Rule 5. Initial Proceedings in the Unified Criminal Docket

(a) Initial Appearance Before the Court. A defendant arrested for any crime, either under a warrant issued upon an indictment or upon an information or complaint filed in the Unified Criminal Docket or without a warrant, who is not sooner released, shall be brought before the court without unnecessary delay and in no event later than 48 hours after the arrest, excluding Saturdays, Sundays, legal holidays, and court holidays. Such appearance may be by audiovisual device in the discretion of the court. If such appearance has not taken place within 36 hours after the arrest, the custodian shall notify the attorney for the State of the upcoming deadline. If such appearance has not taken place within 48 hours after the arrest, excluding Saturdays, Sundays, legal holidays, and court holidays, the custodian shall release the defendant from custody or bring the defendant forthwith before the court for such appearance.

(1) Defendants Arrested Under a Warrant. Defendants arrested under a warrant issued upon an indictment, an information, or a complaint filed in the Unified Criminal Docket shall be taken before the court. If the arrest is made at a place 100 miles or more from the court designated in the warrant, the defendant arrested, if bail has not been previously set or denied by the court, shall be taken before the nearest available court or, if authorized to set bail for the crime charged pursuant to the Maine Bail Code, before the nearest available bail commissioner, who shall admit the defendant to bail for appearance before the court where the indictment, information, or complaint has been filed. Such appearance should be scheduled for no fewer than 14 days and not more than 42 days after the arrest. A determination of probable cause pursuant to Rule 4A shall not be made.

(2) Defendants Arrested Without a Warrant. Defendants arrested without a warrant shall be taken before the court. The complaint or information shall be filed in the Unified Criminal Docket forthwith. A determination of probable cause shall be made in accordance with Rule 4A unless an indictment has been returned.

(b) Initial Statement of Rights by the Court. When a defendant arrested, either under a warrant issued upon an indictment, an information, or upon a complaint filed in the Unified Criminal Docket or without a warrant is brought before the court or a defendant who has been summonsed appears before the court in response to a summons, the court, in open court, shall, unless waived by the defendant's counsel, inform the defendant of:

(1) the substance of the charges against the defendant;

(2) the defendant's right to retain counsel, and to request the assignment of counsel and to be allowed a reasonable time and opportunity to consult counsel before entering a plea;

(3) the right to remain silent and that the defendant is not required to make a statement and that any statement made by the defendant may be used against the defendant;

(4) the maximum possible sentence, and any applicable mandatory minimum sentence; and

(5) the defendant's right to trial by jury. The statement of rights required to be given by this Rule shall be stated live to the defendant in open court by the court, or stated by the court in a video recording viewed by the defendant before his or her first appearance.

(c) Further Statement of Rights by the Court With Respect to Class C or Higher Crimes in the Absence of an Indictment or Information. A defendant charged by complaint with any Class C or higher crime shall not be called upon to plead to that Class C or higher crime, and the defendant shall be advised of the right to apply for a waiver of indictment pursuant to Rule 7(b) and to enter any plea upon a complaint or an information after a waiver is accepted. No defendant charged with murder shall be allowed to plead guilty or nolo contendere before indictment.

(d) Pleas at Initial Appearance. A defendant charged with a Class D or Class E crime (and not charged with related Class C or higher crimes) shall be called upon to plead after that defendant has been provided with the statement of rights required by subdivision (b), unless that defendant has requested a reasonable time and opportunity to consult with counsel. If a defendant charged with a Class D or Class E crime who is not represented by a lawyer for the day or other counsel pleads "not guilty" or for whom a plea of "not guilty" is entered by the court, the court shall ensure that the defendant is aware of his or her right to trial by jury. Before accepting a guilty or nolo contendere plea from a defendant charged with a Class D or Class E crime, the court shall comply with the requirements of Rule 11(g). Before accepting a guilty or nolo contendere plea from a defendant charged with a Class C or higher crime, the court shall comply with the requirements of Rule 11(b).

(e) Assignment of Counsel. When a person is entitled to courtappointed counsel, the court shall assign counsel to represent the defendant not later than the time of the initial appearance, unless the person elects to proceed without counsel. Counsel may be assigned, or a lawyer for the day may be designated, for the limited purpose of representing the person at the initial appearance or arraignment. The determination of indigency and the assignment and compensation of counsel shall be governed by the provisions of Rules 44, 44A, 44B, and 44C.

