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Last
reviewed and edited June 24, 2005
Last amended
July 1, 2002
TABLE OF RULES
ARTICLE I. GENERAL PROVISIONS
RULE:
101. SCOPE.
102. PURPOSE AND
CONSTRUCTION.
103. RULINGS ON
EVIDENCE.
104. PRELIMINARY
QUESTIONS.
105. LIMITED
ADMISSIBILITY.
106. REMAINDER
OF OR RELATED WRITINGS OR RECORDED STATEMENTS.
ARTICLE II. JUDICIAL
NOTICE
201. JUDICIAL
NOTICE OF ADJUDICATIVE FACTS.
ARTICLE III.
PRESUMPTIONS
301. PRESUMPTIONS
IN GENERAL IN CIVIL ACTIONS AND PROCEEDINGS.
302. PRESUMPTION
OF LEGITIMACY.
303. PRESUMPTIONS
IN CRIMINAL CASES.
ARTICLE IV. RELEVANCY
AND ITS LIMITS
401. DEFINITION
OF ÒRELEVANT EVIDENCE.Ó
402. RELEVANT
EVIDENCE GENERALLY ADMISSIBLE; IRRELEVANT EVIDENCE INADMISSIBLE.
403. EXCLUSION
OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE, CONFUSION, OR WASTE OF TIME.
404. CHARACTER
EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS; OTHER CRIMES.
405. METHODS OF
PROVING CHARACTER.
406. HABIT;
ROUTINE PRACTICE.
407. SUBSEQUENT
REMEDIAL MEASURES; NOTIFICATION OF DEFECT.
408. COMPROMISE
AND OFFERS TO COMPROMISE.
409. PAYMENT OF
MEDICAL AND SIMILAR EXPENSES.
410. WITHDRAWN
PLEAS AND OFFERS.
411. LIABILITY
INSURANCE.
412. PAST SEXUAL
BEHAVIOR OF VICTIM.
ARTICLE V. PRIVILEGES
501. PRIVILEGES
RECOGNIZED ONLY AS PROVIDED.
502. LAWYER-CLIENT
PRIVILEGE.
503. PHYSICIAN
AND PSYCHOTHERAPIST-PATIENT PRIVILEGE.
504. HUSBAND-WIFE
PRIVILEGE.
505. RELIGIOUS
PRIVILEGE.
506. POLITICAL
VOTE.
507. TRADE
SECRETS.
508. SECRETS
OF STATE AND OTHER OFFICIAL INFORMATION; GOVERNMENTAL PRIVILEGES.
509. IDENTITY
OF INFORMER.
510. WAIVER
OF PRIVILEGE BY VOLUNTARY DISCLOSURE.
511. PRIVILEGED
MATTER DISCLOSED UNDER COMPULSION OR WITHOUT OPPORTUNITY TO CLAIM PRIVILEGE
512. COMMENT
UPON OR INFERENCE FROM CLAIM OF PRIVILEGE IN CRIMINAL CASES; INSTRUCTION.
513. CLAIM
OF PRIVILEGE IN CIVIL CASES.
ARTICLE VI. WITNESSES
601. COMPETENCY
IN GENERAL; DISQUALIFICATION.
602. LACK
OF PERSONAL KNOWLEDGE.
603. OATH
OR AFFIRMATION.
604. INTERPRETERS.
605. COMPETENCY
OF JUDGE AS WITNESS.
606. COMPETENCY
OF JUROR AS WITNESS.
607. WHO
MAY IMPEACH.
608. EVIDENCE
OF CHARACTER AND CONDUCT OF WITNESS.
609. IMPEACHMENT
BY EVIDENCE OF CONVICTION OF CRIME.
610. RELIGIOUS
BELIEFS OR OPINIONS.
611. MODE
AND ORDER OF INTERROGATION AND PRESENTATION.
612. WRITING
OR OBJECT USED TO REFRESH MEMORY.
613. PRIOR
STATEMENTS OF WITNESS.
614. CALLING
AND INTERROGATION OF WITNESSES BY COURT.
615. EXCLUSION
OF WITNESSES.
616. ILLUSTRATIVE
AIDS.
ARTICLE VII. OPINIONS AND EXPERT TESTIMONY
701. OPINION
TESTIMONY BY LAY WITNESSES.
702. TESTIMONY
BY EXPERTS.
703. BASIS
OF OPINION TESTIMONY BY EXPERTS.
704. OPINION
ON ULTIMATE ISSUE.
705. DISCLOSURE
OF FACTS OR DATA UNDERLYING EXPERT OPINION.
706. COURT
APPOINTED EXPERTS
ARTICLE VIII. HEARSAY
801. DEFINITIONS.
802. HEARSAY
RULE.
803. HEARSAY
EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL.
804. HEARSAY
EXCEPTIONS; DECLARANT UNAVAILABLE.
805. HEARSAY
WITHIN HEARSAY.
806. ATTACKING
AND SUPPORTING CREDIBILITY OF DECLARANT.
ARTICLE IX. AUTHENTICATION AND IDENTIFICATION
901. REQUIREMENT
OF AUTHENTICATION OR IDENTIFICATION.
902. SELF-AUTHENTICATION.
903. SUBSCRIBING
WITNESSÕ TESTIMONY UNNECESSARY.
