Rule 16. Discovery by the Defendant

(a) Automatic Discovery.

(1) Scope of Automatic Discovery . The attorney for the State shall provide as automatic discovery all matters set forth in this subdivision that are within the possession or control of the attorney for the State. The obligation of the attorney for the State 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 who, with reference to a particular case, has reported to the office of the attorney for the State.

(2) Duty of the Attorney for the State . The attorney for the State shall provide the following to the defendant:

(A) The police report(s) and any other documents used by the prosecutor in deciding to charge the defendant.

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

(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.

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

(D) A statement describing any matter or information known to the attorney for the State that may not be known to the defendant and that tends to create a reasonable doubt of the defendant's guilt as to the crime charged.

(E) A copy of any notification provided to the court by the attorney for the State pursuant to Rule 6(e) or (h) that pertains to the case against the defendant.

(F) Any books, papers, documents, electronically stored information, photographs (including motion pictures and video tapes), tangible objects, buildings or places, or copies or portions thereof, that the attorney for the State intends to use as evidence in any proceeding or that were obtained or belong to the defendant.

(G) 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.

(H) The names, dates of birth, and, except as otherwise provided by 17-A M.R.S. § 1176(4) relative to alleged victims, the addresses of the witnesses whom the State intends to call in any proceeding. The fact that a listed witness is not called shall not be commented upon at trial.

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

(3) Exception: Work Product . The attorney for the State is not required to disclose legal research or 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) Manner of Providing Automatic Discovery . With respect to written materials, except as otherwise provided in subdivision (b)(1), the attorney for the State shall provide copies thereof. With respect to tangible objects, the attorney for the State shall allow the defendant at any reasonable time and in any reasonable manner to inspect, photograph, or have reasonable tests made. With respect to audio, video, motion pictures, photographic evidence, or electronically stored information, the attorney for the State shall disclose the existence of such evidence with automatic discovery and, upon the request of the defendant and where practicable, shall provide the defendant an opportunity to obtain an electronic copy, at any reasonable time and in any reasonable manner. When the attorney for the State is unable to provide the defendant an opportunity to obtain an electronic copy of audio, video, motion pictures, photographic evidence, or electronically stored information because the technology makes such provision impracticable, or when such copying is barred, for example, as controlled by 15 M.R.S. § 1121 relative to sexually explicit material, the attorney for the State shall provide the defendant a reasonable opportunity to review the audio, video, motion pictures, photographic evidence, or electronically stored information.

(b) Time for Providing Automatic Discovery.

(1) At Initial Appearance on a Class A, B, or C Charge or Arraignment on a Class D or E Charge. The attorney for the State shall produce and allow the defendant to review the information described in subdivision (a)(2)(A).

(2) After a Defendant has entered a "Not Guilty" Plea to a Class D or E Crime. In the manner dictated by subdivision (a)(4), the attorney for the State shall provide the information described in subdivision (a)(2)(B) through (I) within 7 days after the arraignment or entry of a written plea of "not guilty."

(3) When a Dispositional Conference is to Occur Before Indictment for a Class A, B, or C Crime . In the manner dictated by subdivision (a)(4), the attorney for the State shall provide the information described in subdivision

(a) (2)(B) through (I) no later than 14 days before any dispositional conference that occurs before indictment.

(4) At Arraignment on a Class A, B, or C Crime. In the manner dictated by subparagraph (a)(4), the attorney for the State shall provide the information described in subdivision (a)(2)(B) through (I) at arraignment.

(5) Continuing Duty to Disclose . If additional material that would have been furnished to the defendant as automatic discovery comes within the possession or control of the attorney for the State after the timeframes listed in subdivision (b)(1)-(4), the attorney for the State shall so inform the defendant within 14 days thereafter.

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

(7) Defendant's Obligation . Promptly after becoming aware of any material that the defendant wishes to review in order to prepare a defense, and that should have but has not yet been provided as automatic discovery pursuant to this Rule, the defendant must make a written request to the State for the material. The State must respond to the request, in writing, within 14 days.

(c) Discovery Upon Request

(1) Scope and Timing of Request . Except as to materials the State is required to provide as automatic discovery pursuant to subparagraph (a)(2) or work product as defined in subparagraph (a)(3), a defendant may make a written request to have the State provide any other books, papers, documents, electronically stored information, photographs (including motion pictures and videotapes), or copies or portions thereof, or tangible objects, or access to buildings or places, that are material and relevant to the preparation of the defense.

