Rule 12. Pleadings and Motions Before Trial; Defenses and Objections

(a) Pleadings and Motions. Pleadings in criminal proceedings shall be the complaint, the indictment, and the information, and the pleas of not guilty, not criminally responsible by reason of insanity, guilty, and nolo contendere. All other pleas and demurrers and motions to quash are abolished, and defenses and objections raised before trial that heretofore would have been raised by one or more of such other pleas or pleadings shall be raised only by motion to dismiss or to grant appropriate relief, as provided in these Rules.

(b) Motion Raising Defenses and Objections.

(1) Defenses and Objections That May Be Raised. Any defense or objection that is capable of determination without the trial of the general issue may be raised before trial by motion.

(2) Defenses and Objections That Must Be Raised . Defenses and objections based on defects in the institution of the prosecution or in the indictment, information, or complaint, other than that it fails to show jurisdiction in the court, may be raised only by motion before trial. The motion shall include all such defenses and objections available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver. Lack of jurisdiction shall be noticed and acted upon by the court at any time during pendency of the proceeding.

(3) Time of Making Motions and Filing and Service of Motions.

(A) Motions to dismiss, motions relating to joinder of offenses, motions seeking discovery pursuant to court order under Rules 16 and 16A, motions to suppress evidence, and other motions relating to the admissibility of evidence shall be served upon the opposing party, but not filed with the court, at least 7 days before the date set for the dispositional conference under Rule 18. If the matter is not resolved at the dispositional conference, the motions shall be filed with the court no later than the next court day following the dispositional conference. If, as a result of the dispositional conference, the party filing motions determines the need to alter or amend a motion previously served, the amended motion must be served upon the opposing party pursuant to Rule 49.

(B) All other motions shall be filed with the court promptly after grounds for the motion arise.

(4) Hearing on Motion . A motion before trial raising defenses or objections shall be determined before trial unless the court orders that it be deferred for determination at the trial of the general issue. All issues of fact shall be determined by the court with or without a jury or on affidavits or in such other manner as the court may direct.

(5) Effect of Determination . If a motion is determined adversely to the defendant, the defendant shall be permitted to plead if the defendant has not previously pleaded. A plea previously entered shall stand. If the motion is based upon a defect that may be cured by amendment of the complaint or information, the court may deny the motion and order that the complaint or information be amended. If the court grants a motion based on a defect in the institution of the prosecution or in the indictment, information, or complaint the defendant shall be discharged.

(c) Motion In Limine. The defendant or the State may make a pretrial motion requesting a pretrial ruling on the admissibility of evidence at trial or on other matters relating to the conduct of the trial no later than 7 days before the date set for jury selection. The court may rule on the motion or continue it for a ruling at trial. In determining whether to rule on the motion or to continue it, the court should consider the importance of the issue presented, the desirability that it be resolved before trial, and the appropriateness of having the ruling made by the justice or judge who will preside at trial. For good cause shown the justice or judge presiding at trial may change a ruling made in limine.

