Rule 24. Trial Jurors

(a) Examination of Jurors. The court shall conduct the initial examination of the prospective jurors unless the court, in its discretion, elects to allow the parties or their attorneys to conduct an initial examination, either directly or indirectly through the court. If the court conducts the initial examination, when that examination is completed, the court, in its discretion, may allow the parties or their attorneys to address additional questions to the prospective jurors, either directly or indirectly through the court, on any subject that has not been fully covered in the court's examination and that is germane to the jurors' qualifications.

(b) Challenges for Cause. Challenges for cause of individual prospective jurors shall be made at the bench, at the conclusion of the examination.

(c) Peremptory Challenges.

(1) Manner of Exercise . Peremptory challenges shall be exercised by striking out the name of the juror challenged on a list of the drawn prospective jurors prepared by the clerk. The court may permit counsel to exercise a peremptory challenge of a juror immediately following the examination of that juror.

(2) Order of Exercise . Peremptory challenges shall be exercised one by one, alternately, with the State exercising the first challenge. If there are two or more defendants, the court may allow additional peremptory challenges as specified in paragraph (3), and the court may permit the additional challenges to be exercised separately or jointly, and determine the order of the challenges.

(3) Number . If the crime charged is punishable by life imprisonment, each side is entitled to 10 peremptory challenges. If the crime charged is a Class A crime not punishable by life imprisonment, a Class B crime, or a Class C crime, each side is entitled to 8 peremptory challenges. In all other criminal prosecutions each side is entitled to 4 peremptory challenges. If there are two or more defendants, the court may allow each side additional peremptory challenges.

(d) Alternate Jurors. The court may direct that not more than 4 jurors in addition to the regular panel be called and impaneled to sit as alternate jurors as provided by law. The manner and order of exercising peremptory challenges to alternate jurors shall be the same as provided for peremptory challenges of regular jurors. In all criminal prosecutions, each side shall be entitled to one peremptory challenge of the alternate jurors. If there is more than one defendant, the court may allow additional peremptory challenges to the defendants and the State, permit the additional challenges by the defendants to be exercised separately or jointly, and determine the order of the challenges.

(e) Sequestration of the Jury. In all jury trials the jury shall be allowed to separate until it retires to consider its verdict, unless the court finds it necessary to order sequestration of the jury to ensure the fairness of the trial. Upon retiring to consider its verdict, the jury shall be sequestered, but it may be allowed to separate in the discretion of the court.

(f) Note-Taking by Jurors. The court in its discretion may allow jurors to take handwritten notes during the course of the trial. If note-taking is allowed, the court shall instruct the jury on the note-taking procedure and on the appropriate use of the notes. Unless the court determines that special circumstances exist that should preclude it, jurors should be allowed to take their notes into the jury room and use them during deliberations. Counsel may not request or suggest to a jury that jurors take notes or comment upon their note-taking. Upon the completion of jury deliberations, the notes shall be immediately collected and, without inspection, physically destroyed under the court's direction.

Committee Notes

Committee Advisory Note [December 2014] The Rule parallels the content of Rule 24 of the Maine Rules of Criminal Procedure but differs in the following respects. First, the procedure in subdivision (a) respecting the examination of prospective jurors is changed to require the court to conduct the initial examination of the prospective jurors unless, as an exercise of discretion, the court allows the parties or their attorneys to do so. Further, if the court conducts the initial examination, additional questions by the parties or their attorneys, addressed either directly or indirectly through the court, may only address a subject not fully covered in the court's examination that is germane to the jurors' qualifications. Second, in subdivision (c)(2) 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—1967 [M.R. Crim. P. 24(c)(1).] The amendment to this rule is designed to deal with a problem which has arisen in cases in which the selection of the jury extended over a period of several days. A single trial juror who has been examined on voir dire and passed for cause may be permitted to remain with other prospective jurors who have been so examined and passed despite the fact that one of the counsel is certain that he will ultimately exercise a peremptory challenge and excuse that juror. Counsel have complained that the sequestering of that juror with other prospective jurors who have been passed for cause may result in contamination of the entire panel. Apparently some Justices have doubted whether they had the power to permit peremptory challenge of a juror immediately following his examination. The amendment removes any doubt.

Advisory Committee Note—1976 [M.R. Crim. P. 24(c)(3).] This amendment accommodates the abolition of the felony misdemeanor distinction in the new Criminal Code, Title 17-A of the Maine Revised Statutes. No change is made in the number of peremptory challenges allowed. 1st and 2nd degree criminal homicide carry the same number of challenges formerly allowed in murder cases. Classes A, B, and C carry the same number as formerly allowed in other felony cases. Classes C and D [sic] carry the same number as formerly allowed in misdemeanors.