(2) Response by the Attorney for the State . Upon receipt of a written request from the defendant pursuant to subdivision (c)(1), the attorney for the State shall, within a reasonable time, provide a written response to the defendant that:

(A) provides the requested material, in the manner dictated by subdivision (a)(4);

(B) notifies the defendant that the requested material will be provided as soon as it can reasonably be obtained by the State;

(C) notifies the defendant that the requested material is not within the possession or control of the State; or

(D) notifies the defendant that the State objects to the request. If additional material that would have been furnished to the defendant under this subdivision comes within the possession or control of the attorney for the State after the defendant has had access to similar materials, the attorney for the State shall so inform the defendant within 14 days thereafter.

(d) Discovery Pursuant to Court Order .

(1) Bill of Particulars . A motion for a bill of particulars may be entertained and granted by the court if defense counsel or the unrepresented defendant satisfies the court that

(A) Discovery has been completed under this Rule; and

(B) That such discovery is inadequate to establish a record upon which to plead double jeopardy, or to prepare an effective defense because further information is necessary respecting the charge stated in the charging instrument, or to avoid unfair prejudice. The bill of particulars may be amended at any time subject to such conditions as justice requires.

(2) Motions for Discovery Necessitated by Subparagraph (c)(2)(D) . If the State notifies the defendant that it objects to his or her written request for additional discovery, the defendant may file a motion with the court, asking that the court order the State to provide any books, papers, documents, electronically stored information, photographs (including motion pictures and videotapes), or copies or portions thereof, or tangible objects, or access to buildings or places, that the defendant has requested and that are material and relevant to the preparation of the defense. The State shall respond to any such motion within 7 days. Thereafter, the court may discuss the motion at a dispositional conference and may rule on the motion with or without a hearing.

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

(4) 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.

(5) Specific Discovery Order in Certain Cases. In all homicide cases and, by order of the court, in other cases involving forensic materials, a specific discovery order will be issued that will control the discovery process.

(e) Sanctions for Noncompliance. 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 or without prejudice.

Committee Notes

Advisory Note – June 2016 Rule 16(a)(2)(E) is amended to include the duty of the attorney for the State who has made a disclosure to "any government personnel not otherwise addressed in . . . [subdivision (e)] or subdivision (h)" pursuant to M.R.U. Crim. P. 6(e)(3), to provide a copy of any notification that was provided to the court as required by the final paragraph of Rule 6(e). This change was unintentionally omitted when Rule 6(e) was amended, effective September 1, 2015. (2015 Me. Rules 16).

Committee Advisory Note [December 2014] The Rule bears little resemblance to Rule 16 of the Maine Rules of Criminal Procedure both in terms of form and content. It differs in the following respects. First, throughout subdivisions (a), (b), (c), (d), and (e) when appearing in the term, "attorney for the State" the "s" in the word "state" is capitalized. See