Committee Notes

Committee Advisory Note [December 2014] The Rule parallels the content of Rule 12 of the Maine Rules of Criminal Procedure but differs in the following respects. First, in subdivisions (a), (b)(1) and (2) [headings], and (b)(5) the word "that" replaces the word "which" to reflect modern usage. Second, subdivision (b)(2) of the Maine Rules of Criminal procedure provides that "lack of [subject-matter] jurisdiction" is a defect that "shall be noticed and acted upon by the court at any time during pendency of the proceeding." Included in this defect category is the failure of a charging instrument to allege all the necessary elements of the crime (i.e., "to charge an offense"). See also M.R.U. Crim. P. 34 and 1 Cluchey & Seitzinger, Maine Criminal Practice § 12.4 IV-60 (Gardiner ed. 1995). Until recently the case law of Maine has repeatedly stated that this failure affects the trial court's adjudicatory authority to hear the matter. See State v. Lavasseur, 538 A.2d 764, 766 (Me. 1988); see also 1 Cluchey & Seitzinger, Maine Criminal Practice § 12.4 IV-61 (Gardiner ed. 1995). However, in 2004 the Law Court noted that this case-law characterization is anomalous and is inconsistent with United States Supreme Court precedents, citing United States v. Cotton, 535 U.S. 625, 630 (2002), and United States v. Williams, 341 U.S. 58, 66 (1951). See Landmark Realty v. Leasure , 2004 ME 85, ¶ 7 n.1, 853 A.2d 749. On April 25, 2014, The Supreme Court of the United States, following a suggestion made by the Federal Advisory Committee that the Cotton holding supported the change, adopted an amendment to Rule 12(b) of the Federal Rules of Criminal Procedure requiring defendants to raise before trial any objection that the charging instrument fails to state an offense. See Fed. R. Crim. P. 12(b)(3)(B)(v), effective December 1, 2004. Subdivision (b)(2) is similarly amended. Third, the heading in subdivision (b)(3) is changed from " Time of Making Motion " to " Time of Making Motions and Filings and Service of Motions " to more accurately reflect its content. Fourth, in subdivision (b)(3) the procedure is markedly different because of the existence of the dispositional conference pursuant to Rule 18. The modified procedure now distinguishes between the listed motions that must not be filed with the court unless the case remains unresolved following the dispositional conference from those unlisted motions that must be filed with the court prior to the dispositional conference if the grounds for the motion arise. The listed motions not to be filed with the court until the dispositional conference must nonetheless be served upon the opposing party at least 7 days before the date set for the dispositional conference. In the event the case is not resolved at the dispositional conference the motion earlier served on the opposing party must be filed with the court no later than the next court day following the conference. A party may alter or amend a motion previously served upon the opposing party before filing it with the court if the party determines such to be necessary as a result of the dispositional conference. Each altered or amended motion must be served upon the opposing party pursuant to Rule 49. Fifth, subdivision (c) imposes a timing requirement on the making of a motion in limine. Such must be made no later than 7 days before the date set for jury selection. Sixth, in subdivision (c) the letter "s" in the word "state" is capitalized because the word is referring to the "State" as a party.

[Advisory Notes to former Maine Rules of Criminal Procedure]

Advisory Committee Note—1975 [M.R. Crim. P. 12(a) and (b)(2).] This amendment is to implement Maine Laws, 1975, Chapter 139.

Advisory Committee Note—1981 [M.R. Crim. P. 12(c).] A motion in limine can be a valuable tool in the pretrial shaping of the trial. See Maine Evidence —1980 Supplement, § 103.7. The Federal Rules contain such a provision, F.R.Cr.P. 12(b), although it contains a good deal more complexity than the provision proposed here. See United States v. Barletta , 644 F.2d 50 (lst Cir. 1981). The purpose of this provision is simply to authorize the motion, without binding the court to a pretrial ruling upon it. For example, the court may decline to make a pretrial ruing because the motion is filed so close to the eve of trial that the justice presiding at trial should rule upon it. The provision makes clear that the justice presiding at trial may change the pretrial ruling in appropriate circumstances. In State v. O'Neal, 432 A.2d 1278, 1282, n.8 (Me. 1981), this power was recognized by the trial justice (although not exercised). If the pretrial ruling is changed, the court should consider granting a continuance to avoid prejudice. The provision does not affect the traditional motion to suppress based upon a constitutional violation. It does plug whatever gaps may exist between Rule 12 and Rule 41. Cf. State v. Perkins , 275 A.2d 586 (Me. 1971), with State v. Baker , 423 A.2d 227 (Me. 1980).

Advisory Committee Note—1982 [M.R. Crim. P. 12(b)(2) and (3).] The defendant is given until 21 days after arraignment to file any pretrial motions. District Court Rule 12(b)(3). A parallel amendment is made to Criminal Rule 12(b)(3). The purposes of both amendments are to standardize the practice regarding filing of motions, to avoid the practice of filing motions close to the trial date as an excuse to delay trial and to end the uncertainty regarding which motions must be filed before arraignment. RULES 13 AND 14. [RESERVED]