Rule 15. Depositions

(a) When Taken. If it appears that a prospective witness may be unable to attend or prevented from attending a trial or hearing, that the witness' testimony is material, and that it is necessary to take the witness's deposition in order to prevent a failure of justice, the court at any time after the filing of an indictment, information, or complaint may upon motion and notice to the parties order that the witness's testimony be taken by deposition and that any designated books, papers, documents, electronically stored information, photographs (including motion pictures and video tapes), or other tangible objects, not privileged, be produced at the same time and place.

(b) Notice of Taking. The party at whose instance a deposition is to be taken shall give to every party reasonable written notice of the time and place for taking the deposition. The notice shall state the name and address of each person to be examined. On motion of a party upon whom the notice is served, the court for cause shown may extend or shorten the time.

(c) Defendant's Counsel. If a defendant is without counsel the court shall advise the defendant of the defendant's right and assign counsel to represent the defendant pursuant to Rule 44.

(d) How Taken. A deposition shall be taken in the manner provided in civil actions. The court at the request of a defendant may direct that a deposition be taken on written interrogatories in the manner provided in civil actions.

(e) Use. At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used if the court finds that the witness is dead; or that the witness is out of the State of Maine, unless the court finds that the absence of the witness was procured by the party offering the deposition; or that the witness is unable to attend or testify because of sickness or infirmity; or that the party offering the deposition has been unable to procure the attendance of the witness by subpoena. Any deposition may also be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. If only a part of a deposition is offered in evidence by a party, an adverse party may require the party offering part of a deposition to offer all of it that is relevant to the part offered and any party may offer other parts.

(f) Objections to Admissibility. Objections to receiving in evidence a deposition or part thereof may be made as provided in civil actions.

(g) At the Instance of the State or Witness. The following additional requirements shall apply if the deposition is taken at the instance of the State or witness. The officer having custody of a defendant shall be notified of the time and place set for the examination, shall produce the defendant at the examination, and shall keep the defendant in the presence of the witness during the examination. A defendant not in custody shall be given notice and shall have the right to be present at the examination.

Committee Notes

Advisory Note – July 2015 Rule 15(a) is amended to add to the list of tangible objects "electronically stored information" and "photographs (including motion pictures and video tapes)" in light of M.R.U. Crim. P. 16(a)(2)(F) and 16A(b)(1). The rule is also amended to correct a clerical error in the possessive "witness's."

Committee Advisory Note [December 2014] The Rule parallels the content of Rule 15 of the Maine Rules of Criminal Procedure but differs in the following respects. First, in subdivision (a) the word "other" is added after the word "or" and before the word "tangible" to enhance clarity. Second, in subdivision (g) 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—1978 [M.R. Crim. P. 15(a).] Rule 15(a) is amended to make it possible to take the deposition of a material witness under appropriate circumstances after complaint has been filed in the District Court. There have been instances in which serious crimes have been committed against transients who will not be available at the time of trial and whose testimony cannot presently be preserved by deposition until after an indictment has been returned. The amendment solves this problem.

Advisory Committee Note—1989 [M.R. Crim. P. 15(a) and (c).] The last two sentences of Rule 15(a) have been transferred to Rude 46(g) because they deal with the case of a material witness who is detained for failure to make bail. It authorizes release of the witness upon the taking of the witness's deposition.

Advisory Committee Note—2003 [M.R. Crim. P. 15(c) and (g).] The amendment deletes from both subdivisions (c) and (g) the provisions allowing for or requiring a court to direct that payment of "expenses of travel and subsistence for attendance" at a deposition relative to either a defendant or a defendant's attorney be borne by the "county in which the case is pending." In 1975 the 107 th Legislature provided for state financing of court expenses rather than the counties. See P.L. 1975, ch. 383. Today, payment of expenses incurred by court-appointed counsel in the context of a deposition, including travel and subsistence for attendance, are addressed by way of administrative order of the Supreme Judicial Court. See Fee Schedule for Court-Appointed Counsel in All Courts, Admin. Order M.S.J.C. (adopted effective July 1, 2000) and its addendum (adopted effective July 1, 2000). Expenses of travel and subsistence for attendance at a criminal deposition incurred either by private counsel or by a defendant are neither addressed by administrative order nor by statute at the present time.