Committee Advisory Note [December 2014] to M.R.U. Crim. P. 3(d) and (f). In these same subdivisions the "s" in the stand-alone word "State" is capitalized because in the context in which it is used it refers either to a governmental actor or a party. Second, in subdivision (a)(1), and (2)(B) and (D) the word "that" replaces the word "which" to reflect modern usage. Third, subdivision (a)(1) now addresses the general obligation of an attorney for the State to provide automatically all matters contained in new paragraph (2) that are in his or her "possession or control." Its content carries over a portion of subdivision (b)(1) of the Maine Rules of Criminal Procedure. Fourth, new subdivision (a)(2), like subdivision (a)(1) of the Maine Rules of Criminal Procedure, addresses all matters that are automatically discoverable. Paragraph (2)(A) is new and requires the attorney for the State to automatically provide "[t]he police report(s) and other documents used by the prosecutor in deciding to charge the defendant." It is the information now required to be produced for the defendant's review at the initial appearance on a felony charge or at the arraignment on a misdemeanor charge. See subdivision (b)(1). Subdivisions (a)(3) and (b)(5) of the Maine Rules of Criminal Procedure are not carried forward into the new Rule. New subparagraphs (B), (C), (D), and (E) of paragraph (2) are carried over from subdivision (a)(1)(A), (B), (C), and (D) of the Maine Rules of Criminal Procedure. New subparagraphs (F), (G), (H), and (I) of paragraph (2) contain matters that, under the Maine Rules of Criminal Procedure, are discoverable only upon the written request of the defendant, but are now required to be automatically provided. See M.R. Crim. P. 16(b)(2)(A)-(E). However, new subparagraphs (F) and (H) are carried over with changes. As to subparagraph (F), that portion of Rule 16(b)(2)(A) of the Maine Rules of Criminal Procedure that includes materials that "are material to the preparation of the defense" is intentionally left behind, remaining subject to written request pursuant to new subdivision (c)(1). Further, subparagraph (F) now includes the words "electronically stored information" for purposes of clarity and completeness. As to subparagraph (H), its content combines that of subdivision (b)(2)(C) and (E) of the Maine Rules of Criminal Procedure as well as the last sentence in paragraph (2) of the Maine Rules of Criminal Procedure to enhance clarity and readability. Fifth, subdivision (a)(3) carries over the content of subdivision (b)(3) of the Maine Rules of Criminal Procedure. Sixth, subdivision (a)(4) has no equivalent in Rule 16 of the Maine Rules of Criminal Procedure. It addresses with specificity the manner of providing automatic discovery by the attorney for the State. The manner varies depending upon the nature of the item. Written materials, except as otherwise provided in new subdivision (b)(1) regarding initial appearance on a felony or arraignment on a misdemeanor, must be copied and then furnished. Copies of written materials may be provided in electronic format, for example, disk, thumb drive, or other secure electronic or digital product, to a willing recipient. Tangible objects must be made available to the defendant "at any reasonable time and in any reasonable manner to inspect, photograph, or have reasonable tests made." The existence of audio, video, motion pictures, photographic evidence, or electronically stored information must be disclosed to the defendant with automatic discovery. At the request of the defendant, where practicable, the attorney for the State must provide the defendant "an opportunity to obtain an electronic copy, at any reasonable time and in any reasonable manner." In circumstances in which the attorney for the State is unable to provide the defendant with that opportunity "because the technology makes such provision impracticable" or when copying is not legally permitted, the attorney for the State must then provide the defendant "a reasonable opportunity" to review such evidence. Seventh, subdivision (b) has no equivalent in Rule 16 of the Maine Rules of Criminal Procedure other than paragraph (6) addressing a protective order. The first five paragraphs explain the time for providing automatic discovery by the attorney for the State. The "within a reasonable time" standard in subdivision (a)(1) of the Maine Rules of Criminal Procedure is not carried forward. Paragraph (1) requires that, at the time of initial appearance on a felony or arraignment on a misdemeanor, the attorney for the State produce and allow the defendant to review the "police report(s) and other documents used by the prosecutor in deciding to charge the defendant." Paragraph (2) requires that within 7 days after arraignment or entry of a written plea of "not guilty" to a misdemeanor crime the attorney for the State provide all the information described in subdivision (a)(2), other than in subparagraph (A), in the manner dictated by subdivision (a)(4). Paragraph (3) requires that, in the event a dispositional conference is to take place before indictment for a felony, the attorney for the State provide all the information described in subdivision (a)(2), other than in subparagraph (A), "no later than 14 days before any dispositional conference that occurs before indictment" in