Written by attorney Robert J. Ruffner

Introduction to Maine Discovery and Criminal Law- Part I - Discovery by Rule

Introduction to Discovery and Criminal Law: Getting What You Need to Defend Your Client in Maine State Court

Why You Don't Have to Go Hunting with D.A. Jim Trotter** i**

You've just been hired to represent someone accused of a crime. You have a charging document that while technically laying out the elements of the crime does not actually help you answer the question of “what are they saying my client did?" Discovery under the Maine Rules of Criminal Procedure helps a defendant and his attorney answer that question by providing access to the evidence possessed by the State. Discovery in a criminal case can take many forms, ranging from police reports and witness statements to photographs and videotapes. It may include records of prior convictions, or a certified copy of a person’s driving record, expert reports or the results of scientific examinations. Your job is to get as much material from the State and other sources to cast doubt on the charges your client is facing.

Discovery by Rule

Maine Rules of Criminal Procedure 16(a), or automatic discovery, requires the State to provide your client with certain materials. ii In general these materials constitute evidence or testimony which the government intends to admit against the defendant. The government obtains such materials in one or several of the following ways: search or seizure, wiretap, recorded conversation or the substance of any “heard" verbal communication, statements made by the defendant, visual or voice identification of the defendant. Included in this list are all of the defendant's statements and any additional fact known to the State which is exculpatory.

The State is required to automatically “furnish" Rule 16(a) materials to the defendant. It is not sufficient for the State to make these materials available. Nor can the State charge for Rule 16(a) materials. iii

Rule 16(b) iv allows the defendant’s attorney to request in writing certain discovery materials from the State. This “discovery upon request" includes anything which is in the State attorney’s possession or control; and (1) is material to the preparation of the defense, or (2) which the State intends to use as evidence in any proceeding, or (3) belonged to the defendant. Of course, there is an exception for the District Attorney’s work product such as written materials that reflect his thoughts and conclusions about the case.

Rule16(b) also requires the State to disclose any expert reports, names address and dates of birth of any witnesses they intend to call, written or recorded statements of any witness and summaries of the same in any police reports. v

Practice Tip: Often the State does not routinely receive or request certain items from the police; e.g., dispatch records, 911 calls, and video and audio recording from police cruisers (in some cases police officers will record the audio even away from the cruisers, while questioning witnesses or suspects). These materials may contain criminal statements (or summaries of oral statements) of witnesses. Never assume that just because the D.A. didn't give you the 911 call or cruiser video that the material doesn't exist. If you want it, make sure you follow-up with the D.A. in writing; the D.A. handles many cases, and the materials may be buried in the files.


i Jim Trotter, III is the DA character in the comedic film, My Cousin Vinny. The following dialog is from the movie:

Mona Lisa Vito: You're goin’ hunting? Vinny Gambini: That's right. Mona Lisa Vito: Why are you going hunting? Shouldn't you be out preparing for court? Vinny Gambini: I was thinking last night. If only I knew what he knows, you know? If he'd let me look at his files; oh boy. Mona Lisa Vito: I don't get it. What does getting to Trotter's files have anything to do with hunting? Vinny Gambini: Well, you know, two guys, out in the woods, guns, on the hunt. It's a bonding thing, you know; show him I'm one of the boys. He's not gonna let me look at his files, but maybe he'll relax enough to drop his guard so I can finesse a little information out of him.

Later in the movie…

Mona Lisa Vito: Don't you wanna know why Trotter gave you his files? Vinny Gambini: I told you why already. Mona Lisa Vito: He has to, by law, you're entitled. It's called disclosure, you [########]! He has to show you every thing, otherwise it could be a mistrial. He has to give you a list of all his witnesses, you can talk to all his witnesses, he's not allowed any surprises. [Vinny has a blank look on his face.]

My Cousin Vinny (20th Century Fox 1992) available at http// (Last visited Nov. 22, 1010).

ii M.R. Crim. P. 16(a), regarding automatic discovery, states as follows:

(1) Duty of the Attorney for the State. The attorney for the state shall furnish to the defendant within a reasonable time:

(A) A statement describing any testimony or other evidence intended to be used against the defendant which:

(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.

(B) Any written or recorded statements and the substance of any oral statements made by the defendant.

(C) A statement describing any matter or information known to the attorney for the state which may not be known to the defendant and which tends to create a reasonable doubt of the defendant’s guilt as to the crime charged.

(D) A copy of any notification provided to the Superior Court by the attorney for the state pursuant to Rule 6(h) that pertains to the case against the defendant.

(2) Continuing Duty to Disclose. The attorney for the state shall have a continuing duty to disclose the matters specified in this subdivision.

(3) Charge of a Class D or Class E Crime in District Court. Discovery shall be provided to a defendant charged with a Class D or Class E crime in District Court within 10 days of arraignment.

iii“[T]he defendant cannot be charged a fee for the production of Rule 16(a) materials." York County Commissioners v. James Boulus, Laurence A. Gardner, Mathew B. Nichols and David N. Wood, ALFSC-CV-95-570 (Decision and Order, June 16, 1996) J. Crowley.

iv M.R. Crim. P. 16(b), regarding discovery upon request, states as follows:

(1) Duty of the Attorney for the State. Upon the defendant’s written request, the attorney for the state, except as provided in subdivision (3), shall allow access at any reasonable time to those matters specified in subdivision (2) which are within the attorney for the state’s possession or control. The attorney for the

state’s obligation 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 with reference to the particular case has reported to the attorney for the state’s office. In affording

this access, the attorney for the state shall allow the defendant at any reasonable time and in any reasonable manner to inspect, photograph, copy, or have reasonable tests made.

(2) Scope of Discovery. The following matters are discoverable:

(A) Any books, papers, documents, photographs (including motion pictures and video tapes), tangible objects, buildings or places, or copies or portions thereof, which are material to the preparation of the defense or which the attorney for the state intends to use as evidence in any proceeding or which were

obtained or belong to the defendant;

(B) 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;

(C) The names and, except as provided in Title 17-A M.R.S. § 1176(4), the addresses of the witnesses whom the state intends to call in any proceeding;

(D) Written or recorded statements of witnesses and summaries of statements of witnesses contained in police reports or similar matter;

(E) The dates of birth of the witnesses the state intends to call in any proceeding. The fact that a listed witness is not called shall not be commented upon at trial.

(3) Exception: Work Product. Disclosure shall not be required of legal research or of 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) Continuing Duty to Disclose. If matter which would have been furnished to the defendant under this subdivision comes within the attorney for the state’s possession or control after the defendant has had access to similar matter, the attorney for the state shall promptly so inform the defendant.

(5) Charge of a Class D or Class E Crime in District Court. Discovery shall be provided to a defendant charged with a Class D or Class E crime in District Court within 10 days of the request.

(6) Protective Order. Upon motion of the attorney for the state, and for good cause shown, the court may make any order which justice requires.

v The Unified Criminal Dockets in Cumberland County and Bangor each have their own version of the Rules of Criminal Procedure. They may vary wildly from the Maine Rules of Criminal Procedure, particularly in the area of discovery. For example, the Cumberland County UCD Rules eliminate the distinction between Rules 16(a) and 16(b) discovery and also greatly accelerate the time by which the State must provide discovery. Unless specifically mentioned, all references to "the Rules" refer to the Maine Rules of Criminal procedure and not the local UCD Rules.

Additional resources provided by the author

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

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