Committee Advisory Note [December 2014]
The Rule parallels the content of Rule 44C of the Maine Rules of Criminal Procedure but differs with the following respects.
First, the heading is changed from “PROCEDURE FOR OBTAINING FUNDS FOR EXPERT OR INVESTIGATIVE ASSISTANCE FOR INDIGENT DEFENDANT” to “APPLICATION TO MAINE COMMISSION ON INDIGENT LEGAL SERVICES FOR FUNDS FOR EXPERT OR INVESTIGATIVE ASSISTANCE FOR INDIGENT DEFENDANT” for purposes of clarity.
Second, the use of a subdivision (a) and its heading “Application to the Maine Commission on Indigent Legal Services” is omitted, because there are no additional subdivisions.
Third, the final sentence is not carried forward into the new Rule because the procedures established by the Commission for application for and approval of requests have now been published.
[Advisory Notes to former Maine Rules of Criminal Procedure]
Advisory Committee Note—1997
[M.R. Crim. P. 44C.] Some perplexity has been expressed by the bench and bar as to whether a motion by defense counsel for funds for investigative or expert assistance for an indigent defendant may be presented, heard and determined ex parte. An ex parte motion may not be presented “concerning the merits of a contested matter.” Me. Bar. Rule 3.7(h)(2); if the prosecution is not given notice of the motion, there is no way to tell whether the motion is “contested.” This circularity is repeated in the Maine Code of Judicial Conduct, which permits a limited ex parte motion for “administrative purposes,” subject to the prosecutor’s right to a “reasonable opportunity to respond.” Canon 3(B)(7)(a). The Justices of the Superior Court have stated that “some guidance from the Criminal Rules committee would be appropriate” (Letter of February 24, 1994 from Chief Justice Delahanty to District Attorney Mills)).
The Committee believes that the procedure for obtaining funds for expert or investigative assistance should be regularized in the rules and that a limited ex parte procedure should be authorized.
Subdivision (a) provides the grounds of the motion, while the remaining subdivisions provide a procedure for presenting an ex parte motion and for determining whether the motion should be heard and determined ex parte.
In an ex parte motion is granted, subdivision (d) provides that the court must “order the appropriate docket entry.” As contemplated by the subdivision, to be appropriate the entry should at a minimum identify in general terms that a motion to employ expert or investigative assistance or both has been granted and should disclose the amount(s) authorized.
Advisory Committee Note—2003
[M.R. Crim. P. 44C(a)(1).] This amendment makes the paragraph gender neutral.
Advisory Note—July 2010
The amendment to M.R. Crim. P. 44C is necessitated by the establishment of the Maine Commission on Indigent Legal Services. See Advisory Note—July 2010 to M.R. Crim. P. 44. The changes reflect (subject to the necessary transition period addressed in this amendment) a transfer of responsibility for authorizing and funding expert and investigative assistance from the Judicial Branch to the Commission. Id.
In the context of obtaining funds for expert or investigative assistance by an indigent, Rule 44C is substantially modified to reflect that it is the Commission, rather than the Judicial Branch, that is now responsible both for paying for any such funds and for establishing the procedures to be used by indigent defendants for obtaining the needed funds.
During the transition period before the Commission publishes procedures to assume this responsibility, requests for this assistance should continue to be presented to the court by motion. Once this change in responsibility to approve and pay for investigative and expert assistance takes effect, the clerks of the trial courts will have no responsibility for docketing the attempted filing of motions requesting investigative or expert assistance and, in contrast to the provisions of M.R. Civ. P. 5(f) that pertains to filings not in compliance with statutes, rules or orders, the clerk will have no obligation to retain a copy of the attempted filing and notice.
Effective July 1, 2010, all claims for payment for performance of expert and investigative assistance must be presented to the Commission on Indigent Legal Services for payment. The Judicial Branch lacks the authority or the funds to make such payments after July 1, 2010.