Advisory Committee Note—1977 [M.R. Crim. P. 24(c)(3).] This amendment conforms the Rule to the reintroduction in the Criminal Code of the crime of murder, l7-A M.R.S. § 201, in lieu of the crimes of homicide in the first and second degree. P.L. 1977, c.510, § 38, effective October 24, 1977. Supreme Judicial Court Note—1978 [M.R. Crim. P. 24(e).] Subdivision (e) changes the prior practice, as reaffirmed in State v. Woods, 154 Me. 102, 144 A.2d 259 (1958), requiring sequestration of the jury throughout a trial in which the offense charged is punishable by life imprisonment. The subdivision makes the practice in such a trial the same as in all others: sequestration of the jury throughout the trial is not required. However, the court has discretion, which it may exercise at its commencement or any time in the course of a trial, to require sequestration of the jury to protect the fairness of the trial. The reference to the availability of alternative means makes clear that the court may resort to methods other than sequestering the jury to protect the fairness of the trial, including, for example: before trial, to order a change of venue or a continuance and, at trial, (1) to subject prospective jurors to careful examination to minimize likelihood that the judgment of the jurors chosen will be affected by potential exposure to matters outside the evidence, (2) to instruct parties and witnesses that extrajudicial statements about the case should not be made for public dissemination, (3) to admonish the jurors when sworn, and to repeat the admonition frequently during the trial, that the jurors should avoid reading newspapers, or listening to or watching radio or television accounts of the proceedings in the case, or (4) with the consent of the defendant, to exclude the public from any part of the trial which takes place outside the presence of the jury. This subdivision also continues the practice requiring sequestration of the jury once if has retired to consider its verdict, simultaneously preserving the practice established by Anonymous, 63 Me. 590 (1875) of permitting the court in special circumstances to authorize the jury to separate after delivery of a sealed verdict. However, the rule of Anonymous is changed in the single particular that the authorization for sealed verdicts is extended to trials in which the offense charged is punishable by life imprisonment. It should be noted that in light of Rule 31(e) the special circumstances warranting resort to a sealed verdict would exist only rarely.

Advisory Committee Note—1984 [M.R. Crim. P. 24(e).] The redrafting of Rule 24(e) creates twin rebuttable presumptions: 1) that a jury should be allowed to separate during trial and 2) that it should be sequestered after retiring to deliberate. Allowing separation during deliberations with the consent of the parties and the approval of the court reflects the fact that not all cases pose a significant danger of improper influence on the jury if it is allowed to separate during deliberations.

Advisory Committee Note—1990 [M.R. Crim. P. 24(e).] Rule 24(e) is amended to remove the requirement that the parties consent to the separation of a jury which has retired to consider its verdict. The question of separation of a jury which has begun deliberations is now left to the discretion of the presiding justice.

Advisory Committee Note—1991 [M.R. Crim. P. 24(c)(2) and (3) and 24(d).] The Advisory Committee sees no reason to continue the practice of giving to a defendant in a murder case twice as many peremptory challenges as are given to the state. This amendment should reduce the jury costs of a murder trial. If there is more than one defendant, the court has discretion to allow additional challenges.

