Rule 6. The Grand Jury

(a) Number of Grand Jurors. The grand jury shall consist of not fewer than 13 nor more than 23 jurors and a sufficient number of legally qualified persons shall be summoned to meet this requirement.

(b) Objections to Grand Jury and to Grand Jurors.

(1) Challenges. Either the attorney for the State or a defendant who has been held to answer may challenge an individual grand juror on the ground that the juror is not legally qualified or that a state of mind exists on the juror's part that may prevent the juror from acting impartially. All challenges must be in writing and allege the ground upon which the challenge is made, and such challenges must be made before the time the grand jurors commence receiving evidence at each session of the grand jury. If a challenge to an individual grand juror is sustained, the juror shall be discharged, and the court may replace the juror from persons drawn or selected for grand jury service.

(2) Motion to Dismiss . A motion to dismiss the indictment may be based on objections to the array or, if not previously determined upon challenge, on the lack of legal qualifications of an individual juror or on the ground that a state of mind existed on the juror's part that prevented the juror from acting impartially, but an indictment shall not be dismissed on the ground that one or more members of the grand jury were not legally qualified if it appears from the record kept pursuant to subdivision (c) of this Rule that 12 or more jurors, after deducting the number not legally qualified, concurred in finding the indictment.

(c) Foreperson and Deputy Foreperson. The court shall appoint one of the jurors to be foreperson and another to be deputy foreperson. The foreperson shall have power to administer oaths and affirmations and shall sign all indictments. The foreperson or another juror designated by the foreperson shall keep a record of the number of jurors concurring in the finding of every indictment and shall file the record with the clerk of the Unified Criminal Docket, but the record shall not be public except on order of the court. During the absence of the foreperson the deputy foreperson shall act as foreperson.

(d) Presence During Proceedings. While the grand jury is taking evidence, only the attorneys for the State, the witness under examination, and, when ordered by the court, a security officer, an interpreter or translator, a court reporter, or an operator of electronic recording equipment may be present. While the grand jury is deliberating or voting, only the jurors may be present.

(e) General Rule of Secrecy. A juror, attorney, security officer, interpreter, translator, court reporter, operator of electronic recording equipment, or any person to whom disclosure is made under this Rule may not disclose matters occurring before the grand jury, except as otherwise provided in these Rules or when so directed by the court. No obligation of secrecy may be imposed upon any person except in accordance with this Rule. In the event an indictment is not returned, any stenographic notes and electronic backup, if any, of an official court reporter or tape or digital record of an electronic sound recording and any written record of information necessary for an accurate transcription prepared by the operator and any transcriptions of such notes, tape, or digital record shall be impounded by the court. The court may direct that an indictment be kept secret until the defendant is in custody or has given bail, and in that event the court shall seal the indictment and no person may disclose the finding of the indictment except when necessary for the issuance or execution of a warrant or summons. Disclosure otherwise prohibited by this Rule of matters occurring before the grand jury, other than its deliberations and any vote of any juror, may be made by an attorney for the State to:

(1) an attorney for the State in the performance of the duty of an attorney for the State to enforce the State's criminal laws;

(2) any staff members assigned to an attorney for the State who that attorney considers necessary to assist in the performance of that attorney's duty to enforce the State's criminal laws;

(3) any government personnel not otherwise addressed in this subdivision or subdivision (h) of this Rule that an attorney for the State considers necessary to assist in the performance of that attorney's duty to enforce the State's criminal laws; and

(4) another State grand jury by an attorney for the State in the performance of the duty of an attorney for the State to enforce the State's criminal laws. Any person to whom matters are disclosed under paragraphs (1), (2), or

(3) of subdivision (e) of this Rule may not utilize that grand jury material for any purpose other than assisting the attorney for the State in the performance of such attorney's duty to enforce the State's criminal laws. An attorney for the State who has made a disclosure pursuant to paragraph 3 of subdivision (e) of this Rule with respect to matters occurring before the grand jury shall promptly provide the court with the name of the persons and agencies to whom such disclosure has been made and shall certify that the attorney for the State has advised such persons of their obligation of secrecy under this Rule.

(f) Recording of Proceedings. Upon motion of the defendant or the attorney for the State, the court, in its discretion for good cause shown, may order that a court reporter or operator of electronic recording equipment be present for the purpose of taking evidence. No person other than a court reporter or operator of electronic recording equipment shall be permitted to record any portion of the proceeding.

(g) Procedure for Preparation and Disclosure of Transcript . No transcript may be prepared of the record of the evidence presented to the grand jury without an order of the court. Upon motion of the defendant or the attorney for the State and upon a showing of particularized need, the court may order a transcript of the record of the evidence to be furnished to the defendant or the attorney for the State upon such terms and conditions as are just.

(1) Transcripts of the record of the evidence may also be furnished upon such terms and conditions as are just

(A) When ordered by the court preliminarily to or in connection with a judicial proceeding and upon a showing of particularized need; or

(B) When ordered by the court at the request of an attorney for the State to an appropriate official of another jurisdiction for the purpose of enforcing the criminal laws of another jurisdiction upon a showing that such disclosure may constitute evidence of a violation of the criminal laws of that other jurisdiction.

