Rule 101 Applicability; Definitions; Title

Maine Restyling Note [November 2014]

The Maine Rules of Evidence Restyling Project follows a similar project by the Federal Advisory Committee on Rules of Evidence to restyle the federal counterparts to our evidence rules as well as similar projects for the Federal Rules of Civil and Criminal Procedure. The purpose of the restyling is to make the rules clearer and easier to apply by adoption of simple and consistent language, style, and format conventions and elimination of ambiguous or obsolete terminology. Where the Maine Rule of Evidence is substantially identical in substance to the corresponding Federal Rule of Evidence, the Advisory Committee recommends that the Court adopt language identical to that in the Federal Rules, and we have included the Federal Advisory Committee’s restyling note with the proposed amended Rule. Where a Maine Rule departs in substance from the corresponding Federal Rule, we have recommended revisions that follow the same restyling format as in the other Rules, as described in “The Style Project” in the Federal Advisory Committee Note to Rule 101.

The language of Maine Rule 101(c) closely tracks existing Federal Rule 101(b) in terms of the definitions (the proposed Maine restyling changes the references to Maine references and adds a reference to “or inherent” to “statutory authority” for rule-making). Otherwise, the proposed Maine Rule 101 differs significantly from the Federal Rule by setting forth, in sections (a) and (b), a complete description of the applicability of the Rules to proceedings in Maine courts. As part of the Restyling Project, the Advisory Committee recommends that the Court consolidate all references to applicability in the Rules, including those presently in Rules 104(a) and 1101, into one comprehensive provision in Rule 101. The Committee recommends adding references to deferred dispositions and administrative release in Rule 101(b)(7) as such dispositions are now common in criminal proceedings and are sufficiently analogous to probation proceedings to warrant consistent treatment. The Committee further recommends that the Court eliminate the final sentence of current Maine Rule 104(a) and repeal Rule 1101 entirely as part of this consolidation. Finally, the Committee has proposed that the reference to the title of the Rules be moved from Rule 1102 to a new section 101(d), eliminating the need for Rule 1102 as well.

The restyled Rule does not make specific reference to hearings on “motions to suppress evidence and the like,” which are referred to in current

Maine Rule 104(a) as not excepted from applicability of the Rules of Evidence. By failing to include an express “exception to the exception” the Committee does not intend to change Maine law to the effect that the Rules of Evidence do apply to hearings in proceedings addressing the suppression of evidence.

Federal Advisory Committee Note

The language of Rule 101 has been amended, and definitions have been added, as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

The reference to electronically stored information is intended to track the language of Fed. R. Civ. P. 34.

The Style Project

The Evidence Rules are the fourth set of national procedural rules to be restyled. The restyled Rules of Appellate Procedure took effect in 1998. The restyled Rules of Criminal Procedure took effect in 2002. The restyled Rules of Civil Procedure took effect in 2007. The restyled Rules of Evidence apply the same general drafting guidelines and principles used in restyling the Appellate, Criminal, and Civil Rules.

1. General Guidelines.

Guidance in drafting, usage, and style was provided by Bryan Garner, Guidelines for Drafting and Editing Court Rules, Administrative Office of the United States Courts (1969) and Bryan Garner, Dictionary of Modern Legal Usage (2d ed. 1995). See also Joseph Kimble, Guiding Principles for Restyling the Civil Rules, in Preliminary Draft of Proposed Style Revision of the Federal Rules of Civil Procedure, at page x (Feb. 2005) (available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Prelim_draft_pro posed_pt1.pdf); Joseph Kimble, Lessons in Drafting from the New Federal Rules of Civil Procedure, 12 Scribes J. Legal Writing 25 (2008-2009). For specific commentary on the Evidence restyling project, see Joseph Kimble, Drafting Examples from the Proposed New Federal Rules of Evidence, 88 Mich.

B.J. 52 (Aug. 2009); 88 Mich. B.J. 46 (Sept. 2009); 88 Mich. B.J. 54 (Oct. 2009); 88 Mich. B.J. 50 (Nov. 2009).

2. Formatting Changes.

Many of the changes in the restyled Evidence Rules result from using format to achieve clearer presentations. The rules are broken down into constituent parts, using progressively indented subparagraphs with headings and substituting vertical for horizontal lists. “Hanging indents” are used throughout. These formatting changes make the structure of the rules graphic and make the restyled rules easier to read and understand even when the words are not changed. Rules 103, 404(b), 606(b), and 612 illustrate the benefits of formatting changes.