the manner dictated by subdivision (a)(4). Paragraph (4) requires that the attorney for the State provide all the information described in subdivision (a)(2), other than in subparagraph (A), at the time of arraignment on a felony in the manner dictated by subdivision (a)(4). Paragraph (5) requires that, after timely discovery as required by subdivision (b)(1)-(4) the attorney for the State provide any additional automatic discovery material that comes within his or her "possession or control." This requirement parallels that in subdivisions (a)(2) and (b)(4) of the Maine Rules of Criminal Procedure. However, disclosure now must be made to the defendant "within 14 days thereafter." Paragraph (7) has no counterpart in Rule 16 of the Maine Rules of Criminal Procedure. It imposes upon a defendant, who in fact becomes aware of the existence of any automatic discovery material that the defendant wishes to review in order to prepare a defense and that should have but has not yet been provided by the attorney for the State, the affirmative obligation to "make a written request to the State for the material." The State, upon receipt of such written request, "must respond to the request, in writing, within 14 days." Eighth, subdivision (c) addresses that portion of subdivision (b)(2)(A) of the Maine Rules of Criminal Procedure, not included within new subdivision (a)(2)(F), related to the listed items that "are material to the preparation of the defense." Subdivision (c)(1) permits a defendant to make a written request to have the State provide, other than materials the State is required by subdivision (a)(2) to automatically provide or work product, the listed items that "are material and relevant to the preparation of the defense." The word "material" in this context is not to be construed to mean only so-called " Brady material." Brady v. Maryland, 373 U.S. 83 (1963). Instead, "material" is used in its common dictionary sense of "necessary," keeping in mind the purposed and scope of discovery. See generally, Glassman, Maine Practice: Rules of Criminal Procedure with Commentaries , § 16.2 at 136 (1967). The word "relevant" is newly added and helps guard against fishing expeditions. Subdivision (c)(2) requires that the attorney for the State respond to a defendant's written request with a written response "within a reasonable time." Paragraph (2) lists 4 options regarding the State's response—namely, provide the requested material; notify the defendant that the requested material will be provided as soon as it can reasonably be obtained; notify the defendant that the requested material is not within the State's possession or control; or notify the defendant that the State objects to the request. Subdivision (c)(2) also includes a continuing duty to notify the defendant of any additional similar materials within 14 days of them coming within the State's possession or control. Ninth, subdivision (d), paragraphs (3) and (4) are the same in content as subdivision (c), paragraphs (2) and (3), respectively, of the Maine Rules of Criminal Procedure. New paragraph (1) of subdivision (d) parallels the content of paragraph (1) of subdivision (c) of the Maine Rules of Criminal Procedure but makes clear that a motion for a bill of particulars "may be entertained and granted by the court" only if the defendant "satisfies the court" both that "Discovery has been completed under this Rule" and "That such discovery is inadequate to establish a record upon which to plead double jeopardy, or to prepare an effective defense because further information is necessary respecting the charge stated in the charging instrument, or to avoid unfair prejudice." This latter requirement, like its parallel language in paragraph (1) of the Maine Rules of Criminal Procedure, stems from Maine case law. See, e.g., State v. Wedge, 322 A.2d 328, 330-31 (Me. 1974). New paragraph (1), like paragraph (1) of the Maine Rules of Criminal Procedure, provides that "[t]he bill of particulars may be amended at any time subject to such conditions as justice requires." New paragraph (2) of subdivision (d) has no counterpart in subdivision (c) of the Maine Rules of Criminal Procedure. It provides that in the event the attorney for the State notifies the defendant in writing that the State objects to the defendant's written discovery request pursuant to subdivision (c)(2)(D), the defendant may file a motion seeking a court order to obtain the additional discovery sought that is "material and relevant to the preparation of the defense." The State has 7 days within which to respond. The court may "discuss the motion at a dispositional conference [under Rule 18] and may rule on the motion with or without a hearing." New paragraph (5) of subdivision (d) has no counterpart in subdivision (c) of the Maine Rules of Criminal Procedure. Paragraph (5) requires that discovery in all homicide cases and, by order of the court, in cases involving forensic materials, be by way of a specific discovery order that will control the discovery process rather than the Rule's provisions. Tenth, subdivision (e) parallels the content of subdivision (d) addressing sanctions for noncompliance, but as regards the sanction of "dismissing charges," adds the alternative of "without" prejudice to the existing "with" prejudice for clarity and completeness.