Committee Notes

Committee Advisory Note [December 2014] The Rule merges Rules 5 and 5C of the Maine Rules of Criminal Procedure into a single rule addressing initial proceedings in the Unified Criminal Docket for defendants arrested or summonsed for any crime (misdemeanor or felony). Rule 5B of the Maine Rules of Criminal Procedure is abandoned as no longer relevant given the unified criminal process. The Rule parallels the content of Rules 5 and 5C but differs in the following respects. First, the Rule replaces all references to "the Superior Court or the District Court," with the words "Unified Criminal Docket." Second, the word "court" replaces all references to "a District Court judge or a Superior Court justice." See Committee Advisory Note [December 2014] to M.R.U. Crim. P. 57(d). Third, in subdivision (a) 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). Fourth, in subdivision (a) the word "defendant" replaces the word "person" to make the Rule internally consistent. Fifth, in subdivision (a)(1) the words "if authorized to set bail for the crime charged pursuant to the Maine Bail Code" are added in light of 15 M.R.S. §§ 1023(4) and 1092(4). See Committee Advisory Note [December 2014] to M.R.U. Crim. P. 4(f)(3). Sixth, in subdivision (a)(1) timing relates to a defendant's appearance before the court where the indictment, information, or complaint has been filed. Specifically, "[s]uch appearance should be scheduled for no fewer than 14 days and not more than 42 days after the arrest." Seventh, in subdivision (b) the word "before" replaces the phrase "prior to" to reflect modern usage. Eighth, in subdivision (c) the words "pursuant to Rule 7(b)" is added following the word "indictment" both for the purpose of clarity and consistency with Rule 11(f).

[Advisory Notes to former Maine Rules of Criminal Procedure]

Advisory Committee Note—1974 [M.R. Crim. P. 5(c).] The amendment to this rule requires that preliminary examinations be electronically recorded in accordance with the provisions of District Court Criminal Rule 39A providing for electronic sound recording, which is effective simultaneously. See Advisory Committee's Note to that rule.

Advisory Committee Note—1980 [M.R. Crim. P. 5.] The purpose of the proposed amendment of Criminal Rule 5 is two-fold. First, the requirement that an arrested person be taken before a magistrate within the division of the arrest is eliminated, and a specific time limit is placed on the amount of delay permitted between the time of arrest and the time of the first court appearance before a magistrate. Second, an express requirement that a judicial determination of probable cause be made at a defendant's first appearance is included in the Rule. Paragraph (a). The requirement that an arrested person be taken before a magistrate within the division of arrest is eliminated and a specific time limit is added. Paragraph (b). Because of the 48-hour requirement in paragraph (a), there will be cases where an attested person is taken before a magistrate out of the division of arrest, and a formal complaint has not been filed by the time of the first appearance be fore the magistrate. The requirement that the magistrate inform a person of the complaint against him has been expanded to cover those cases where a complaint has not yet been filed. Paragraph (c) is new. The purpose of this paragraph is to insure that counsel is assigned promptly. Because defendants may be appearing out of the division of arrest, this paragraph expressly authorizes the magistrate to appoint counsel for the limited purpose of representing the defendant at the first appearance or arraignment only. Paragraph (d) is new. This paragraph is designed to satisfy the rationale of Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975). Paragraph (e). The term "bind-over hearing" has been used to highlight the distinction between the "preliminary examination," for which "bind-over hearing" is a synonym, and the Gerstein v. Pugh hearing described in paragraph (d). While the latter may be had before a magistrate outside the division of arrest, the bind-over hearing generally should be scheduled in the division of the arrest, or, in the case of an arrest under a warrant, in the division commanded in the warrant.

