Discovery.

(1)Scope of Automatic Discovery. The attorney for the State shall provide as automatic discovery all matters set forth in this subdivision that are within the possession or control of the attorney for the State. The obligation of the attorney for the State extends to matters within the possession or control of any member of the attorney for the State’s staff and of any official or employee of this State or any political subdivision thereof who regularly reports or who, with reference to a particular case, has reported to the office of the attorney for the State.
(2)Duty of the Attorney for the State. The attorney for the State shall provide the following to the defendant:

(A) The police report(s) and any other documents used by the prosecutor in deciding to charge the defendant.
(B) A statement describing any testimony or other evidence intended to be used against the defendant that

(i) Was obtained as a result of a search and seizure or the hearing or recording of a wire or oral communication;
(ii) Resulted from any confession, admission, or statement made by the defendant; or
(iii) Relates to a lineup, showup, picture, or voice identification of the defendant.
(C) Any written or recorded statements and the substance of any oral statements made by the defendant.
(D) A statement describing any matter or information known to the attorney for the State that may not be known to the defendant and that tends to create a reasonable doubt of the defendant’s guilt as to the crime charged.
(E) A copy of any notification provided to the court by the attorney for the State pursuant to Rule 6(e) or (h) that pertains to the case against the defendant.
(F) Any books, papers, documents, electronically stored information, photographs (including motion pictures and video tapes), tangible objects, buildings or places, or copies or portions thereof, that the attorney for the State intends to use as evidence in any proceeding or that were obtained or belong to the defendant.
(G) Any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons.
(H) The names, dates of birth, and, except as otherwise provided by 17-A M.R.S. §1176(4) relative to alleged victims, the addresses of the witnesses whom the State intends to call in any proceeding. The fact that a listed witness is not called shall not be commented upon at trial.
(I) Written or recorded statements of witnesses and summaries of statements of witnesses contained in police reports or similar matter.
(3)Exception: Work Product. The attorney for the State is not required to disclose legal research or records, correspondence, reports, or memoranda to the extent that they contain the mental impressions, conclusions, opinions, or legal theories of the attorney for the State or members of his or her legal staff.
(4)Manner of Providing Automatic Discovery. With respect to written materials, except as otherwise provided in subdivision (b)(1), the attorney for the State shall provide copies thereof. With respect to tangible objects, the attorney for the State shall allow the defendant at any reasonable time and in any reasonable manner to inspect, photograph, or have reasonable tests made. With respect to audio, video, motion pictures, photographic evidence, or electronically stored information, the attorney for the State shall disclose the existence of such evidence with automatic discovery and, upon the request of the defendant and where practicable, shall provide the defendant an opportunity to obtain an electronic copy, at any reasonable time and in any reasonable manner.

When the attorney for the State is unable to provide the defendant an opportunity to obtain an electronic copy of audio, video, motion pictures, photographic evidence, or electronically stored information because the technology makes such provision impracticable, or when such copying is barred, for example, as controlled by 15 M.R.S. §1121 relative to sexually explicit material, the attorney for the State shall provide the defendant a reasonable opportunity to review the audio, video, motion pictures, photographic evidence, or electronically stored information.

(b) Time for Providing Automatic Discovery.

(1)At Initial Appearance on a Class A, B, or C Charge or Arraignment on a Class D or E Charge. The attorney for the State shall produce and allow the defendant to review the information described in subdivision (a)(2)(A).
(2)After a Defendant has entered a “Not Guilty” Plea to a Class D or E Crime. In the manner dictated by subdivision (a)(4), the attorney for the State shall provide the information described in subdivision (a)(2)(B) through (I) within 7 days after the arraignment or entry of a written plea of “not guilty.”
(3)When a Dispositional Conference is to Occur Before Indictment for a Class A, B, or C Crime. In the manner dictated by subdivision (a)(4), the attorney for the State shall provide the information described in subdivision (a)(2)(B) through (I) no later than 14 days before any dispositional conference that occurs before indictment.
(4)At Arraignment on a Class A, B, or C Crime. In the manner dictated by subparagraph (a)(4), the attorney for the State shall provide the information described in subdivision (a)(2)(B) through (I) at arraignment.
(5)Continuing Duty to Disclose. If additional material that would have been furnished to the defendant as automatic discovery comes within the possession or control of the attorney for the State after the timeframes listed in subdivision (b)(1)-(4), the attorney for the State shall so inform the defendant within 14 days thereafter.
(6)Protective Order. Upon motion of the attorney for the State, and for good cause shown, the court may make any order that justice requires.
(7)Defendant’s Obligation. Promptly after becoming aware of any material that the defendant wishes to review in order to prepare a defense, and that should have but has not yet been provided as automatic discovery pursuant to this Rule, the defendant must make a written request to the State for the material. The State must respond to the request, in writing, within 14 days.
(c) Discovery Upon Request

