Rule 16A. Discovery by the State

(a) Automatic Discovery. Notice of Intention to Introduce Expert Testimony as to the Defendant's Mental State. If a defendant intends to introduce expert testimony as to the defendant's mental state, the defendant shall, at least 7 days before the date set for the dispositional conference under Rule 18 or at such later time as the court may direct, serve a notice of such intention upon the attorney for the State and file a copy with the clerk of the Unified Criminal Docket. Mental state testimony includes culpable state of mind, mental disease or defect, belief as to self-defense, or any other mental state or condition of the defendant bearing upon the issue of criminal liability. The court may for cause shown allow late filing of the notice; if it does so, it may grant additional time to the parties to prepare for trial or may make such further order as may be appropriate. The notice is not admissible against the defendant.

(b) Discovery Upon Request.

(1) Dispositional or Trial Documents and Tangible Objects . Upon the written request of the attorney for the State, the defendant shall, at least 14 days before the date set for the dispositional conference under Rule18, permit the attorney for the State to inspect and copy or photograph or have reasonable tests made upon any book, paper, document, electronically stored information, photograph (including a motion picture and videotape), or tangible object that is within the defendant's possession or control and that the defendant intends to introduce as evidence in any proceeding.

(2) Expert Witnesses . Upon the written request of the attorney for the State, the defendant shall, at least 14 days before the date set for the dispositional conference under Rule 18, furnish the following to the attorney for the State:

(A) A statement containing the name and address of any expert witness whom the defendant intends to call in any proceeding; and

(B) A copy of any report or statement of an expert, including a report or results of physical or mental examinations and of scientific tests, experiments, or comparisons, that is within the defendant's possession or control and that the defendant intends to introduce as evidence in any proceeding.

(3) Notice of Alibi . Not later than 14 days before the date set for jury selection, the attorney for the State may serve upon the defendant or the defendant's attorney a demand that the defendant serve a notice of alibi if the defendant intends to rely on such defense at the trial. The demand shall state the time and place that the attorney for the State proposes to establish at the trial as the time and place where the defendant participated in or committed the crime. If such a demand has been served, and if the defendant intends to rely on the defense of alibi, not more than 7 days after service of such demand, the defendant shall serve upon the attorney for the State and file a notice of alibi that states the place where the defendant claims to have been at the time stated in the demand and the names and addresses of the witnesses upon whom the defendant intends to rely to establish such alibi. Within 7 days thereafter, the attorney for the State shall file and serve the names and addresses of the witnesses upon whom the State intends to rely to establish the defendant's presence at the time and place stated in the demand. If the defendant fails to serve and file a notice of alibi after service of a demand, the court may take appropriate action. If the attorney for the State fails to serve and file a notice of witnesses, the court shall order compliance. The fact that a witness's name is on a notice furnished under this subdivision and that the witness is not called shall not be commented upon at trial.

(4) Exception : Work Product . Disclosure shall not be required of legal research or of records, correspondence, reports, or memoranda to the extent they contain the mental impressions, conclusions, opinions, or legal theories of the attorney for the defendant.

(5) Continuing Duty to Disclose . If matter that would have been furnished to the attorney for the State under this subdivision comes within the control of the attorney for the defendant after the attorney for the State has had access to similar matter, the attorney for the defendant shall promptly so inform the attorney for the State.

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

(c) Discovery Pursuant to Court Order.

(1) Order for Preparation of Report by Expert Witness . If an expert witness whom the defendant 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 defendant 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.

(2) Order Permitting Discovery of the Person of the Defendant .

(A) Upon motion and notice the court may order a defendant to

(i) Appear in a line-up;

(ii) Speak for identification by witnesses to a crime;

(iii) Be fingerprinted, palm printed, or foot printed;

(iv) Pose for photographs;

(v) Try on articles of clothing;

(vi) Permit the taking of specimens of material under the defendant's fingernails;

(vii) Permit the taking of samples of the defendant's biological materials, including but not limited to, blood, hair, saliva, fingernail clippings and materials obtainable by swab;

(viii) Provide specimens of the defendant's handwriting; and

(ix) Submit to a reasonable physical or medical inspection of the defendant's body.