Advisory Committee Note—1989 [M.R. Crim. P. 5.] The functions of a District Court judge at a defendant's initial appearance depend on whether the charge is within the trial jurisdiction of the District Court. Rule 5 provided for the initial appearance on a charge of a Class C or higher crime, while District Court Rule 5 provided for the initial appearance on a charge of a Class D or Class E crime. The merger preserves the distinction. New Rule 5 is derived from Rule 5, while new Rule 5A is derived from District Court Rule 5. The last paragraph of Rule 5(e) is derived from the last paragraph of Rule 7(b). This transfer is appropriate because the time when the District Court judge should notify the bound-over defendant of the possibility of proceeding by information is at the bind-over hearing. District Court Rule 5(b), dealing with arraignment, is transferred to the arraignment rule, Rule 10. The rules use the term "District Court judge" instead of "Magistrate" for the sake of clarity; there is no Maine judicial officer called a "Magistrate."

Advisory Committee Note—1991 [M.R. Crim. P. 5(d).] The previous language of the second paragraph appeared to limit the flexibility of the judge in selecting the source or sources from which to derive the determination of probable cause. This was due to the fact that the subparagraphs were joined by the connective "or." The present language was adopted during the recent merger in order to increase the judge's flexibility in selecting the source or sources, but it has not had the intended effect. The proposed language states what the judge shall consider in making the determination of probable cause but is deliberately silent as to what source or sources the judge may select to derive the determination of probable cause. The proposed language should promote the original intent of increasing judicial flexibility in selecting the source or sources. Thus, in an unusual case where the sworn complaint sets forth sufficient facts from which the judge may determine that probable cause exists, an additional source is unnecessary.

Advisory Committee Note—1992 [M.R. Crim. P. 5(d).] In County of Riverside v. McLaughlin , 111 S. Ct. 1661 (1991), the United States Supreme Court held that a probable cause determination generally must be made within 48 hours after a warrantless arrest and that, in computing the 48-hour period, weekends and holidays may not be excluded from the computation. Since the combined effect of present Rules 5(a) and (d) and Rules 5A(a) and (d) of the Maine Rules of Criminal Procedure is to permit just such an exclusion, Rules 5 and 5A should be amended to excise this unconstitutional exclusion. The proposed amendment requires that weekends and holidays be included in the computation of the 48-hour period. The practical effect of the amendment is that some probable cause determinations required by Rules 5 and 5A will need to be made on a Saturday, Sunday or holiday. In order to accommodate this situation, three practical procedural steps are proposed: (1) reduce the number of cases in which a probable cause determination must be made to those in which a determination is constitutionally required; (2) enlarge the number of judicial officers who may decide the issue; and (3) adopt procedural mechanisms to ease travel requirements. A determination is constitutionally required to be made only in cases of "detention following a warrantless arrest" (Riverside, 111 S. Ct. at 1665). Thus if a defendant is arrested pursuant to an arrest warrant or is released on bail within the 48-hour period, the federal constitution does not require that a probable cause determination be made. Subdivision (d) of Rules 5 and 5A presently requires a determination if an arrest warrant is issued by a clerk of court or if the defendant is released "under any condition of release except personal recognizance." The amendment deletes both requirements. The Committee believes that quality control of clerks' warrants is best undertaken through the supervisory authority of the Chief Judge of the District Court pursuant to 4 M.R.S. § 161. The Committee also believes that the present broad definition of "custody" is unsuited to the new situation. The amendment enlarges the number of judicial officers who may decide the issue by authorizing justices of the peace to take any action required by subdivision (d) of Rules 5 and 5A. The amendment would ease travel requirements by authorizing the judicial officer to perform by telephone the administration of oaths and the receipt of oral statements.

Advisory Committee Note—1994 [M.R. Crim. P. 5(a).] The amendment, in conjunction with new Rule 5B, authorizes the Chief Justice of the Supreme Judicial Court to issue an administrative order approving the experimental use of audiovisual devices in specified district courts for a specified period of time under specified conditions in certain limited situations. These situations are: (1) The initial appearance of a defendant in custody pursuant to Rule 5 or 5A, including a bail hearing: (2) The arraignment of a defendant in custody charged with a Class D or E offense. [M.R. Crim P. 5(b) and 5(e).] Pre-conviction bail procedure for a defendant is largely, although not entirely, dictated by the Maine Bail Code (15 M.R.S. ch. 105-A) rather than by rule. See M.R. Crim. P. 46(a). The amendment reflects this fact. Comparable amendments are made to Rules 5(e), 5A(b), and 42(b).

