Rule 7. The Indictment and the Information

(a) Use of Indictment, Information, or Complaint. All proceedings in which the crime charged is murder shall be prosecuted by indictment. All proceedings in which the crime charged is a Class A, Class B, or Class C crime shall be prosecuted by indictment, unless indictment is waived, in which case prosecution may be by information or complaint in accordance with this Rule. In the event that a Class D or Class E charge may be joined with a related charge of murder or a related charge involving at least one Class A, Class B, or Class C crime under Rule 8(a), that Class D or Class E charge should be prosecuted in the same indictment charging murder or the same indictment, information, or complaint charging the Class A, Class B, or Class C crime. Any indictment, information, or complaint so filed, if the indictment, information, or complaint supplements or replaces another charging instrument, must indicate the docket number previously assigned to the earlier charging instrument.

(b) Waiver of Indictment. Any crime except murder may be prosecuted by information or complaint upon request of the defendant if prosecution by indictment is waived by the defendant in open court. The waiver shall be in writing and signed in open court by the defendant, but the absence of a writing in such a case shall not be conclusive evidence of an invalid waiver.

(c) Nature and Contents. An indictment shall be signed by the foreperson of the grand jury, and an information shall be signed by the attorney for the State and certified on information and belief. The indictment or the information shall be a plain, concise, and definite written statement of the essential facts constituting the crime charged. The indictment or information is not required to negate any facts designed a "defense" or any exception, exclusion, or authorization set forth in the statute defining the crime. It need not contain a formal commencement, a formal conclusion, or any other matter not necessary to such statement. Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the crime are unknown or that the defendant committed it by one or more specified means. The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation, or other provision of law, and the class of crime that the defendant is alleged therein to have violated. Error in the citation of a statute or its omission shall not be grounds for the dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to the defendant's prejudice. All charges against a defendant arising from the same incident or course of conduct should be alleged in one indictment or information. An indictment or information may include multiple counts charged against a defendant when authorized pursuant to Rule 8(a). Nothing in this Rule shall prohibit the later commencement of additional charges arising from the original incident or course of conduct. The court may administratively consolidate such subsequent charges with the original indictment or information into a single case docket. Two or more defendants may not be charged in the same indictment or information. If a prior conviction must be specially alleged pursuant to 17-A M.R.S. § 9-A(1) it may not be alleged in an ancillary indictment, information or separate count thereof but instead must be part of the allegations constituting the principal crime. A prior conviction allegation made in one count may be incorporated by reference in another count.

(d) Surplusage. The court on motion of the defendant may strike surplusage from the indictment or information.

(e) Amendment of Indictment or Information. The court may permit the amendment of an indictment charging a crime other than a Class D or Class E crime at any time before verdict or finding if the amendment does not change the substance of the crime. The court may permit the amendment of an indictment charging a Class D or Class E crime, or an information at any time before verdict or finding if no additional or different crime is charged and if no substantial right of the defendant is prejudiced. Unless the statutory class for the principal crime would be elevated thereby, amendment of an indictment or information for purposes of 17-A M.R.S. § 9-A(1) may be made as of right by the attorney for the State at any time before the imposition of sentence on the principal crime, and sentencing shall be continued until the attorney for the State has been afforded the opportunity to obtain an amended indictment if the allegation must be made by the grand jury. With respect to joint recommendations for disposition involving an amendment to the indictment or information, the motion to amend the indictment or information must be in writing, must be accompanied by the proposed amended indictment or information, and must be filed with the clerk for docketing before it is presented to a justice or judge for disposition.

(f) Arrest Tracking Number (ATN) and Charge Tracking Number

(CTN) . Unless the crime charged is an excepted crime under Rule 57, each count of the indictment or information should include the assigned Arrest Tracking Number and Charge Tracking Number.

(g) State Identification Number. If a State Identification Number has been assigned to a defendant by the State Bureau of Identification, and if that State Identification Number is known to the attorney for the State, the indictment or information shall contain the State Identification Number.

(h) Statute Sequence Number. Each count of the indictment or information shall set forth the Statute Sequence Number for the crime or crime variant charged.

Committee Notes

Committee Advisory Note [December 2014] The Rule parallels the content of Rule 7 of the Maine Rules of Criminal Procedure but differs in the following respects. First, in subdivision (b) the procedure for waiver of indictment by a defendant is changed to require both that the waiver be in writing and that it be signed in open court. However, subdivision (b) also provides that the absence of a writing in such a case is not conclusive evidence of an invalid waiver. This same procedure is also applied in the waiver of jury trial context. See Committee Advisory Note [December 2014] to M.R.U. Crim. P. 23(a). Second, in subdivision (c), (e), and (g) 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). Third, in subdivision (c) the word "that" replaces the word "which" in the seventh sentence to reflect modern usage. Fourth, in subdivision (e) the word "before" replaces the phrase "prior to" to reflect modern usage. Fifth, a new subdivision (h) is added requiring that each count of the indictment or information identify the Statute Sequence Number for the crime or crime variant charged. See Committee Advisory Note [December 2014] to M.R.U. Crim. P. 3(g) and 57(h).

[Advisory Notes to former Maine Rules of Criminal Procedure]

Advisory Committee Note—1976

Advisory Committee Notes to Rule 7(a) of the Maine Rules of Criminal Procedure: This amendment is consistent with 17-A M.R.S. § 9(1) and (2). It implements Art. 1, Sec. 7 of the Maine Constitution which requires that all infamous crimes be prosecuted by indictment. The constitutionality of 17-A M.R.S. § 9 was recognized in Opinion of the Justices , Me., 338 A.2d 802 (1975).