(2) A petition for disclosure pursuant to paragraph (1) of subdivision (g) shall be filed in the Unified Criminal Docket where the grand jury was convened. Unless the hearing is ex parte, which it may be when the petitioner is the State, the petitioner shall serve written notice of the petition upon

(A) The attorneys for the State who were present before the grand jury, or their designee;

(B) The parties to the judicial proceeding if disclosure is sought in connection with such a proceeding; and

(C) Such other persons as the court may direct. The court shall afford those persons a reasonable opportunity to appear and be heard before disclosure of the transcript of the record of the evidence. The court shall order such a hearing to be closed to the extent necessary to prevent disclosure of matters occurring before the grand jury.

(3) If the judicial proceeding giving rise to the petition is before a court of another county, the court that convened the grand jury may transfer the disclosure hearing to the Unified Criminal Docket of the county of the petitioning court, unless the court convening the grand jury may reasonably obtain sufficient knowledge of the proceeding to determine whether disclosure is proper. The court convening the grand jury may order transmitted to the court to which the matter is transferred the material sought to be disclosed, if feasible, and a written evaluation of the need for continued grand jury secrecy.

(h) Disclosure for Certain Law Enforcement Purposes. Disclosure otherwise prohibited by this Rule of matters occurring before the grand jury, other than its deliberations and any vote of any grand juror, may be made by an attorney for the State to any law enforcement personnel (including personnel of the United States, another state or territory, or a subdivision of such) who that attorney considers necessary to assist in the performance of that attorney's duty to enforce the State's criminal laws. Any person to whom matters are disclosed under this subdivision may not utilize that grand jury material for any purpose other than assisting an attorney for the State in the performance of such attorney's duty to enforce the State's criminal laws. An attorney for the State who has made a disclosure pursuant to this subdivision with respect to matters occurring before the grand jury shall promptly provide the court with the names of the persons and agencies to whom such disclosure has been made, and shall certify that the attorney for the State has advised such persons of their obligation of secrecy under this Rule.

(i) Finding and Return of Indictment. An indictment may be found only upon the concurrence of 12 or more jurors. The indictment shall be returned to the court by the grand jury or its foreperson or its deputy foreperson in open court. If the defendant is in custody or has given bail and 12 jurors do not concur in finding an indictment, the foreperson shall so report to the court in writing forthwith.

(j) Excuse. At any time for cause shown, the court may excuse a juror either temporarily or permanently, and in the latter event the court may impanel another person in place of the juror excused. No juror may participate in voting with respect to an indictment unless the juror shall have been in attendance at the presentation of all the evidence produced in favor of and adverse to the return of the indictment.