Advisory Committee Note—1998 [M.R. Crim. P. 5.] This amendment is intended to streamline and clarify Rule 5 by splitting off into separate new rules subdivisions (d) and (e), dealing with initial probable cause determinations for warrantless arrests and with bind-over hearings, respectively, which are not part of the Rule 5 initial appearance. This amendment is also intended to incorporate certain provisions of former Rule 5A, which has been repealed because it is largely duplicative of Rule 5. This amendment also eliminates the requirement that a person arrested on a warrant demand to be brought before the nearest available District Court judge or bail commissioner if the person has been arrested more than 100 miles from the place where the warrant issued. This amendment also clarifies that the person shall have a reasonable amount of time to consult with counsel before entering a plea. This amendment also requires District Court judges to inform a person charged with a Class D or E crime of the maximum penalties and any applicable mandatory minimum penalties before calling on the person to plead. Finally, the rule provides that at the end of 36 hours if the initial appearance before a District Court judge has not as yet taken place, the custodian must notify the attorney for the State. Within the remaining period the attorney for the State can both assess the situation and provide proper guidance to the custodian.

Advisory Committee Notes—1999 [M.R. Crim. P. 5.] This amendment identifies the District Court to which a person arrested under a warrant is to be brought as that "designated in the warrant" rather than as "within the division within which the warrant was issued." The amendment is also intended to clarify that a District Court Judge or bail commissioner should not alter a preexisting order of a court setting or denying bail. Finally, the amendment further clarifies that a person charged with a Class D or E crime may not be called upon to plead if that person has requested a reasonable time and opportunity to consult with counsel.

Advisory Committee Notes—2000 [M.R. Crim. P. 5.] This amendment, in conjunction with new Rule 5C, clarifies that Rule 5 governs initial proceedings in the District Court upon the filing of a complaint or an information (with waiver of indictment) only. New Rule 5C governs initial proceedings in the Superior Court following the filing of an indictment or information (with waiver of indictment). Apart from a number of purely formalistic modifications, this amendment to Rule 5 makes three additional changes. First, in subdivision (a) the phrase "court holidays" has been added to serve, in addition to "Saturdays, Sundays and legal holidays," as an exception to the requirement that the person in custody must appear before the court within 48 hours following arrest. "Court holidays" would include those nonjudicial days, although not a weekend or legal holiday, in which the court is simply not available due to, for example, judicial conferences, employee vacations, sickness or inclement weather. Postponement for "court holidays" beyond 48 hours, unlike Rule 4A, does not implicate County of Riverside v. McLaughlin , 500 U.S. 44 (1991). Second, in subdivision (a) the consequence of exceeding 48 hoursnamely, release from custody (on bail) - is clarified to ensure that the custodian, if a court is immediately available, has the additional option of getting the person before the court for that person's initial appearance. Third, and finally, in paragraph (1) of subdivision (a) a person arrested under a warrant may now be taken "to the nearest available District Court" as an alternative to the District Court "designated in the warrant."

Advisory Committee Notes—2001 [M.R. Crim. P. 5(c).] This amendment requires the court at the initial appearance to provide the notice that is required by 14 M.R.S. § 3141(2)— namely, that if the person is ". . . convicted of the criminal offense and if a fine is imposed by the court, immediate payment of the fine in full is required." [M.R. Crim. P. 5(d).] See Advisory Committee Note to M.R. Crim. P. 5(c).

Advisory Committee Note – March 2005 [ M.R. Crim. P. 5.] The amendment makes changes reflecting that although the District Court shall remain the court for initiating a criminal case that involves Class D or Class E crimes, the District Court no longer is the court for initiating a criminal case that involves murder or at least one Class A, Class B, or Class C crime, accompanied or unaccompanied by related Class D or Class E crimes. Under the new process, any case involving at least one felony must be commenced by filing a criminal complaint directly in the Superior Court rather than in the District Court as has been the case. See also Advisory

Committee Note to M.R. Crim. P. 3(a) and (b).

