Rule 22. [RESERVED]

Committee Notes

[Advisory Notes to former Maine Rules of Criminal Procedure] [Maine Rule of Criminal Procedure 22 (" TRANSFER FOR JURY TRIAL ON A CHARGE OF A CLASS D OR CLASS E CRIME" ) was in effect until the Maine Rules of Unified Criminal Procedure took effect. See M.R.U. Crim. P. 1(e) for the effective date.]

Advisory Committee Note—1975 [M.D.C. Crim. R. 40, precursor to M.R. Crim. P. 22.] This amendment implements Maine Laws, 1975, chapter 139. It changes the prior procedure in transfer cases by requiring arraignment and plea in the District Court and the raising in the District Court of any defenses or objections which must be raised under Rule 12. Thus, as on appeal, the only action left to be taken in the Superior Court is the trial, either before the court or before a jury. In order to eliminate a transfer inconveniencing the attorney for the state and witnesses for the state the rule provides that the request for transfer must be made at least three days prior to trial in the District Court or else the right to transfer will be deemed to have been waived.

Advisory Committee Note—1971 [M.D.C. Crim. R. 41(b).] There seems to be a great deal of confusion concerning the appropriate procedure for dealing with illegally secured evidence in misdemeanor proceedings pending in the District Court. The rules as originally drafted provided for no motion to suppress evidence in misdemeanor proceedings pending in the District Court. The theory behind this omission was that counsel, at the time of trial before the District Judge, could object to the admissibility of such evidence and without the necessity of discharging a jury have a full hearing as to the legality or illegality of the seizure. On the other hand, if there is a felony proceeding pending in the District Court, the defendant may immediately move in the Superior Court to suppress any illegally procured evidence. Apparently, District Court judges and Superior Court judges have been dealing with misdemeanor proceedings in somewhat different ways. Some District Court judges will not at trial consider an objection made on the ground that evidence is illegally secured but insist that counsel file a motion to suppress that evidence in Superior Court. Yet, some Superior Court judges will refuse to hear motions to suppress evidence in a misdemeanor proceeding which is pending in the District Court, relying upon what is the obvious intent of the rules that these matters be resolved by the District Court judge in passing upon the admissibility of the evidence. Other Superior Court judges will entertain such motions. Because of this confusion District Court Criminal Rule 41 is amended to provide that upon consent of all parties and the judge, prior to trial, a motion to suppress evidence may be heard in District Court in misdemeanor proceedings pending in that court. While it is the Committee's belief that this procedure will not be used nor need be used with any great frequency, on those occasions in which it might serve to expedite the disposition of a matter pending in the District Court there seems no reason to prohibit the court from determining the question of the admissibility of certain evidence prior to trial.

Advisory Committee Note—1978 [M.D.C. Crim. R. 41(a) and (b).] This amendment to District Court Rule 41 accommodates the new Criminal Code, 17-A M.R.S., effective May 1, 1976.

Advisory Committee Note—1982 [M.D.C. Crim. R. 41.] [See Note to the January 2, 1982 Amendment to District Court Criminal Rule 40].