Committee Notes

Advisory Note – July 2015 Rule 6(e) is amended to consistently capitalize "State." Rule 6(e) is additionally amended in the following respects: (1) The words "by an attorney for the State" are added after the word "made" and before the word "to" in the sentence containing the listed exceptions in subdivision (e) to make clear that the exceptions pertain to the disclosure of secret grand jury matters without prior judicial approval by an attorney for the State. (2) In paragraph (2) the "reasonably necessary" standard, permitting disclosure by an attorney for the State to some or all of that attorney's staff in order to assist that attorney in enforcing the State's criminal laws, is deleted and replaced by a "considers necessary" standard. The former phrase "reasonably necessary" was taken from former Rule 502(a)(5) of the Maine Rules of Evidence defining a client's "confidential" communication in the context of the lawyer-client privilege. See M.R. Crim. P. 6 Advisory Committee's Note to 1997 amend., Me. Rptr. 692-698 A.2d LXXIX. At the same time the "reasonably necessary" standard was adopted relative to subdivision (e), paragraph (2), a differing standard of "deemed necessary" was adopted for subdivision (h) of Rule 6 addressing dissemination by an attorney for the State to law enforcement personnel for the same purpose as specified in paragraph (2). This "deemed necessary" standard was taken from then Rule 6(e)(3)(A)(ii) of the Federal Rules of Criminal Procedure addressing dissemination by an attorney for the government to all "government personnel" assisting the government attorney in performing that attorney's duty to enforce federal criminal law. M.R. Crim. P. 6 Advisory Committee's Note to 1997 amend., Me. Rptr. 692-698 A.2d LXXXI. As now amended, the two above-described inconsistent standards are replaced by the "considers necessary" standard, the current formulation employed in Federal Criminal Rule 6(e)(3)(A)(ii). The same "considers necessary" standard is also employed in the newly added paragraph (3) exception addressing government personnel not otherwise dealt with in paragraphs (1) and (2) of subdivision (e) and subdivision (h). (3) In paragraph (2) nonsubstantive changes are made in order to both eliminate the awkward overuse of the term "attorney for the State" and to replace passive voice language with more readable active voice language. (4) A new exception is added in paragraph (3) to subdivision (e) that includes "any government personnel not otherwise addressed in . . . [subdivision e] or subdivision (h)." In 1997, at the time the specific exceptions relating to government personnel were adopted in subdivisions (e) and (h), although a model creating an exception sufficiently broad to include "any government personnel" was already embodied in then Federal Rule of Criminal Procedure 6(e)(3)(A)(ii) and known to the Advisory Committee, see M.R. Crim. P. 6 Advisory Committee's Note to 1997 amend., Me. Rptr. 692-698 A.2d LXXVIII], it chose instead to limit dissemination in the absence of a court order to specific categories of government personnel—namely, other attorneys for the State pursuant to paragraph (1) of subdivision (e), see id. at LXXVILXXVIII, staff members of an attorney for the State pursuant to paragraph (2) of subdivision (e), see id. at LXXVIII-LXXIX, and law enforcement personnel (including personnel of the United States, another state or territory, or a subdivision of such) pursuant to subsection (h), see id. at LXXXI-LXXXII. However, in the intervening eighteen years since subdivisions (e) and (h) were adopted, criminal investigations in Maine have taken on a degree of complexity not generally experienced or even perhaps contemplated in 1997. In turn, the necessity to regularly share secret grand jury material with government personnel not included within the listed subdivisions (e) and (h) categories has also grown. Two examples illustrate this point. Example 1: Welfare fraud investigations conducted on behalf of the Maine Department of Health and Human Services often involve individuals who conceal or fail to accurately disclose the amount of income or assets available to them. Grand jury subpoenas are commonly used by the attorney for the State to obtain relevant bank and employment records of these individuals. If an individual is also receiving public assistance from another agency, such as the Maine State Housing Authority, the Social Security Administration, or a municipality (administering general assistance benefits), and the individual has not accurately reported the individual's financial information to that other agency, because the criteria for qualifying for public assistance varies by agency, personnel of that agency must determine if there is an overpayment in the agency's program. Commonly that determination requires a review of the financial records obtained by grand jury subpoena. However, agency personnel are not within the listed subdivisions (e) and (h) categories and thus dissemination to them by the attorney for the State requires prior judicial approval. Example 2: Crimes that involve computer or digital evidence, including harassing or threating messages and internet child pornography, are investigated by the Maine State Police Computer Crimes Unit. In addition to law enforcement officers, see 17-A M.R.S. § 2(17), staff members include civilian personnel— namely, investigative assistants, forensic analysts, and experts. Grand jury subpoenas are commonly used by the attorney for the State at the initial stage of the criminal investigation typically stemming from a so-called "Cyber Tip" from an electronic service provider such as Google, Yahoo, or Facebook or from a citizen complaint. The Cyber Tip or citizen complaint is first reviewed by an investigative assistant. Depending upon the review outcome, including in the case of a computer image confirmation that the image is child pornography, the investigative assistant then asks the attorney for the State to obtain from the electronic service provider the internet account or from an email provider, the holder of the account. Investigative assistants, forensic analysts and experts employed by the Maine State Police Crime Unit, unless they happen to be law enforcement officers as well, M.R. Crim. P. 6 Advisory Committee's Note to 1997 amend., Me. Rptr. 692-698 A.2d LXXXI, are not within the listed subdivisions (e) and (h) categories and thus dissemination to them by the attorney for the State requires judicial approval. The new exception in paragraph (3) to subdivision (e) embraces the "any government personnel" approach now employed in the parallel Rule 6(e)(3)(A)(ii) of the Federal Rules of Criminal Procedure while, at the same time, retaining the added clarity afforded by the listing of specific categories of commonly occurring government personnel in subdivisions (e) and (h). (5) Current paragraph (3) is redesignated paragraph (4). (6) In the final paragraph of subdivision (e) two changes are made. First, a reference to new paragraph (3) is added in the first sentence in order to prohibit the use of grand jury material disclosed by an attorney for the State pursuant to paragraphs (3) except for the sole purpose of assisting the attorney for the State in the performance of that attorney's duty to enforce the State's criminal laws. Second, a new final sentence is added requiring an attorney for the State to both provide the court the name of the persons and agencies to whom disclosure of grand jury material has been made pursuant to paragraph (3), and to certify to the court that such persons and agencies have been advised of their obligation of secrecy under Rule 6. Rule 6(h) is amended in the first sentence in four respects. First, the words "by an attorney for the State" are added after the word "made" and before the word "to." See also M.R.U. Crim. P. 6(e) Advisory Note to July 2015 amend. Second, the "deemed necessary" standard is deleted and replaced by the "considers necessary" standard now employed in Rule 6(e)(2) and (3). See M.R.U. Crim. P. 6(e)(2), (3) Advisory Note to July 2015 amend. Third, nonsubstantive changes are made in order to both eliminate the awkward overuse of the term "attorney for the State" and to replace passive voice language with more readable active voice language. See also M.R.U. Crim. P. 6(e)(2) Advisory Note to July 2015 amend. Fourth, "State" is appropriately capitalized when the State of Maine is indicated.

Committee Advisory Note [December 2014] The Rule parallels the content of Rule 6 of the Maine Rules of Criminal Procedure but differs in the following respects. First, in subdivisions (b)(1), (d), (e), (f), (g), and (h) 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). Second, in subdivisions (b)(1) and (g)(2)(C) the word "before" replaces the phrase "prior to" to reflect modern usage. Third, in subdivision (b)(2) the word "that" replaces the word "which" to reflect modern usage. Fourth, in subdivision (c) the reference to "the clerk of court" is replaced by "the clerk of the Unified Criminal Docket." Fifth, in subdivision (g)(3) the words "Superior Court" are deleted and the words "Unified Criminal Docket" replace the reference to the "Superior Court." Sixth, in subdivisions (g)(3) [other than as stated immediately above] and (h) the word "court" replaces the words "the Superior Court." See Committee

Advisory Note [December 2014] to M.R.U. Crim. P. 3(b) and (d). Seventh, in subdivision (h) the final sentence is rearranged to enhance clarity.