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

The restyled rules reduce the use of inconsistent terms that say the same thing in different ways. Because different words are presumed to have different meanings, such inconsistencies can result in confusion. The restyled rules reduce inconsistencies by using the same words to express the same meaning. For example, consistent expression is achieved by not switching between “accused” and “defendant” or between “party opponent” and “opposing party” or between the various formulations of civil and criminal action/case/proceeding.

The restyled rules minimize the use of inherently ambiguous words. For example, the word “shall” can mean “must,” “may,” or something else, depending on context. The potential for confusion is exacerbated by the fact the word “shall” is no longer generally used in spoken or clearly written English. The restyled rules replace “shall” with “must,” “may,” or “should,” depending on which one the context and established interpretation make correct in each rule.

The restyled rules minimize the use of redundant “intensifiers.” These are expressions that attempt to add emphasis, but instead state the obvious and create negative implications for other rules. The absence of intensifiers in the restyled rules does not change their substantive meaning. See, e.g., Rule

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.”

Advisers’ Note to Former M.R. Evid. 11011 (February 2, 1976)

Subdivision (a) makes these rules applicable to all actions and proceedings in the named courts with the exceptions provided in (b). They do not apply in terms to the Administrative Court, which came into being under that name by P.L. 1973, c. 303. Previously the Administrative Code, 5 M.R.S.A. § 2301-52, had used the terms “Administrative Hearing Office” and “Hearing Commissioner’’, which were changed to Administrative Court and Administrative Court Judge. The purpose was to dignify the office with more appropriate titles. The matter is not of great practical importance because § 2405 provides that “the rules of evidence as applied in the trial of civil cases in the State shall be observed whenever practicable.’’ This would incorporate these rules by reference. The permitted relaxation as to “facts not reasonably susceptible of proof under these rules’’ seems reasonable for this type of proceeding.2

Subdivision (b) lists the exceptions from the applicability other than those with respect to privilege. Subsection (1) excludes determination of preliminary questions of fact except as otherwise provided in Rule 104,3 which makes the rules applicable to hearings on motions to suppress evidence and the like.

1 The former Advisers’ Note to Rule 101 is now irrelevant because the Rule it references has been removed by the restyling, so its text is not included. The Advisers’ Notes to former Rule 1101 are now applicable to Rule 101, however, so the Advisers’ Notes to the former Rule 1101 have been included at this point. Caution: the subsections referenced do not always match up to the newly restyled subsections of Rule 101; some changes have been noted.

2 The Administrative Code referenced in the first paragraph was repealed and replaced by P.L. 1977, ch. 551 (effective July 1, 1978), creating the Maine Administrative Procedure Act, 5 M.R.S. §§ 8001-11008 (2014). The standards of evidence to be applied in administrative proceedings are addressed in 5 M.R.S. 9057 (2014). The Administrative Court was abolished and its functions transferred to the District Court by P.L. 1999, ch. 547, § B-12 (effective March 15, 2001). See M.R. Civ. P. 80G.

3 Rule 104(a).

Subsection (2) concerns proceedings before grand juries. This is in accord with Maine law. State v. Douglas, 150 Me. 442, 114 A.2d 253 (1955).

Subsection (3)4 excludes various miscellaneous proceedings. It clarifies but does not appear to change Maine law. The rules do not apply to proceedings on probation or parole violations. The Supreme Court has held that due process must be observed on hearings to determine whether a condition of probation or parole has been violated. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756 (1973). Due process does not, however, mandate observation of the rules of evidence. The same principles apply to adjudications of juvenile delinquency.5

Subsection (4)6 excludes contempt proceedings in which the court may act summarily. This power is confined to cases where the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. M.R.Crim.P. 42(a).7

These rules do not apply to proceedings before the Industrial Accident Commission.8 It would be beyond the authority of the Supreme Judicial Court to prescribe rules for hearings before the Commission. The Court in exercising its reviewing functions has commented upon the necessity of there being “competent evidence to warrant the Commissions’ findings.” See, e.g., Larrabee’s Case, 120 Me. 242, 113 A. 268 (1921); Goldthwaite v. Sheraton Restaurant, 154 Me. 214, 145 A.2d 362 (1958). Some of the cases speak of its being bad practice to admit hearsay but that when admitted without objection it can be given corroborating weight. In practice the Commission has heeded this advice.