[Advisory Notes to former Maine Rules of Criminal Procedure]

Advisory Committee Note—1978 [M.R. Crim. P. 16.] Former Rule 16 dealt with both discovery by the defendant and discovery by the State. Former Rule 16(a) provided a certain amount of limited discovery by the defendant pursuant to court order upon the defendant's motion. Former Rule 16(b) provided discovery by the State of certain aspects of the defendant's alibi defense. Discovery by the defendant is now governed by Rule l6; discovery by the State is now governed by Rule 16A. The overriding purpose of the amendment is to enlarge, clarify and simplify discovery procedures so as to make the criminal trial a fairer search for truth. New Rule 16 somewhat enlarges the scope of discoverable material. But the more important purpose of the amendment is to distinguish those matters which should continue to be discoverable only by court order from those matters which can and should be furnished by the prosecuting attorney automatically or upon request. Automatic discovery or discovery upon request reflects the modern trend. Standards 1.4 of the ABA Standards Relating to Discovery , and Procedure Before Trial endorses automatic discovery, urging the court to "encourage effective and timely discovery conducted voluntarily and informally between counsel." Federal Rule of Criminal Procedure 16 was amended effective December 1, 1975 to provide for reciprocal discovery upon request without the necessity of court order. The Uniform Rules of Criminal Procedure endorse both automatic discovery and discovery upon request. Informal discovery cannot be expected to work in timely and effective fashion unless counsel are given guidance as to what matters are discoverable and upon what basis. Rule 16 is amended to separately specify those matters which should be furnished automatically (subdivision (a)), those matters which should be furnished upon request (subdivision (b)) and those matters which should be furnished pursuant to court order (subdivision (c)). Subdivision (a) is derived from Uniform Rule of Criminal Procedure 422(a). It is designed to eliminate wasted time and effort occasioned by defense counsel's attempts to discover matters not in existence. Subdivision (a)(1)(A) does not require a summary but only a list of the evidentiary matters. Subdivision (a)(1)(A)(i) purposely avoids using the term "interception" of a wire or oral communication because of the term's narrow statutory definition. See 15 M.R.S. § 709(4). Subdivision (a)(1)(C) implements the constitutional standard enunciated in Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) and United States v. Agurs , 427 U.S. 97, 96 S. Ct. 2342, 49 L. Ed. 2d 342 (1976). It obviates the need for defense counsel to go on a fishing expedition for " Brady material." Subdivision (b) is derived from F.R.Cr.P. 16(a) and Uniform Rule 421. The matters discoverable under subdivision (b)(2) were previously discoverable under Criminal Rule 16 only by court order. Subdivision (b) follows the lead of the ABA Standards, Federal Rule 16 and the Uniform Rules of Criminal Procedure in dispensing with the need for a court order. Subdivision (c)(1)(B) retains the necessity for a court order to discover the written or recorded statements of witnesses. Subdivision (c)(1)(C) provides that in appropriate circumstances the attorney for the State may be required to furnish to the defendant a statement, usually from the State Bureau of Identification, listing the witness's record of prior criminal convictions. This provision is subject to two requirements imposed by subdivision (c)(1). First, since the record must be material to the preparation of the defense, the attorney for the State may show that use of the record would be barred by Rule 609 of the Maine Rules of Evidence. Second, since the request must be reasonable, if the record is not within the possession, custody or control of the attorney for the State, the request may not be considered reasonable. In State v. Toppi , 275 A.2d 805, 812, n.6 (Me. 1971), the Law Court outlined certain circumstances in which the attorney for the State would be required to obtain and furnish a record not in the possession of the State. On the other hand, the attorney for the State should not be routinely required to obtain and furnish the record if the defendant may readily obtain it by subpoena. See State v. Burnham, 350 A.2d 577 (Me. 1976), construing former Rule 16(a). Given the limitations on access to criminal history record information contained in 16 M.R.S. §§ 601-607, such access may prove difficult. Thus, the appropriateness of requiring the attorney for the State to obtain and furnish the record is left to the sound discretion of the presiding justice. Because 16 M.R.S. § 606 provides a procedure for discovery by the defendant of his own criminal record, no discovery provision need be made in these rules. Subdivision (c)(2) contains the provisions governing a bill of particulars which were previously found in Criminal Rule 7(f). The transfer was made in order to emphasize the discovery function of a bill of particulars. In State v. Wedge, 322 A.2d 328, 330-31 (Me. 1974), the Law Court defined the function of a bill of particulars by quoting with approval the following language from United States v. Leach , 427 F.2d 1107, 1110 (lst Cit. 1970) and adding its own emphasis: The function of a bill of particulars is to protect against jeopardy, provide the accused with sufficient detail of the charges against him where necessary to the preparation of his defense and to avoid prejudicial surprise at trial. (Emphasis added.) Cf. State v. Benner, 284 A.2d 91, 98 (Me. 1971). Subdivision (c)(2) makes clear that a bill of particulars should not be granted unless it remains necessary once the other discovery remedies provided by this rule have been exhausted. Subdivision (c)(3) transfers provisions governing the discovery of transcripts of testimony of witnesses before a grand jury to Rule 6(e). This transfer is appropriate because Rule 6(e) provides for the secrecy of grand jury proceedings. No provision for discovery from the attorney for the State of the criminal records of prospective jurors is made at this time. The Advisory Committee strongly believes that if the attorney for the State obtains these criminal records for screening jurors, then they should be shared with defense counsel. The Committee doubts the utility of these records in selecting an impartial jury particularly as measured against the costs to the right of privacy of prospective jurors. But whatever utility the attorney for the State finds in these records should be equalized with the defense. The Committee would prefer to see settled the question of the propriety of this practice by an attorney for the State before this burden on the jurors' privacy is extended. Subdivision (d) is derived from Uniform Rule 421(e). Naturally, the sanction of dismissal with prejudice should be reserved for extreme cases.

Advisory Committee Note—1983 [M.R. Crim. P. 16(b)(2).] The amendment is designed to ensure timely disclosure to the defense of the identity and location of the State's trial experts expected to be called in the State's case-in-chief.