[Advisory Notes to former Maine Rules of Criminal Procedure]

Advisory Committee Note—1971 [M.R. Crim. P. 6(b)(1) and (2).] The amendments to Rule 6(b) are necessitated by the enactment of Maine Laws, 1971, c.391 which adopts a comprehensive scheme for challenges to the array of grand jurors and traverse jurors. While the new statute authorizes the court to adopt rules "not inconsistent" with its provisions, it also provides that: "The procedures prescribed by this section are the exclusive means by which a person accused of a crime, the State or a party in a civil case may challenge a jury on the ground that the jury was not selected in conformity with the provisions of this chapter." The new statute contains no method whereby a challenge to the array of grand jurors may be made before the grand jury is sworn; to this extent, it is inconsistent with the prior provisions of Rule 6(b)(1). The amendment to 6(b)(1) eliminates all reference to challenges to the array of grand jurors prior to the swearing of the grand jury, but retains the provisions for challenge to an individual grand juror prior to swearing of the grand jury. The procedure for motion to dismiss an indictment if the grand jury was not properly selected is retained in Rule 6(b)(2). The limiting language of Rule 6(b)(2), "if not previously determined upon challenge," is moved to make it applicable only to challenges to individual grand jurors. There is one inconsistency between the new statute and Rule 6(b)(2), the statute denominates the procedural device for attacking the indictment as a motion to quash, whereas the Rule refers to a motion to dismiss. The Committee recommends retention of the motion to dismiss because Rule l2(a) has abolished motions to quash and it seems unwise to reintroduce this procedural device into the criminal procedure of the State of Maine. The inconsistency can be cured in the omnibus bill at the next meeting of the Legislature.

Advisory Committee Note—1978 1. Maine Rule of Criminal Procedure 6(d): Rule 6(d) is amended for purposes of clarity; no substantive change is intended. 2. Maine Rule of Criminal Procedure 6(e): Rule 6(e) is amended to effect a transfer of the provision for discovery of grand jury transcripts from former Rule 16(a) to Rule 6(e). The transfer is appropriate because discovery of grand jury transcripts, unlike other Rule 16 discovery, is not something which is discovered from the State, but is something which is made available to counsel for the parties by court order. It further provides that no transcript of the record of the evidence presented to the grand jury shall be prepared without a court order.

Advisory Committee Note—1979 [M.R. Crim. P. 6(d).] Because an official court reporter may not be available on those occasions when the court orders that grand jury evidence be taken down, Rule 6(d) is amended to provide that, though unofficial, a qualified court reporter will suffice.

Advisory Committee Note—1985 [M.R. Crim. P. 6(h).] Proposed section (h) provides for limited disclosure of information or exhibits for certain law enforcement purposes. This section does not supersede the requirement of Rule 6(e.) for disclosure of a grand jury transcript. This section is not intended to derogate from the tight of the defendant to request discovery pursuant to Rule 16(b) of whatever reports or statements are made by the person to whom disclosure is made. To implement this right a contemporaneous amendment is made to Rule 16(a) to require the attorney for the state to notify the defendant of the contents of the disclosure order.

Advisory Committee Note—1986 [M.R. Crim. P. 6(d).] The provision for a motion for recording grand jury proceedings is presently buried in Rule 6(d), which governs presence during proceedings. Given the importance of the motion for recording, provision for the motion should be made more accessible in the rules. This has been done by giving the motion its own subdivision as new Rule 6(f). The amendment also corrects any misimpression that might exist that an interpreter can be present without a court order. [M.R. Crim. P. 6(e).] The provisions for preparation and disclosure of a grand jury transcript are presently buried in Rule 6(e)'s restrictions on disclosure of proceedings. Given their importance, they should be made more accessible in the rules. This has been done by giving the provisions their own subdivision in new Rule 6(g). The word "official" is deleted in the first sentence of the first paragraph for consistency with the April 16, 1979 amendment to Rule 6(d). [M.R. Crim. P. 6(i) and (j).] Present Rules 6(f) and (g) are relocated to accommodate new Rules 6(f) and (g). [M.R. Crim. P. 6(f).] The first sentence is brought forward from Rule 6(d), for the reasons stated in the note to the amendment thereto. The second sentence is added to make clear that no recording of grand jury proceedings is permitted except pursuant to the first sentence. Examples of good cause for recording include the likely fabrication of testimony, the likely need to refresh a witness's memory and the need to deter or punish contempt. Although the final decision as to whether the evidence proffered by the movant constitutes good cause must be within the discretion of the court, the Committee believes that a little elaboration may be helpful. A. Likely Fabrication of Testimony A motion to record the grand jury testimony of a witness for the purpose of impeachment must be supported by evidence showing a likelihood that the witness will fabricate testimony. Thus showing may include a witness's prior inconsistent statements or his strong motive to proffer untruthful testimony before the grand jury or traverse jury. B. Likely Need to Refresh a Witness's Memory A motion to record grand jury testimony of a witness for the purpose of refreshing that witness' memory must be supported by evidence showing a likelihood of one or more of the following factors: (a) that an unusually long delay will exist between the witness's testimony before the grand and traverse juries, such as when the target of the grand jury is a fugitive or the crime is unsolved; (b) the witness is testifying to unusually complex facts; (c) the witness has a physical or mental ailment which affects recall; or (d) the witness's youth or advanced age affects recall. In addition to the factors stated in these examples, the court may consider supplementary factors such as the seriousness of the offense, the significance of the witness's testimony to the case against the defendant, and the availability of court reporters and other logistical concerns. [M.R. Crim. P. 6(g).] Rule 6(g) is brought forward from Rule 6(e), for the reasons stated in the note to the amendment to Rule 6(e).