4 Now subsections (4)–(9).

5 This language has since been superseded, as the Maine Rules of Evidence now apply to juvenile adjudications.

6 Now subsection (10).

7 M.R. Crim. P. 42 now states that contempt proceedings are governed by M.R. Civ. P. 66. Civil Rule 66(b)(2) best supports this sentence.

8 Now the Workers Compensation Board.

Explanation of Amendment (October 1, 1976)

This amendment is a purely formal change to make it completely clear that the rules of evidence do not apply to small claims proceedings in the District Court. The statute, 14 M.R.S.A. §§ 7451-7457,9 calls for a “simple, speedy and informal procedure”10 in which “the technical rules of evidence shall not apply.”11 It was never intended to alter this procedure, but the generality of Rule I 101(a)12 making the rules applicable to all proceedings in the District Court warrants an express exclusion of coverage of small claims proceedings.

Advisory Committee Note

(February 15, 1988 Amendment)

This amendment of Rule 1101 makes the rules inapplicable to proceedings for the determination of probable cause. Traditionally in probable cause hearings, for bindover of a defendant pending grand jury indictment, the rules of evidence have not been strictly applied. Usually the primary facts supporting the charge are established by evidence admissible under the rules, but subsidiary points are often established by hearsay and other inadmissible evidence. Strict applicability of the rules of evidence to preliminary proceedings of this sort could lead to needless formality in preliminary proceedings, waste of time, and abuse of preliminary probable cause hearings to harass the prosecution.

9 These statutes have been repealed; the information can now be found at 14 M.R.S. §§ 7481-7487 (2014).

10 At 14 M.R.S. § 7481 (2014).

11 This language is no longer in the Small Claims statutes. Maine Rules of Small Claims Procedure 6(b) states that “[t]he rules of evidence, other than those with respect to privileges, shall not apply.”

12 Rule 101(a)(3).

Federal Rule 1101(3) exempts probable cause hearings from the applicability of the Federal Rules of Evidence.13

The amendment also makes clear what has already been accomplished by statute, namely that the Rules of Evidence do not apply to juvenile detention (analogous to probable cause or bindover hearings) but they do apply to juvenile adjudications. See Maine Juvenile Code, 15 M.R.S.A. § 3307(1).14

Advisory Committee Note

(December 29, 1994 Amendment)

This amendment conforms the Rules of Evidence to recent amendments in the Maine Juvenile Code, 15 M.R.S.A. §§ 3001 et seq. The Maine Juvenile Code, as presently applied, contemplates a bindover hearing in the District Court at which the court determines whether there is probable cause to believe that a juvenile crime has been committed and whether after consideration of the seriousness of the crime, the characteristics of the juvenile and the dispositional alternatives available to the Juvenile Court it is appropriate to prosecute the juvenile as an adult. 15 M.R.S.A. §3101. The Code provides that the Rules of Evidence shall apply “only to the probable cause portion of the bindover15 hearing.” 15 M.R.S.A. §3101(4)(B). The Code also provides that the Rules of Evidence “shall apply in the adjudicatory hearing” (15 M.R.S.A. §3310(1)) but “shall not16 apply to dispositional hearings.” (15 M.R.S.A. §3312(1)). Current practice in the Juvenile Court follows the requirements of the Code. This amendment brings the express language of the Rules in line with the Code as well.

13 Federal Rule 1101(c) currently states that the Federal Rules of Evidence do not apply when issuing search/arrest warrants or criminal summons, or in “a preliminary examination in a criminal case.”

14 Subsection (1) of this statute has been repealed. Further, the entire sentence has been superseded by the 1994 amendment.

15 “. . . bind-over . . . .”

16 “Do not . . . .”

Advisory Committee Note

(June 5, 1995 Amendment)

This amendment is intended to clarify the recent amendment of Rule 1101 with respect to juvenile proceedings. The rules do not apply to any activities in the juvenile court, regardless of how described or denominated, other than the determination of probable cause in bindover proceedings and adjudicatory proceedings.