Advisory Committee Notes to Rule 7(b) of the Maine Rules of Criminal Procedure: This amendment is consistent with 17-A M.R.S. § 9 which allows waiver of indictment except for 1st and 2nd degree criminal homicide.

Advisory Committee Note—1977 Rule 7(a) of the Maine Rules of Criminal Procedure: This amendment conforms the Rule to the re-introduction in the Criminal Code of the crime of murder, 17-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. Rule 7(b) of the Maine Rules of Criminal Procedure: See Note 1.

Advisory Committee Note—1978 [M.R. Crim. P. 7(f).] Rule 7(f)'s provisions governing a bill of particulars are transferred to the new discovery rule in order to emphasize the bill's discovery function. See Note to Rule 16.

Advisory Committee Note—1980 The amendment to the first paragraph makes clearer that indictment cannot be waived in a murder prosecution. The amendment to the second paragraph is intended to save paperwork and court time in dealing with plea agreements which provide for charging the defendant with a different Class D or Class E crime than that charged in the District Court.

Advisory Committee Note—1981 [M.R. Crim. P. 7(c).] The added provision is presently contained in the Criminal Code, 17-A M.R.S. § 5(2)(A). The Criminal Law Advisory Commission recommends that it be transferred to the Criminal Rules, for the reason that it is a rule of pleading that properly belongs with procedural rules rather than in the substantive criminal law.

Advisory Committee Note—1985 [M.R. Crim. P. 7(e).] The amendment is designed to codify the case law on the permissibility of amending an indictment. The absence of such a provision in Rule 7 has tended to cause confusion. The leading statement of the rule is found in State v. Larrabee, 377 A.2d 463, 465 (Me. 1977): It is beyond peradventure that the State can amend an indictment as to form but would have to resubmit the indictment to the grand jury if it desired a substantive change . . . A substantive amendment is one that changes the nature or grade of the offense charged . . . If, however, the change in an indictment does not alter any fact which must be proved to make the act charged a crime, the amendment is formal . . . See also State v. Hathorne , 387 A.2d 9, 12 (Me. 1978).

Advisory Committee Note—1989 [M.R. Crim. P. 7(b) and (e).] The last paragraph of Rule 7(b) is transferred to Rule 5(e) because the timing of the notification is at the bindover hearing. The references in Rule 7(e) to the amendment of a complaint have been deleted because Rule 3(d) provides for such amendment.

Advisory Committee Notes—2000 [M.R. Crim. P. 7(c).] See Advisory Committee Note to M.R. Crim. P. 3(a). [M.R. Crim. P. 7(e).] Except where the sentencing class for the principal offense would be elevated thereby, this amendment provides that an attorney for the state retains the right at any time prior to sentence imposition on the principal offense to amend the indictment or information for purposes of alleging a prior conviction for sentence enhancement purposes, including, if need be, utilizing the grand jury. The exception avoids a constitutional problem presented, once jeopardy has attached, by a sentencing factor that must be pled and proved in the same manner as an element. See Jones v. United States , 526 U.S. 227, 119 S. Ct. 1215, 1224 n.6 (1999) (Under Due Process clause and jury guarantee of the Sixth Amendment, "any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged . . . [formerly], submitted to a jury, and proven beyond a reasonable doubt.") See also Advisory

Committee Note to M.R. Crim. P. 3(d).

Advisory Committee Note—2003 [M.R. Crim. P. 7(b).] The amendment replaces the modifying phrase "not punishable by life imprisonment" with the phrase "other than murder," since with the enactment of the crime of aggravated attempted murder, in violation of 17-A M.R.S. § 152-A (Supp. 2003) [P.L. 2001, ch. 413, § 2], the crime of murder is no longer the only crime punishable by life imprisonment, although murder remains the only crime for which waiver of indictment is precluded by statute. See 17-A M.R.S. § 9(2) (1983). [M.R. Crim. P. 7(c).] See Advisory Committee Note to M.R. Crim. P. 6(c) and (i). [M.R. Crim. P. 7(f).] See Advisory Committee Note to M.R. Crim. P. 3(f). See also Advisory Committee Note to M.R. Crim. P. 57.

Advisory Committee Note – March 2005 [M.R. Crim. P. 7(a) and (b).] The amendments remove the provisions that contemplate a case originating in the District Court that involves murder or a Class A, Class B, or Class C crime and the attendant bind-over proceeding. Further, the inclusion of Class D or Class E crimes in an indictment or information is made contingent upon the charging of a related Class C or higher crime in that same indictment or information. See also Advisory Committee Note to M.R. Crim. P. 3(a) and (b).

Advisory Note – June 2005 [ M.R. Crim. P. 7.] Rule 7, as originally amended by the order of March 24, 2005, is further amended at several points to specify that actions taken based on an information may also be taken based on a complaint, subject to compliance with the same procedures necessary to initiate or continue prosecution of an action by an information.

Advisory Note – June 2006 M.R. Crim. P. 7(e). The amendment replaces the term "offense" in the third paragraph with the term "crime". This reference to "offense" was overlooked when all similar references throughout Rule 7, including subdivision (e), were replaced with "crime" effective January 1, 2004. See Me. Rptr., 832-845 A.2d XLIX, LIV-LV.