(B) Reasonable notice of the time and place of any personal appearance of the defendant required for the foregoing purposes shall be given by the attorney for the State to the defendant and the defendant's attorney. Provision may be made for appearances for such purposes in an order by the court admitting the defendant to bail or providing for the defendant's release.

(C) Definition. For purposes of this Rule, a defendant is a person against whom a criminal pleading has been filed.

(d) Sanctions for Noncompliance. If the defendant fails to comply with this Rule, the court on motion of the attorney for the State 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 defendant to comply; granting the attorney for the State additional time or a continuance; relieving the attorney for the State from making a disclosure required by Rule 16; prohibiting the defendant from introducing specified evidence; and charging the attorney for the defendant with contempt of court.

Committee Notes

Committee Advisory Note [December 2014] The Rule parallels the content of Rule 16A of the Maine Rules of Criminal Procedure but differs in the following respects. First, in subdivision (a), first sentence, the required notice respecting a defendant's intent to introduce expert testimony as to his or her mental state must now be served upon the attorney for the State and a copy filed with the clerk of the Unified Criminal Docket "at least 7 days before the date set for the dispositional conference under Rule 18 or at such later time as the court may direct" rather than "within the time provided for the filing of pretrial motions or at such later time as the court may direct." Second, in subdivisions (a), (b)(1), (2), (3), (5), (c)(2)(B), and (d) the letter "s" in the word "state" is capitalized because the word is used in the term "attorney for the State." See Committee Advisory Note [December 2014] to M.R.U. Crim. P. 3(d) and (f). Third, the heading to paragraph (1) of subdivision (b) is changed from " Documents and Tangible Objects " to " Dispositional or Trial Documents and Tangible Objects " to better identify its new content. Fourth, in subdivision (b)(1) the defendant must comply with the written request of the attorney for the State "at least 14 days before the date set for the dispositional conference under Rule 18" rather than "within a reasonable time." Further, the items specifically identified now include "electronically stored information" and parenthetically as to a photograph, a motion picture and videotape. Finally, the word "that" replaces the word "which" to reflect modern usage. Fifth, in subdivision (b)(2) the notice respecting a defendant's intent to call an expert witness in response to the State's written request must furnish to the attorney for the State the required materials "at least 14 days before the date set for the dispositional conference under Rule 18" rather than "within a reasonable time." Further, the word "that" replaces the word "which" to reflect modern usage. Sixth, in subdivision (b)(3), first sentence, service upon the defendant or the defendant's attorney by the attorney for the State of a demand that the defendant serve a notice of alibi if the defendant intends to rely on such defense at trial must now be made "[n]ot later than 14 days before the date set for jury selection" rather than "10 days before the date set for trial." The change to "14 days" from "10 days" reflects the Court's preference for calculating time periods for rule purposes in increments of 7 rather than increments of 5. That same preference is also reflected in the change to "7 days" from "5 days" in the third and fourth sentences in the same paragraph. Further, the word "that" in the third sentence replaces the word "which" and the word "where" replaces the word "which" to reflect modern usage. Seventh, in subdivision (b)(5) the sentence is rewritten to enhance clarity, and the word "possession" is omitted. Eighth, in subdivision (b)(6) the word "that" replaces the word "which" to reflect modern usage.

[Advisory Notes to former Maine Rules of Criminal Procedure]