Advisory Committee Note—1997 [M.R. Crim. P. 6(e).] The provisions of M.R. Crim. P. 6(e) are deleted and replaced with a revision of the text of Fed. R. Crim. P. 6(e)(2). The new subdivision does not alter the longstanding principle of grand jury secrecy recognized by the Maine courts. See State v. Levesque , 281 A.2d 570, 573 (Me. 1971) (quoting United States v. Rose , 215 F.2d 617, 628-29 (3d Cir. 1954)); see also 1 Cluchey & Seitzinger, Maine Criminal Practice § 6.6 at III-17 (1992). "Matters occurring before the grand jury" include, but are not limited to, the identity of witnesses, witness testimony before the grand jury, exhibits produced before the grand jury or pursuant to grand jury subpoena, and any other materials or items which indicate the focus of the grand jury process. See Russell J. Davis, Annotation, What are "Matters Occurring Before the Grand Jury" within Prohibition of Rule 6(e) of the Federal Rules of Criminal Procedure , 50 ALR Fed. 675 (1979 & Supp. 1995). Neither the prior subdivision, nor its replacement apply to material obtained or created independently of the grand jury as long as the disclosure of such material does not reveal what transpired before the grand jury. The grand jury secrecy rules also continue not to apply to information which has become a matter of public record, such as introduction of evidence at trial. Likewise, a witness before the grand jury may not be placed under any obligation of secrecy. See also Butterworth v. Smith , 494 U.S. 624 (1990) (Florida statute prohibiting grand jury witnesses from disclosing their own testimony violates the First Amendment.) [M.R. Crim. P. 6(e)(1).] New paragraph (1) of subdivision (e) provides that the disclosure of matters occurring before the grand jury to attorneys for the state in the performance of the duty of an attorney for the state to enforce the state's criminal laws is not prohibited by the general rule of grand jury secrecy pursuant to this subdivision. However, the attorneys for the state are subject to the secrecy provision of M.R. Crim. P. 6(e) with respect to additional disclosures of grand jury matters. The amendment is consistent with corresponding federal and state rules. Under the existing provisions of M.R. Crim. P. 6(h)(1), an attorney for the state, present for witness examination before a grand jury, may not disclose matters to the elected district attorney or to the attorney general, to other supervising lawyers or to colleagues without the prior approval of the court. See 1 Cluchey & Seitzinger, Maine Criminal Practice § 6.8 at III-24 (1992) ("Rule 6(h) makes clear that the attorney for the state who attends a grand jury proceeding must obtain a court order before disclosing information received during that proceeding to colleagues, assistants, and law enforcement officers for their use in assisting in enforcing the laws of Maine."). The requirement of obtaining a court order prior to the disclosure of matters occurring before the grand jury to other attorneys for the state hampers consistent grand jury assistance by the attorneys for the state, serves as an obstacle to the effective and proper operation of the grand jury and has proven so burdensome that the requirement is too often ignored by the prosecuting office and in turn not enforced by the court. The corresponding federal rule provides for disclosure among attorneys for the state, and the amended subdivision adopts, with minor revision, the language of the federal rule. See Fed. R. Crim. P. 6(e)(3)(A)(i). New paragraph (1) of subdivision (e) is in accord with the holding of the United States Supreme Court in United States v. Sells Eng'g, Inc. , 463 U.S. 418 (1983) by confining disclosure of matters occurring before the grand jury to "attorneys for the state in the performance of the duty of an attorney for the state to enforce the state's criminal laws." Cf. United States v. John Doe, Inc ., I, 481 U.S. 102 (1987) (Fed. R. Crim. P. 6 does not require Government attorney involved in grand jury investigation of criminal matter to obtain court order before making continued use of grand jury materials in civil proceeding). In Sells Eng'g , the Court held that attorneys for the government assigned to civil matters may not have full access to grand jury material for use in civil actions. The Court found that such disclosure under Fed. R. Crim. P. 6(e)(3)(C)(i) and demonstrates particularized need for the materials. 463 U.S. at 420. See hereinafter comment respecting M.R. Crim. P. 6(g)(1)(A). The Court further noted that: We do not mean to suggest that [Fed. R. Crim. P. 6(e)(3)(A)(i)] access to grand jury materials is limited to those prosecutors who actually did appear before the grand jury. If that were so, the Government would be arbitrarily foreclosed from increasing or changing the staffing of a given criminal case after indictment, or even from replacing an attorney who leaves Government service. Moreover, there would be little point to such an interpretation since anyone working on a given prosecution would clearly be eligible under Rule 6(d) to enter the grand jury room, even if particular individuals did not have occasion to do so. . . . [T]he intention of the Rule is that every attorney (including a supervisor) who is working on a prosecution may have access to grand jury materials, at least while he is conducting criminal matters. Id . at 429, n.11. The amendment is also in accord with the statutes and rules of neighboring jurisdictions in the Northeast. See Mass. R. Crim. P. 5(d) ("A person performing an official function in relation to the grand jury may not disclose matters occurring before the grand jury except in the performance of his official duties or when specifically directed to do so by the court"); R.I. Super. Ct. R. Crim. P. 6(e) ("Disclosure of matters occurring before the grand jury, other than its deliberations or the vote of any juror where an indictment has not been