Advisory Committee Note—1982 Notes of the Single Trial Committee and the Advisory Committee on Criminal Rules [M.D.C. Crim. R. 40.] On June 23, 1981, the Maine Legislature enacted c. 487, which repealed and replaced 15 M.R.S. § 2114 so as to read: § 2114. Defendant shall make election of jury trial. In all Class D and E criminal proceedings, the defendant may waive his right to jury trial and elect to be tried in the District Court, as provided by rule of the Supreme Judicial Court. An appeal to the Superior Court following trial and conviction in the District Court shall be only on questions of law. Shortly thereafter, the Chief Justice established a special committee of judges to formulate proposed rules for implementing the legislation. This committee, composed of Judges from the District Court, Superior Court and Supreme Judicial Court, became known as the Single Trial Committee. The central task of the Committee was to formulate a fair and workable procedure whereby the defendant might "waive" his right to jury trial and "elect" to be tried in the District Court. Three general approaches were possible. First, the defendant might waive his constitutional right by affirmative action. See, e.g., Criminal Rule 23(a). Second, the defendant might be required simply to elect whether to be tried in the District Court or the Superior Court. Third, the defendant might be deemed to waive his constitutional right by inaction. The Single Trial Committee chose the third approach. The heart of its proposal is contained in amendments to District Court Rules 5(b) and 40(a). Proposed District Court Rule 40(a) provides in relevant part: Unless a demand for trial by jury is made not later than 21 days after arraignment, the defendant shall be deemed to have waived his right to trial by jury. Proposed District Court Rule 5(b) provides in relevant part: The defendant shall be advised of his right to trial by jury and of the necessity of a demand for jury trial in accordance with these rules. The Advisory Committee on Criminal Rules preferred the second approach, viz., that of a mandatory election of forum. The Advisory Committee believed it insupportable that a right secured by the state and federal constitutions should be lost by uncounseled inaction. The Advisory Committee believed that if the "waiver by inaction" approach were followed, then further procedures would be necessary to assure the adequacy of the advice given the defendant under District Court Rule 5(b). Both Committees are in agreement that, if proposed District Court Rule 5(b) is adopted, that the defendant must be given the following kinds of advice: 1) Advice which is adequate to enable the defendant to make a "free and intelligent choice"; and 2) Advice about how to make a "demand." The Advisory Committee suggests that the defendant be given a paper at arraignment which: 1) Gives the defendant adequate advice about his choice; and 2) Provides the defendant with a form for exercising that choice and instructions on how to fill out and turn in the form. The Advisory Committee suggests that the Court take whatever action it believes appropriate to assure that this is done, including a further amendment to District Court Rule 5(b), an administrative order or action in conjunction with the Chief Judge of the District Court. Motions Another important decision reached by the Single Trial Committee is that all pretrial motions in cases transferred for trial in the Superior Court shall be made, heard and determined in tile District Court. This decision is implemented in amendments to District Court Rules 12(b), 40(a) and 41. 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. Once all the motions are determined, or the time for making motions has passed, the District Court will enter an order of transfer. Effective Date Any arraignment conducted after January 2, 1982 is to be conducted according to amended District Court Rule 5(b). If the arraignment was conducted prior to January 2, 1982, then the District Court must either rearraign the defendant or allow the defendant to exercise his options under the prior law, i.e., to transfer or to appeal for a trial de novo, unless the defendant has waived rearraignment.

Advisory Committee Note – 1989 [M.R. Crim. P. 22.] Former Rule 22 has been transferred to Rule 21. New Rule 22 incorporates the language of former District Court Rules 40 and 41(b). It also eliminates an ambiguity by making clear in the contemporaneous amendment of Rule 41(e) that certain motions for return of illegally seized property may be brought in District Court. [The Maine District Court Criminal Rules were abrogated and incorporated into the Maine Rules of Criminal Procedure, effective June 1, 1989. Because M.R. Crim. P. incorporates former M.D.C. Crim. R. 40 and 41, the

advisory committee notes to those abrogated rules are included below.]

Advisory Committee Note—1993 [M.R. Crim. P. 22(c).] The Chief Judge of the District Court has pointed out to the Committee that the requirement of a transfer order constitutes a cumbersome formality which results in unnecessary delay. The purpose of the amendment is to eliminate the requirement of a transfer order and to authorize the clerk to automatically transmit the file when the case is in order for transfer.

Advisory Committee Notes—1999 [M.R. Crim. P. 22(a).] This amendment eliminates current uncertainty as to when the 21-day period for filing a jury trial request commences in the event a plea of not guilty is entered in writing pursuant to Rule 10. In practice, some District Courts treat the 21-day period as beginning to run on the date the written plea is filed. Other District Courts treat the date originally set for arraignment as the commencement date. The latter approach is adopted both for purposes of clarity and in recognition of the fact that the scheduled arraignment date is generally the point in time when the attorney for the state is adequately prepared to provide information vital to the defendant's decision to file a jury trial request by way of discovery.

Advisory Committee Notes—2001 [M.R. Crim. P. 22(c).] This amendment corrects a typographical error and adds "a copy of all the docket entries" to those items required to be transmitted to the Superior Court by the clerk of the District Court.

Advisory Notes—2002 Subdivisions (b) and (c) of Rule 22 are modified to eliminate the current requirement that prior to a case involving a Class D or Class E crime being in order for transfer to the Superior Court following a timely demand for jury trial the District Court "shall proceed to hear all pretrial matters . . . ." Instead of requiring the District Court to essentially carry the entire burden of hearing and deciding pretrial motions in these cases, Rule 22 now provides that once a timely demand for jury trial is made the case will be in order for immediate transfer to the Superior Court and all timely filed pretrial motions, except motions for bail of an incarcerated defendant, not yet heard in the District Court will be heard and decided in the Superior Court following the transfer. These changes to Rule 22 do not alter the time within which pretrial motions must be filed in a case involving a Class D or Class E crime under Rule 12(b)(3).