(1)Scope and Timing of Request. Except as to materials the State is required to provide as automatic discovery pursuant to subparagraph (a)(2) or work product as defined in subparagraph (a)(3), a defendant may make a written request to have the State provide any other books, papers, documents, electronically stored information, photographs (including motion pictures and videotapes), or copies or portions thereof, or tangible objects, or access to buildings or places, that are material and relevant to the preparation of the defense.
(2)Response by the Attorney for the State. Upon receipt of a written request from the defendant pursuant to subdivision (c)(1), the attorney for the State shall, within a reasonable time, provide a written response to the defendant that:

(A) provides the requested material, in the manner dictated by subdivision (a)(4);
(B) notifies the defendant that the requested material will be provided as soon as it can reasonably be obtained by the State;
(C) notifies the defendant that the requested material is not within the possession or control of the State; or
(D) notifies the defendant that the State objects to the request.

If additional material that would have been furnished to the defendant under this subdivision comes within the possession or control of the attorney for the State after the defendant has had access to similar materials, the attorney for the State shall so inform the defendant within 14 days thereafter.

(d) Discovery Pursuant to Court Order.

(1)Bill of Particulars. A motion for a bill of particulars may be entertained and granted by the court if defense counsel or the unrepresented defendant satisfies the court that

(A) Discovery has been completed under this Rule; and
(B) That such discovery is inadequate to establish a record upon which to plead double jeopardy, or to prepare an effective defense because further information is necessary respecting the charge stated in the charging instrument, or to avoid unfair prejudice.

The bill of particulars may be amended at any time subject to such conditions as justice requires.

(2)Motions for Discovery Necessitated by Subparagraph (c)(2)(D). If the State notifies the defendant that it objects to his or her written request for additional discovery, the defendant may file a motion with the court, asking that the court order the State to provide any books, papers, documents, electronically stored information, photographs (including motion pictures and videotapes), or copies or portions thereof, or tangible objects, or access to buildings or places, that the defendant has requested and that are material and relevant to the preparation of the defense.

The State shall respond to any such motion within 7 days. Thereafter, the court may discuss the motion at a dispositional conference and may rule on the motion with or without a hearing.

(3)Grand Jury Transcripts. Discovery of transcripts of testimony of witnesses before a grand jury is governed by Rule 6.
(4)Order for Preparation of Report by Expert Witness. If an expert witness whom the State intends to call in any proceeding has not prepared a report of examination or tests, the court, upon motion, may order that the expert prepare and the attorney for the State serve a report stating the subject matter on which the expert is expected to testify, the substance of the facts to which the expert is expected to testify and a summary of the expert’s opinions and the grounds for each opinion.
(5)Specific Discovery Order in Certain Cases. In all homicide cases and, by order of the court, in other cases involving forensic materials, a specific discovery order will be issued that will control the discovery process.
(e) Sanctions for Noncompliance. If the attorney for the State fails to comply with this Rule, the court, on motion of the defendant or on its own motion, may take appropriate action, which may include, but is not limited to, one or more of the following: requiring the attorney for the State to comply; granting the defendant additional time or a continuance; relieving the defendant from making a disclosure required by Rule 16A; prohibiting the attorney for the State from introducing specified evidence; and dismissing charges with or without prejudice.

Me. R. Uni. Crim. P. 16

Last amended effective November 2, 2016.