Advisory Committee Note—1978 [M.R. Crim. P. 16A.] Subdivision (a) allows the attorney for the State to move the court for an identification order. The order will be granted if an appropriate showing of need is made and the request is reasonable under all the circumstances. The terms and conditions of the court order will provide for appropriate medical safeguards and other reasonable protections of the defendant. Identification procedures without a court order have been upheld when the defendant was in custody pursuant to a lawful arrest. See, e.g. , Cupp v. Murphy , 412 U.S. 291, 93 S. Ct. 2000, 36 L. Ed. 2d 900 (1973) (fingernail scrapings); Davis v. Mississippi , 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969) (fingerprints); Gilbert v. California , 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967) (handwriting); United States v. Wade , 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) (line-up); Gustafson v. Florida , 414 U.S. 260, 94 S. Ct. 488, 38 L. Ed. 2d 456 (1973) (clothing and body surfaces); and Schmerber v. California , 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) (blood samples; exigent circumstances may excuse court order). In order to assure the admissibility of the products of these procedures, some law enforcement officials have undertaken to obtain search warrants for these products. Doubts about the applicability of search warrant procedures have led to puzzling questions and generated a need for greater procedural clarity. The new procedure has three advantages. First, it puts identification procedures on an independent judicial basis, free from questions about the legality of the initial arrest. Indeed, the procedure may be employed whether the prosecution was initiated by arrest or by summons or the defendant has been released on bail. A judicial identification order based on reasonable grounds is valid under the Fourth Amendment. United States v. Dionisio , 410 U.S. 1, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973); United States v. Mara , 410 U.S. 19, 93 S. Ct. 774, 35 L. Ed. 2d 99 (1973); and Davis v. Mississippi , 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969). Second, it replaces the search warrant procedure for defendants with a clear and apposite procedure. Third, it equalizes treatment of bailed and jailed defendants. Subdivision (a) is modeled on the following provisions: Vermont Rule of Criminal Procedure 16.1(a); Sections 3.1 of the ABA Standards Relating to Discovery and Procedure Before Trial ; Rule 434 of the Uniform Rules of Criminal Procedure ; and Article 170 of the Model Code of Pre-Arraignment Procedure . Nothing in subdivision (a) affects identification procedures for suspects who are not defendants. A district judge should assure that the probable cause requirement of Gerstein v. Pugh , 420 U.S. 103 (1975), has been complied with before issuing an identification order. Subdivision (b) is derived from former Rule 16(b), with two important additions. First, the defendant must state in his notice of alibi the names and addresses of the witnesses upon whom he intends to rely to establish the alibi. Second, the attorney for the state must then reciprocate with the names and addresses of the witnesses who will testify as to the defendant's presence. These additions make the notice of alibi proceeding a more useful tool in the search for truth. They are both derived from F.R.Cr.P. 12.1, effective December 1, 1975. Subdivision (c) is derived from Vermont Rule of Criminal Procedure 16.1(b). Subdivision (d) is derived from Uniform Rule 423(b), with the difference that it conditions disclosure upon court order and not simply upon the attorney for the state's request.

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

Advisory Committee Note—1986 [M.R. Crim. P. 16A(c) and (d).] See Advisory Committee Note to amendment to Rule 16(b)(2)(C). [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. 16A(e).] See Advisory Committee Notes to amendments to Rules 16(b)(2)(C) and 16(c)(4). [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)(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—1991 [M.R. Crim. P. 16A.] The proposed amendment eliminates the necessity of a motion when the attorney for the state seeks discovery from the defendant of documents, tangible objects, experts' names or experts' reports. These items are made discoverable upon request, placing them in the same category as those items discoverable by the defendant. As with the proposed amendment to Rule 16, the burden of filing a motion is reversed; the party resisting discovery must file a motion for protective order. One last aspect of making the rules symmetrical is to add a subdivision on sanctions modeled after Rule 16(d).

Advisory Committee Note—1995 [M.R. Crim. P. 16A.] Requiring a defendant to provide notice of an intention to introduce expert testimony as to the defendant's mental state is designed to prevent unfair surprise at trial. The requirement is modeled on Federal Rule 12.2, which was promulgated twenty years ago. The rationale of the Federal Rule is: The objective is to give the government time to prepare to meet the issue, which will usually require reliance upon expert testimony. Failure to give advance notice commonly results in the necessity for a continuance in the middle of a trial, thus unnecessarily delaying the administration of justice. If defense counsel is unsure whether to introduce such expert testimony, defense counsel should ask the court to set a later deadline, as proposed in the first sentence. If defense counsel decides to introduce such expert testimony after the deadline has passed, the court may allow a late filing for cause shown (third sentence). "Cause shown" should be liberally construed to effectuate the purpose of the amendment, which is to prevent surprise by a defense counsel who has a preexisting intention to introduce such expert testimony.

Advisory Note – November 2011 The amendment to subparagraph (A)(vii), in combination with current subparagraph (A)(vi), are intended to mirror the category of "biological materials" described in new subdivision (k)(4) of Criminal Rule 41. See also

Advisory Note – November 2011 to M.R. Crim. P. 41(k).