Advisory Committee Note—1996 [M.R. Crim. P. 24(f).] New subdivision (f) is added to address notetaking during the trial by jurors. Heretofore juror note-taking has not been the subject of statute or court rule. Until recently, Maine has followed the common law practice of not allowing jurors to take notes. State v. Fuller , 660 A.2d 915, 917 (Me. 1994). However, in Fuller the Law Court declined to find juror note-taking an illegal practice and instead gave tacit approval to allowing it if properly monitored by the trial court and accompanied by adequate instructions. Id . at 917, n.1. New subdivision (f) expressly recognizes the propriety of the practice. It leaves the decision as to whether jurors should be allowed to take notes in a given case solely in the hands of the trial court as an exercise of sound discretion. It is assumed that a court in exercising that discretion will take into consideration the anticipated length and relative complexity of the case. Note-taking by means other than writing, such as the use of an audio recording device or laptop computer, are not permitted under the rule. However, an exception made to reasonably accommodate a disabled juror would be allowed where necessary to comply with controlling federal or state law. If note-taking is allowed, new subdivision (f) contemplates that the trial court must exercise control and direction over the manner in which jurors take notes over the course of the trial. In this regard, the trial court is expected to supply the materials necessary for jury note-taking, maintain proper control over such materials throughout the trial, and provide by way of preliminary instructions proper guidance to the jurors as to the proper procedure and the appropriate use of the notes. Barring problems encountered during trial with juror note-taking in a given case, new subdivision (f) anticipates, if note-taking is permitted by the court in the first instance, that the jurors will have the use of their notes during deliberations. This anticipation is based upon the apparent illogic of allowing note-taking during trial but then denying the note-takers the actual use of their notes during deliberations. Before jury deliberations, the rule assumes that the trial court, as part of its final instructions to the jury, will once again give proper guidance as to the use of the notes. As is true with the preliminary instructions, these final instructions on note usage should include the following conditions: First, that the jurors' notes "are merely aids to their memories and should not be given precedence over their independent recollection of the evidence." Esaw v. Friedman , 217 Conn. 553, 563, 586 A.2d 1164, 1169 (1991). Second, "that a juror who has not taken notes should rely on his [or her] recollection of the evidence and should not be influenced by the fact that other jurors have done so." Id . Third, "that they should not allow their notetaking to distract them from paying proper attention to the evidence presented to them." Id . Fourth, and finally, that the jurors "must not disclose the contents of their notes except to their fellow jurors." Id . at n.10. New subdivision (f) seeks to make clear that counsel is prohibited from requesting or suggesting to the jury that written notes be taken or to comment in any way upon the jurors' note-taking. Commenting to the jury respecting note-taking is wholly a matter for the trial court. New subdivision (f) requires that immediately at the completion of jury deliberations, the written notes will be collected, without inspection, and physically destroyed under the direction of the trial court. Immediate physical destruction reflects the rule's intent that jurors' notes are not to be used to impeach a verdict. Further, to allow preservation of the notes for purposes of a post-verdict motion or appellate review . . . would be inconsistent with the purposes of permitting jurors to take notes in the first place. That purpose is to enable any individual juror, if he [or she] sees fit, to make a private, confidential written record of his [or her] thoughts, perceptions and questions so that he [or she] may better be able to recall the evidence and to engage in deliberations at the appropriate time. . . . Requiring that the notes be preserved would create the impermissible risk that jurors who wish to take notes would be inhibited from doing so. Id . 217 Conn. at 565, 586 A.2d at 1170. Still further, immediate physical destruction rather than preservation is entirely consistent with M.R. Evid. 606(b) that excludes testimony from a juror about his or her own thought processes in arriving at a verdict as well as any statements made in the course of the jury's deliberations. Finally, barring the need to do so earlier, the Committee intends to review the operation of new subdivision (f) in two years to determine if any revision of it is necessary or desirable.

Advisory Note – June 2006 M.R. Crim. P. 24(d). The amendment replaces the spelled-out number "four" with its figure counterpart. See Advisory Note to M.R. Crim. P. 6(a) and (b)(2).

Advisory Notes – March 2010 M.R. Crim. P. 24(c)(2) and (3). The amendment modifies paragraph (2) of subdivision (c) in two respects. In the first sentence the word "alternatively" is replaced by the word "alternately." In the second sentence, that portion addressing the court's authority to allow additional peremptory challenges in the event of multiple defendants has been moved to paragraph (3) as a new final sentence since paragraph (3) addresses the number of peremptory challenges authorized. That portion of the second sentence addressing exercise of additional peremptory challenges provided to multiple defendants is retained in paragraph (2) with new introductory language. As in current practice, when the court exercises its authority to increase the number of peremptory challenges, an equal increase is given to each side. See, Alexander, Maine Jury Instruction Manual, § 2-13 (4th ed. 2009). The amendment further modifies paragraph (3) of subsection (c) in two respects. In the first sentence the reference to "murder" is replaced by "punishable by life imprisonment" since the crime of aggravated attempted murder, 17-A M.R.S. § 152-A, added to the Maine Criminal Code by P.L. 2001, ch. 413, § 2, is also potentially punishable by life imprisonment. Historically, entitlement by each side to the maximum number peremptory challenges authorized by Rule 24 for any crime has been predicated upon the crime charged carrying the potential of life imprisonment as a punishment. See generally, 1 Cluchey & Seitzinger, Maine Criminal Practice, § 24.4, n. 41 at V-57 (Gardner ed. 1995); Me. Rptr. 344-351 A.2d XLIII-XLIV and LIV-LV; and Me. Rptr. 376-380 A.2d XXXII and XXXVIII. The second sentence, in addition to formalistic changes to enhance clarity, adds the limitation "not punishable by life imprisonment" because aggravated attempted murder is a Class A crime. 17-A M.R.S. § 152-A(2).