returned, may be made to attorneys for the State for use in the performance of their duties"); Vt. R. Crim. P. 6(f) ("Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the prosecuting attorneys for use in the performance of their duties"); N.Y. Crim. Proc. Law Art. 190.25(4)(a) ("For the purpose of assisting the grand jury in conducting its investigation, evidence obtained by a grand jury may be independently examined by the district attorney, members of his staff, police officers specifically assigned to the investigation, and such other persons as the court may specifically authorize. Such evidence may not be disclosed to other persons without a court order"). [M.R. Crim. P. 6(e)(2).] New paragraph (2) of subdivision (e) provides that the disclosure of matters occurring before the grand jury to the staff of an attorney for the state as is reasonably necessary to assist an attorney for the state in the performance of the duty of an attorney for the state to enforce the state's criminal laws is not prohibited by the general rule of grand jury secrecy pursuant to this subdivision. Under the existing provisions of M.R. Crim. P. 6(h)(2), secretarial and administrative assistance with any materials relating to the grand jury may not be proper absent prior court order upon a separate motion in each grand jury matter. This requirement has proven so burdensome that in practice court approval is not now commonly sought by an attorney for the state nor is this requirement commonly enforced by the court. The new paragraph recognizes that attorneys for the state rely upon their staff for administrative and clerical assistance with respect to matters occurring before the grand jury including, but not limited to, the preparation of case files, the organization of grand jury exhibits, and assistance with grand jury witnesses. The term "staff members" includes those persons who have an employment relationship with, or are assigned as staff to an attorney for the state. Persons employed by the counties or federal government to work in the offices of the various district attorneys are included in this definition. The term "staff members" also includes independent contractors or expert witnesses employed by an attorney for the state to assist an attorney for the state in the performance of the duty of an attorney for the state to enforce the state's criminal laws. See United States v. Lartey , 716 F.2d 955, 963-64 (2d Cir. 1983) (temporary government personnel and independent contractors employed by a government agency are "government personnel" within the meaning of Fed. R. Crim. P. 6(e)(3)(A)(ii)); United States v. Anderson , 778 F.2d 602, 605-06 (10th Cir. 1985) (disclosure of materials to expert witness employed by the government was permissible). The new paragraph is similar to Fed. R. Crim. P. 6(e)(3)(A)(ii) which provides that matters occurring before the grand jury may be disclosed without court order to "such government personnel as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney's duty to enforce federal criminal law." Under Fed. R. Crim. P. 6(e)(3)(A)(ii), "government personnel" means members of the prosecution support staff, law enforcement personnel, and personnel of any federal agency which is assisting the government attorney. See Richard Neumeg, Annotation, Who are "Government Personnel" within meaning of Rule 6(e)(3)(A)(ii) of the Federal Rules of Criminal Procedure to whom matters occurring before the grand jury may be disclosed , 54 ALR Fed. 805 (1981 & Supp. 1995). Unlike the federal rule, however, sworn law enforcement officers merely assisting in a specific investigation do not constitute "staff" within the meaning of this subdivision. In addition to the requirement that the person be a member of the "staff" of an attorney for the state, any disclosure of matters occurring before the grand jury must be "reasonably necessary" to assist the attorney for the state in the performance of the duty of an attorney for the state to enforce the state's criminal laws. The language "reasonably necessary" is taken from M.R. Evid. 502(a)(4) and M.R. Evid. 502(a)(5) which provides for the confidentiality of client communications make to a "lawyer" and "representatives of the lawyer." Similar to the extension of the Lawyer-Client Privilege under M.R. Evid. 502, the amendment permits the disclosure of matters occurring before the grand jury to staff members of an attorney for the state as are reasonably necessary to assist an attorney for the state. See M.R. Evid. 502(a)(5) ("A communication is 'confidential' if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of legal services to the client or those reasonably necessary for the transmission of the communication .") (emphasis added). The staff of an attorney for the state to whom matters occurring before the grand jury are disclosed is subject to the grand jury secrecy requirements pursuant to this subdivision. [M.R. Crim. P. 6(e)(3).] New paragraph (3) of subdivision (e) provides that the disclosure of matters occurring before the grand jury by an attorney for the state to another grand jury is not prohibited by the general rule of grand jury secrecy pursuant to this subdivision. The language of the new paragraph is taken from Fed. R. Crim. P. 6(e)(3)(C)(iii), adopted in 1983 to codify the existing case law which permitted, in some circumstances, the disclosure of grand jury material from one grand jury to another. See United States v. Content , 735 F.2d 628, 630 (1st Cir. 1984); United States v. Penrod , 609 F.2d 1092, 1095-97 (4th Cir.) cert. denied, 446 U.S. 917 (1979); United States v. Garcia , 420 F.2d 309, 311 (2d Cir. 1970). "In this kind of situation, '[s]ecrecy of grand jury materials should be protected almost as well by the safeguards at the second grand jury proceeding, including the oath of the jurors, as by judicial supervision of the disclosure of such materials.'" Fed. R. Crim. P. 6(e)(3)(C)

