Written by attorney Robert J. Ruffner

Introduction to Discovery and Criminal Law: Part II Discovery by Court Order

Discovery by Court Order

Rule 16(c) i allows you to move the Court to order the State to provide any grand jury transcripts or the preparation of a report of any expert witnesses it may call. Rule 16(c) also may provide you a means to force the State to disclose its theory of the case through a Bill of Particulars.

In most cases the State alleges that a crime took place on a certain date and the reports in the discovery leave no doubt as to when and how you client is alleged to have committed the crime. Sometimes it is not so clear. For example, you may have an indictment that indicates that abuse took place over a period of months, or even years. In such cases you may consider filing a motion for a Bill of Particulars.

If the charging instrument so broad and/or discovery so unclear that it leaves your client unable to prepare for trial, ii the Court may order the State to set out the evidence or theory that the State will rely on at trial. iii The Court will not order this if the discovery and charge make the State's theory clear. The State will also not be ordered to file a Bill if they cannot be any more specific than in the indictment. iv Even if your motion for a Bill of Particulars is not granted, you may learn more about the State's case during argument. Your motion may also provide your client with some additional arguments if the State's proof at trial varies from the dates in the charging instrument and discovery. v

How do you actually get this stuff? The way you obtain discovery in a particular case may vary based on the practices of your D.A. or by local Rule, vi but the options are generally the same. Typically you obtain discovery via written request, a specific follow up request and, if necessary, a motion to compel.

Most district attorneys’ offices will provide discovery as soon as they receive your discovery request. This is true even for automatic discovery. In large part this is because the State does not differentiate between Rules 16(a) and (b), and is simply providing you with “discovery." It is also a result of under funding; they simply don't have the resources to monitor every case to see if an attorney has entered his appearance. Your discovery request makes a convenient trigger in their office workflow.

Your discovery request should be general andspecific. You should make sure you cover all of the general categories of discovery in the Rule. vii You may want to simply copy and paste Rule 16(b) into your request. However, you also want to make sure you specifically include items which are particular to you client's case. While the maintenance logs of the Intox Machine may arguably be “material" to the defense of your OUI client, you should not assume that you will receive them as a part of automatic discovery. Your written request should mention the logs, and anything else you are looking for specifically.

When can you get discovery? The Rule viii states that Rule 16(a) discovery must be provided “within a reasonable time." For Rule 16(b) discovery, the State “shall allow access at any reasonable time." There are additional requirements in misdemeanor cases. In those matters Rule 16(a) discovery must be provided within 10 days of arraignment, while Rule 16(b) discovery shall be “provided" within 10 days of the request.

In practice when you receive discovery will depend on which D.A.'s office you are dealing with. Some will provide discovery immediately and even have it ready for initial appearance or arraignment. Others won’t have a copy for the defendant, or counsel, until after the initial court appearance. ix The manner in which you receive discovery varies also. Many offices will hold discovery for pick up by local attorneys and mail it to others.

After you receive your initial discovery, you will likely find that you don't have everything you asked for. Perhaps you requested 911 recordings or photographs that are not included in your discovery from the State. At this point you will want to follow up with the D.A. If the D.A. fails to cooperate, follow up with a letter which will help at the hearing on the motion to compel that you are about to file.

Rule 16(d) Sanctions

If your D.A. won't give or hasn't given you what you are entitled to even after you asked, and asked again, its time to file a motion. While discovery motions should not be needed to obtain Rules 16(a) and (b) discovery, sometimes, in some places, they are necessary. A motion for sanctions under Rule 16(d) x allows the Court to order the State to provide the requested discovery. It may be that the State provides the discovery before the hearing date is set. In most other cases the State will agree to an order to produce the discovery requested without a hearing. If an agreement cannot be reached, the Court will grant the motion provided the items fall within the broad scope of the discovery rules and are within the State’s possession or control. This includes materials in the possession of the police department or other investigating agencies. xi

Practice Tip: Even if you know you are dealing with a D.A. who won't give you a copy of your client's statement just because it happens to be on a DVD, it still helps your motion to compel disclosure to say, “I asked for it, and then I asked for it again." Also, document everything! Who, and how often, you asked can make a big difference when you request that the Court exclude a piece of undisclosed evidence at trial.


M.R. Crim. P. 16(c), regarding discovery pursuant to court order, states as follows:

(1) Bill of Particulars. The court for cause may direct the filing of a bill of particulars if it is satisfied that counsel has exhausted the discovery remedies under this rule or it is satisfied that discovery would be ineffective to protect the rights of the defendant. The bill of particulars may be amended at any time subject

to such conditions as justice requires.

(2) Grand Jury Transcripts. Discovery of transcripts of testimony of witnesses before a grand jury is governed by Rule 6.

(3) 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.

ii “The purpose of a bill of particulars is to enable the defendant to prepare an adequate defense, to avoid prejudicial surprise at trial, and to establish a record upon which to plead double jeopardy if necessary." State v. Cote, 444 A.2d 34, 36 (Me. 1982) (citing State v. Larabee, 377 A.2d 463, 465 (Me. 1977)).


State v. Hickey, 459 A.2d 573, 581 (Me. 1983).

iv State v. Varney, 641 A.2d 185, 187 (Me. 1994).

v State v. Standring, 2008 ME 188, ¶ 14

vi See UCD discussion in note 5.

vii You may even wish to reference Brady v. Maryland (cite omitted), even though it is arguably covered by M.R. Crim. P. 16(a)(1)(C).

viii See UCD discussion in note 5.

ix Despite the fact that automatic discovery “shall" be provided, some office will allow defendants, typically pro se defendants, to plead guilty without providing them with even automatic discovery. Clearly a “reasonable" time would be some time before the defendant is convicted, but that is a subject for a different article.

x M.R. Crim. P. 16(d), regarding sanctions for noncompliance, states as follows:

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 prejudice.

xi M.R. Crim. P. 16(b)(1).

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