Advisory Note—July 2010 The amendment modifies Rule 5, subdivisions (a) and (d). [Amendments to related Rules subdivisions are in development.] The present amendment to Rule 5 makes three principal changes. First, it eliminates the unnecessary distinction between the Superior Court and the District Court by making the rule applicable to initial proceedings occurring in either trial court for persons arrested or summonsed for misdemeanor crimes. See also Advisory Note—July 2010 to M.R. Crim. P. 1. Second, it eliminates a point of confusion by clarifying that Rule 5 addresses initial proceedings for persons arrested or summonsed for Class D or Class E crimes only and not charged with a related Class C or higher crime. If the person is also arrested or summonsed for a related Class C or higher crime, the initial proceedings are as specified in Rule 5C rather than Rule 5. Third, the amendment substitutes "assigned counsel" for "courtappointed counsel" and adds references to Rule 44 and "a lawyer for the day" in subdivision (d). The substitution and added reference to Rule 44 are in response to the recent statutory enactment establishing the Maine Commission on Indigent Legal Services. See Advisory Note—July 2010 to M.R. Crim. P. 44. The added reference to "a lawyer for the day" is for the purpose of completeness. The determination of indigency and the assignment and compensation of counsel is governed by the provisions of Rules 44, 44A, 44B, and 44C.

Advisory Note—July 2012 The amendment modifies Rule 5(b) and (c) in the following respects. First, the word "person," or a variant thereof, is replaced with the word "defendant," or its variant, throughout subdivision (b) because the latter term is overwhelmingly employed in the Maine Rules of Criminal Procedure when referencing an accused. Second, the introductory language to subdivision (b) is restated using a simpler approach. Third, the former option in subdivision (b), that a defendant may waive being informed by the court of the defendant's constitutional rights at the initial appearance, is deleted. Waiver of such rights may be exercised only by the defendant's counsel. A lawyer for the day, appointed for the limited purpose of representing the defendant at the initial appearance, may waive for the defendant a statement of rights otherwise required at that initial appearance if the lawyer affirmatively informs the court that the lawyer has specifically advised the defendant of the rights and that the defendant understood them. State v. Galarneau, 2011 ME 60, ¶¶ 8-10, 20 A.3d 99. Fourth, formalistic changes are made to paragraph (2) of subdivision (b) to enhance clarity and readability. Fifth, the phrase "right to remain silent" is added in paragraph (3) of subdivision (b). Sixth, former subdivision (c) is merged with subdivision (b). The use of two subdivisions is unnecessary and creates potential confusion. Seventh, the provision covering admitting a defendant to bail, formerly in paragraph (4) of subdivision (b), is deleted as unnecessary because the procedure for setting preconviction bail, including the directive for court action, is addressed by statute in the Maine Bail Code. Eighth, the word "penalties" in paragraph (4) of subdivision (b) [formerly paragraph (1) of subdivision (c)] is replaced by the word "sentence" both to conform paragraph (4)'s terminology with that of Rule 11(c)(1), and to eliminate a confusing term that more commonly is used in the context of civil violations rather than crimes. Ninth, the phrase "in courts not operating a unified criminal docket" is added to paragraph (5) of subdivision (b) [formerly paragraph (2) of subdivision (c)]. The defendant must be informed of the necessity of a demand for jury trial only in courts not operating a unified criminal docket. In unified criminal docket courts, a defendant charged with any crime has the opportunity for a jury trial, unless that right is waived. Tenth, the reference to payment of fines in former paragraph (3) of subdivision (c) is not incorporated into subdivision (b) because the issue of payment of fines does not arise until after a plea, and then only if a fine is imposed. Eleventh, the final unnumbered paragraph in former subdivision (c) is deleted since its substance is now addressed in new subdivision (c). Twelfth, a new final paragraph is added to subdivision (b) recognizing current practice that allows the general statements of rights to be presented by video at a defendant's first appearance, while clarifying the requirement of an individualized colloquy before the acceptance of any pleas that will result in conviction. The individualized colloquy is not required when a defendant is represented by retained or appointed counsel or a lawyer for the day and the court is satisfied that the attorney advised the person of the rights. Finally, the amendment adds a new subdivision (c) to Rule 5 that, along with the amendments to Rule 5(b), clarifies the practice for statements of rights and taking of pleas at first appearance on misdemeanor charges. See also Advisory Note – July 2012 to M.R. Crim. P. 5C(b) and (d). [Rule 5B was in effect until the adoption of the Maine Rules of Unified Criminal Procedure. See M.R.U. Crim. P. 1(e) for the effective date.]