Advisory Committee Notes, 97 F.R.D. 245, 269 (1983), quoting United States v. Malatesta , 583 F.2d 748 (5th Cir. 1978). The rule applies to disclosure between the regular sitting and the special sitting of grand juries. See 15 M.R.S. § 1256 (1980). [M.R. Crim. P. 6(g).] The provisions of M.R. Crim. P. 6(g) are deleted and replaced. Its new substance conforms with the prior subdivision (g). Pursuant to the prior subdivision and its replacement no transcript of witness testimony or evidence presented to the grand jury may be prepared without court order. Furthermore, under both, there is no provision for recording the attorney for the state's advice or comments to the grand jury. See State v. Haberski , 449 A.2d 373, 378 (Me. 1982), cert. denied , 495 U.S. 1174 (1983). The new subdivision and prior Rule 6(g) both require that a transcript may not be furnished until the movant has established "particularized need" for access to the transcript. The new subdivision is not intended to alter whatsoever the "particularized need" standard as previously addressed by the Law Court. See State v. Philbrick , 551 A.2d 847, 851 (Me. 1988) (inconsistencies between grand jury testimony and trial testimony "were not so glaring that without more showing, release of the grand jury transcript was compelled"); State v. Mahaney , 437 A.2d 613, 619-20 (Me. 1981) (mere allegation that there may be changes between witness' grand jury testimony and trial testimony does not constitute particularized need for access to grand jury transcripts); State v. Doody , 432 A.2d 399, 400-402 (Me. 1981) (allegation of possible inconsistencies does not constitute particularized need for access to grand jury transcripts); State v. Rich , 395 A.2d 1123, 1127 (Me. 1978), cert. denied , 444 U.S. 854 (1978) (proper denial of motion for court reporter where defendant merely argued that transcripts would be valuable for impeachment purposes); State v. Cugliata , 372 A.2d 1019, 1022-25 (Me. 1977) (defendant failed to demonstrate particularized need for access to grand jury transcripts); see also 1 Cluchey & Seitzinger, Maine Criminal Practice § 6.8 at III-22 (1992) ("The Law Court has interpreted the particularized need requirement strictly and has regularly upheld the Superior Court in denying or stringently limited access to grand jury testimony under Rule 6") (footnote omitted). The new subdivision merely codifies existing case law and provides more specific grounds under which matters before the grand jury may be disclosed. [M.R. Crim. P. 6(g)(1)(A).] New subparagraph (A) of paragraph (1) of subdivision (g) provides for the disclosure of transcripts of evidence presented to the grand jury preliminarily to or in conjunction with a judicial proceeding upon order of a justice of the Superior Court. The new subparagraph adopts the two-pronged definition of "preliminarily to" articulated by the United States Supreme Court in United States v. Baggot , 463 U.S. 476 (1983). With respect to the first prong, the Court held that Fed. R. Crim. P. 6(e)(3)(C)(i) "contemplates only uses related fairly directly to some identifiable litigation, pending or anticipated. . . . If the primary purpose of disclosure is not to assist in the preparation or conduct of a judicial proceeding, disclosure . . . is not permitted." Id . at 480. With respect to the second prong, the Baggot Court held that the litigation must be more than a remote contingency before disclosure can be characterized as preliminary to a judicial proceeding. Id . at 482, n.6. The new subparagraph adopts the common law definition of judicial proceeding. "[T]he term 'judicial proceeding' includes any proceeding determinable by a court, having for its object the compliance of any person, subject to judicial control, with standards imposed upon his conduct in the public interest, even though such compliance is enforced without the procedure applicable to the punishment of crime." Doe v. Rosenberry , 255 F.2d 118, 120 (2d Cir. 1958) (Hand, J.); see Black's Law Dictionary 849 (6th ed. 1990). Under this subdivision, the following may qualify as judicial proceedings: attorney and judicial disciplinary hearings, law enforcement officer disciplinary hearings, impeachments hearings, grand jury proceedings of the federal government or any other state, and trials of the federal government or any other state. In addition to the requirement that disclosure must be preliminarily to or in connection with a judicial proceeding, the movant must establish particularized need for access to the grand jury transcripts. The language of the subparagraph is adopted from Fed. R. Crim. P. 6(e)(3)(C)(i). [M.R. Crim. P. 6(g)(1)(B).] New subparagraph (B) of paragraph (1) of subdivision (g) permits disclosure of transcripts of evidence presented to the grand jury to other jurisdictions upon a motion of the attorney for the state. The subparagraph is substantially similar to the corresponding federal rule, but uses the broader term "jurisdiction" in order to authorize disclosure to foreign countries. Compare Fed. R. Crim. P. 6(e)(3)(C)(iv). [M.R. Crim. P. 6(g)(2).] New paragraph (2) of subdivision (g) also identifies the necessary parties that must be served notice when a petition for disclosure is filed under this subdivision. The purpose of the subdivision is to provide a hearing, prior to disclosure of grand jury materials, to all persons who might suffer substantial injury. Where the party seeking disclosure is not the attorney for the state, this subdivision also requires that party to notify the attorneys for the state who were present during the matter before the grand jury or their designee, the parties to the proceedings, and such other parties as the court may direct. If the party seeking disclosure is the attorney for the state, the proceedings may be ex parte. Attorneys for the state should ordinarily file disclosure motions ex parte whenever a public filing would result in a breach of grand jury secrecy. The term "parties to the judicial proceeding" refers to the named parties in the judicial proceeding for which disclosure is sought. [M.R. Crim. P. 6(g)(3).] New paragraph (3) of subdivision (g) adopts the language and procedure of Fed. R. Crim. P. 6(e)(3)(F) which authorizes a court to transfer a disclosure hearing to the court conducting the judicial proceeding which has given rise to a petition for disclosure. The amendment and the corresponding federal rule adopt the procedure suggested by the United States Supreme Court in Douglas Oil Co. v. Petrol Stops Northwest , 441 U.S. 211 (1979), for resolving venue issues with respect to grand jury disclosure proceedings. Both the amendment and the corresponding federal rule recognize that the court conducting the judicial proceeding is usually in the best position to weigh the impact and the need of the material sought and to determine whether it is appropriate to disclose the grand jury material. Nothing in this section should be construed to extend jurisdiction over grand jury matters or grand jury disclosure hearings to the District Courts. [M.R. Crim. P. 6(h).] The provisions of M.R. Crim. P. 6(h) are deleted and replaced. The new subdivision allows the limited disclosure of matters occurring before the grand jury to law enforcement personnel who are assisting the attorney for the state with the enforcement of state criminal laws. The term "law enforcement personnel" includes sworn law enforcement officers within the meaning of 17-A M.R.S. § 2(17) (Supp. 1995), law enforcement personnel of any state, and federal law enforcement personnel. Disclosure to law enforcement personnel is permitted only when necessary to assist in enforcing state criminal laws. The amendment does not permit disclosure for civil law enforcement purposes under this subdivision. In contrast to the holdings of the federal courts in Unites States v. Hogan , 489 F. Supp. 1035, 1039 (W.D. Wash. 1980) (probation officers are not government personnel within the meaning of Fed. R. Crim. P. 6(e)(3)(A)(ii), therefore inclusion of grand jury material in presentence report was improper), and Bradley v. Fairfax , 634 F.2d 1126, 1129 (8th Cir. 1980) (disclosure not appropriate for use in parole revocation hearings), the subdivision includes probation revocation investigations and presentence investigations as matters which constitute enforcement of state criminal laws within the meaning of this subdivision. Under this subdivision, unlike that which it replaces, there is no requirement of court authorization to disclose matters occurring before the grand jury to law enforcement personnel. The attorney for the state, however, has an affirmative duty to provide promptly a written notice to the Superior Court listing the names and agencies of all persons to whom disclosure has been made under this subdivision. The written notice shall also include written certification that the attorney for the state has advised such persons of their obligation of secrecy under this rule. The written notice and certification must be filed with the Superior Court in which the grand jury is sitting, and may be filed before or following such disclosure.