Advisory Committee Note—1985 [M.R. Crim. P. 16(a)(1).] See Note to Rule 6(h). [Note to Amendment to Rule 6(h): Proposed section (h) provides for limited disclosure of information or exhibits for certain law enforcement purposes. This section does not supersede the requirement of Rule 6(e) for disclosure of a grand jury transcript. This section is not intended to derogate from the right of the defendant to request discovery pursuant to Rule 16(b) of whatever reports or statements are made by the person to whom disclosure is made. To implement this right a contemporaneous amendment is made to Rule 16(a) to require the attorney for the state to notify the defendant of the contents of the disclosure order.]

Advisory Committee Note—1986 [M.R. Crim. P. 16(b)(2)(C).] The amendment expands the scope of discovery to include pretrial proceedings, such as motions to suppress. [M.R. Crim. P. 16(c)(3).] The amendment makes clear that discovery of transcripts of testimony of grand jury witnesses is governed by Rule 6 generally. [M.R. Crim. P. 16(c)(4).] Rule 16(c)(4) is amended to remedy the situation where an expert witness does not provide a written report and discovery under Rule 16(b) is thereby frustrated.

Advisory Committee Note—1987 [M.R. Crim. P. 16(b)(2)(A).] This amendment is needed for consistency with similar amendments to Rules 16(b)(2)(C) and 16A(c) and (d), effective February 15, 1986.

Advisory Committee Note—1988 [M.R. Crim. P. 16(c)(1).] The amendment reparagraphs Rule 16(c)(1) to make clear that the language following Paragraph (C) applies to all of Rule 16(c)(1).

Advisory Committee Note—1991 [M.R. Crim. P. 16.] The proposed amendment was prompted by a letter to the Committee from the Chief Justice of the Superior Court, which read in part: The Superior Court has been flooded with motions for discovery in almost every criminal ease filed for various reasons. I would appreciate the Criminal Rules Committee considering the possibility of amending the rules. . . . [to] eliminate the necessity of routine filings of discovery motions. There obviously are some situations in which discovery motions are necessary . . . , but the vast majority of these motions are filed routinely just to 'protect the record.' (Letter from Chief Justice Brody of February 13, 1990) The proposed amendment shifts the discovery of the state's witnesses from the category of court-ordered discovery to the category of requested discovery. This change eliminates routine defense motions, and necessitates a motion only when the attorney for the state resists discovery and seeks a protective order. Supplying the date of birth of a prospective witness allows defense counsel to obtain the person's criminal record history.

Advisory Note – 2009 M.R.Crim. P. 16(a)(1)(D). Subparagraph (D) is amended to reflect the 1997 amendment to Rule 6(h). See Me.Rptr. 692-698 A.2d LXVII, LXXXILXXXII. Specifically, in 1997 Rule 6(h) was amended so as to eliminate the court-order requirement regarding a prosecutor's disclosure to law enforcement personnel of matters occurring before the grand jury and in its stead to provide for after-the-fact written notification to the Superior Court by the prosecutor as to whom disclosure was made and certification as to advising such person or persons of the obligation of secrecy under Rule 6. Subparagraph (D) is amended to require that a copy of any such notification that pertains to the case against the defendant be forwarded to the defendant. M.R.Crim.P. 16(b)(2)(C). P.L. 2007, ch. 475, § 13 repealed and replaced 17-A M.R.S. § 1176, effective June 30, 2008, relating to confidentiality of victims records. New subsection 4 of section 1176 provides: 4. Limited disclosure pursuant to discovery. Notwithstanding the provisions of the Maine Rules of Criminal Procedure, Rule 16, an attorney for the State may withhold the current address or location of a victim from a defendant, or the attorney or authorized agent of the defendant, if the attorney for the State has a good faith belief that such disclosure may compromise the safety of the victim. The amendment to Rule 16(b)(2)(C) expressly incorporates the new statutory exception.

Advisory Note – November 2011 The amendment modifies paragraph (1) of subdivision (b) of Rule 16 by providing notice of the existence of the new statutorily-imposed limitations on the attorney for the state regarding a defendant's access to sexually explicit material in any criminal proceeding pursuant to 15 M.R.S. § 1121, enacted by P.L. 2011, ch. 39, § 1, effective September 28, 2011. "Sexually explicit material" is defined in 15 M.R.S. § 1121(1) to mean "the property or material described in Title 17-A, chapter 12."