Rule 26. Evidence

(a) Form. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these Rules, the Maine Rules of Evidence, or other rules adopted by the Supreme Judicial Court.

(b) Examination of Witnesses. The examination and crossexamination of each witness shall be conducted by one counsel only on each side, except by special leave of court, and counsel shall stand while so examining or cross-examining unless the court otherwise permits. Any reexamination of a witness shall be limited to matters brought out in the last examination by the adverse party, except by special leave of court.

(c) Order of Evidence. A party who has rested a case cannot thereafter produce further evidence except in rebuttal unless by leave of court.

(d) Attorney Not to Be Witness. No attorney shall be permitted to be a witness for his or her client before a jury without special permission of the court.

(e) Allegation of Prior Conviction; Procedure. In a trial to a jury in which the prior conviction is for a crime that is identical to the current principal crime or is sufficiently similar that knowledge of the fact that the defendant has been convicted of the prior crime may, in the determination of the presiding justice, unduly influence the ability of the jury to determine guilt fairly, that portion of the charge alleging the prior conviction shall not be read to a jury until after conviction of the principal crime, nor shall the defendant be tried on the issue of whether he or she was previously convicted until after conviction of the principal crime, unless the prior conviction has been admitted into evidence for another reason. The jury that found the defendant guilty of the current principal crime shall determine whether the defendant was convicted of the prior alleged crime unless that jury has been discharged before the filing of an amended indictment, if required to charge the prior conviction.

(f) Marking of Exhibits; Insurance for Valuable Exhibits. The parties shall mark their exhibits before trial or hearing or during a recess. A party who offers a valuable exhibit shall be responsible for procuring insurance for it.

(g) Election by Unrepresented Defendant. In a trial involving an unrepresented defendant, the court shall (A) advise an unrepresented defendant, out of the presence of the jury, of the necessity of choosing between exercising the right to remain silent and exercising the right to testify; (B) ensure that the defendant understands these alternative rights; and (C) give the defendant the opportunity to make an election between them. If the defendant elects to testify, the court shall advise the defendant how and when the right to testify may be exercised.

Committee Notes

Committee Advisory Note [December 2014] The Rule parallels the content of Rule 26 of the Maine Rules of Criminal Procedure except that in subdivisions (e) and (f) the word "before" replaces the phrase "prior to" to reflect modern usage.

[Advisory Notes to former Maine Rules of Criminal Procedure]

Advisory Committee Note—1976 [M.R. Crim. P. 26.] These amendments are to be effective February 2, 1976 to coincide with the effective date of the Maine Rules of Evidence. Their purpose is to bring the Rules of Criminal Procedure into conformity with the Rules of Evidence.

Advisory Committee Note—2000 [M.R. Crim. P. 26(e).] New subdivision (e) to Rule 26 is added as a consequence of both the repeal of 15 M.R.S. § 757 and the enactment of 17-A M.R.S. § 9-A in its stead. See P.L. 1999, ch. 196, effective September 18, 1999. Subsection 1 of section 9-A directs that "[t]he Supreme Judicial Court shall provide by rule the manner of alleging the prior conviction in a charging instrument and conditions for using that prior conviction at trial ." (emphasis supplied). The new subdivision is similar in substance to former 15 M.R.S. § 757(2).

Advisory Committee Note—2003 [M.R. Crim. P. 26(d).] The amendment modifies paragraph (d) in two respects. The amendment abrogates that portion prohibiting an attorney from providing bail or recognizance as surety for a client for two reasons: (1) any prohibition relating to bail is inappropriately included within Rule 26, a rule that addresses trial "evidence"; (2) if the matter is to be addressed by rule at all, it is better left to the Advisory Committee on Professional Responsibility. See M. Bar. R. 3.7(d). The amendment also simplifies the current language of the remaining portion of paragraph (d) prohibiting an attorney, without court permission, from testifying before a jury on behalf of a client. [M.R. Crim. P. 26(e).] The amendment adds the words "or she" in the first sentence in order to make the subdivision gender neutral.

Advisory Note - June 2006 M.R. Crim. P. 26(f). The amendment incorporates in the rule the provisions of Administrative Order JB-05-23, Marking, Removal, and Disposal of Exhibits in Criminal Actions , effective August 1, 2005, that deal with the marking of exhibits and insurance for valuable exhibits.

Advisory Note – 2007 M.R.Crim.P. 26(g). In State v. Tuplin , 2006 ME 83, 901 A.2d 792, the Law Court sharply divided over whether the unrepresented defendant in that case had been adequately advised of his competing rights to testify or to remain silent. But all the Justices agreed that the "best practice" was to advise the unrepresented defendant of the need for an election between these rights. The amendment seeks to incorporate this "best practice" into Rule 26.