Advisory Committee Note—2003 [M.R. Crim. P. 6(c) and (i).] The amendment replaces the word "foreman" with the word "foreperson" in order to make the subdivisions gender neutral.

Advisory Note – June 2006 M.R. Crim. P. 6(a) and (b)(2). The amendment replaces in the text spelled-out numbers with their figure counterparts. Referring in the text of a rule to numbers using figures rather than spelling the numbers out is the modern practice respecting the Maine Rules of Criminal Procedure because it enhances clarity and readability. The number "one" is an exception and is generally spelled out. M.R. Crim. P. 6(e)(2) and (3). The amendment adds at the end of paragraph 2 immediately following the semicolon the word "and" and at the end of paragraph 3 replaces the semicolon with a period. M.R. Crim. P. 6(i). The amendment modifies the current requirement that a grand jury appear as a body in open court at the time it returns its indictments by allowing this duty to be performed as well by the jury's foreperson or deputy foreperson. This change is for the purposes of sound judicial administration. The amendment additionally replaces the word "judge" with the word "court". This change achieves consistency of terminology throughout the rule. Finally, the amendment replaces in the text spelled-out number "twelve" with its figure counterpart. See Advisory Note to M.R. Crim. P. 6(a) and (b)(2).

Advisory Note - 2008 M.R.Crim.P. 6(d) and (e). The amendment adds the term "translator". See Advisory Note to M.R.Crim.P. 28.

Advisory Note – 2009 M.R.Crim.P. 6(d). The amendment adds "operator of electronic recording equipment" to accommodate the recording of grand jury proceedings by way of an electronic sound recording. Prior to this amendment, Rule 6 contemplated that only official court reporters would be used for taking evidence in grand jury proceedings. However, with the recent substantial reduction in the number of official court reporters, their availability for purposes of taking evidence in grand jury proceedings has been correspondingly reduced, necessitating the recognition in Rule 6 of an electronic sound recording option. M.R.Crim.P. 6(e). The amendment expands the rule of secrecy to include an "operator of electronic recording equipment." See also Advisory Note – 2009 to M.R.Crim.P. 6(d). Further, in the event of a no bill by a grand jury the items subject to a court order of impoundment is expanded by the amendment to include the "electronic backup" currently used by many official court reporters in addition to their stenographic notes and the "tape or digital record of an electronic sound recording as well as any written record of information necessary for an accurate transcription prepared by the operator." See generally , M.R.Civ.P. 76H and M.R.Crim.P. 27(c). An "electronic backup" or "digital record" may include, in addition to a tape, preservation of a record on a CD, DVD, Flash Drive or other device capable of storing electronic or digital files for later recall. M.R.Crim.P. 6(f). The amendment adds "operator of electronic recording equipment" to provide for an electronic sound recording option in addition to using a court reporter to take evidence in grand jury proceedings. See also

Advisory Note – 2009 to M.R.Crim.P. 6(d).

Advisory Note—July 2010 The amendment to M.R. Crim. P. 6(d) and (e) adds "security officer" to subdivision (d) to allow the court to order that a security officer be physically present while the grand jury is taking evidence when the court is satisfied that this action is appropriate to help ensure the safety of the grand jurors and the attorneys for the state. Additionally, the amendment expands the rule of secrecy in subdivision (e) to include a "security officer."