ARTICLE X. CONTENTS OF WRITINGS,
RECORDINGS, AND
PHOTOGRAPHS
1001. DEFINITIONS.
1002. REQUIREMENT
OF ORIGINAL.
1003. RESERVED.
1004. ADMISSIBILITY
OF OTHER EVIDENCE OF CONTENTS.
1005. PUBLIC
RECORDS.
1006. SUMMARIES.
1007. TESTIMONY
OR WRITTEN ADMISSION OF PARTY.
1008. FUNCTIONS
OF COURT AND JURY.
ARTICLE XI. MISCELLANEOUS RULES
1101. APPLICABILITY
OF RULES.
1102. TITLE.
These
rules govern proceedings in the courts of this state, to the extent and with
the exceptions stated in Rule 1101.
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
(a) Effect of erroneous ruling. Error may
not be predicated upon a ruling which admits or excludes evidence unless a
substantial right of the party is affected, and
(1) Objection. In case the ruling is one
admitting evidence, a timely objection or motion to strike appears of record,
stating the specific ground of objection, if the specific ground was not
apparent from the context; or
(2) Offer of proof. In case the ruling is
one excluding evidence, the substance of the evidence was made known to the
court by offer or was apparent from the context within which questions were
asked.
(b) Record of offer and ruling. The court
may add any other or further statement which shows the character of the
evidence, the form in which it was offered, the objection made, and the ruling
thereon. It may direct the making of an offer in question and answer form.
(c) Effect of pretrial ruling. A pretrial
objection to or proffer of evidence must be timely renewed at trial unless the
court states on the record, or the context clearly demonstrates, that a ruling
on the objection or proffer is final.
(d) Hearing of jury. In jury cases,
proceedings shall be conducted, to the extent practicable, so as to prevent
inadmissible evidence from being suggested to the jury by any means, such as
making statements or offers of proof or asking questions in the hearing of the
jury.
(e) Obvious error. Nothing in this rule
precludes taking notice of obvious errors affecting substantial rights although
they were not brought to the attention of the court
(a) Questions of admissibility generally.
Preliminary questions concerning the qualification of a person to be a witness,
the existence of a privilege, or the admissibility of evidence shall be
determined by the court, subject to the provisions of subdivision (b). In
making this determination it is not bound by the rules of evidence except those
with respect to privileges and on questions arising in hearings on motions to
suppress evidence and the like.
(b) Relevancy conditioned on fact. When the
relevancy of evidence depends upon the fulfillment of a condition of fact, the
court shall admit it upon the introduction of evidence sufficient to support a
finding that the condition has been fulfilled. The court has discretion to
admit evidence conditionally upon the representation that its relevancy will be
established by evidence subsequently offered.
(c) Hearing of jury. Hearings on the
admissibility of confessions shall in all cases be conducted out of the hearing
of the jury. Hearings on other preliminary matters shall be so conducted when
the interests of justice require or, when an accused is a witness, and so
requests.
(d) Testimony by accused. The accused does
not, by testifying upon a preliminary matter, become subject to
cross-examination as to other issues in the case.
(e) Weight and credibility. This rule does
not limit the right of a party to introduce before the jury evidence relevant
to weight or credibility.
When
evidence which is admissible as to one party or for one purpose but not
admissible as to another party or for another purpose is admitted, the court
upon request shall restrict the evidence to a proper scope and instruct the
jury accordingly. In a criminal case tried to a jury evidence inadmissible as
to one defendant shall not be admitted as to other defendants unless all
references to the defendant as to whom it is inadmissible have been effectively
deleted.
When
a writing or recorded statement or part thereof is utilized in court by a
party, an adverse party has the right upon request to inspect it. The court on
motion of the adverse party may require the introduction at that time of the
writing or recorded statement or any part thereof or any other writing or
recorded statement which ought in fairness to be then considered.
(a) Scope of rule. This rule governs only
judicial notice of adjudicative facts.
(b) Kinds of facts. A judicially noticed
fact must be one not subject to reasonable dispute in that it is either (1)
generally known within the territorial jurisdiction of the trial court or (2)
capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.
(c) When discretionary. A court may take
judicial notice, whether requested or not.
(d) When mandatory. A court shall take
judicial notice if requested by a party and supplied with the necessary
information.
(e) Opportunity to be heard. A party is
entitled upon timely request to an opportunity to be heard as to the propriety
of taking judicial notice and the tenor of the matter noticed. In the absence
of prior notification, the request may be made after judicial notice has been
taken.
(f) Time of taking notice. Judicial notice
may be taken at any stage of the proceeding.
(g) Instructing jury. The court shall
instruct the jury to accept as conclusive any fact judicially noticed.
(a) Effect. In all civil actions
and proceedings, except as otherwise provided by statute or by these rules, a
presumption imposes on the party against whom it is directed the burden of
proving that the nonexistence of the presumed fact is more probable than its
existence.
(b) Prima facie evidence. A
statute providing that a fact or group of facts is prima facie evidence of
another fact establishes a presumption within the meaning of this rule.
(c) Inconsistent
presumptions. If two presumptions arise which are conflicting with each other,
the court shall apply the presumption which is founded on the weightier
considerations of policy and logic. If there is no such preponderance, both
presumptions shall be disregarded.
Whenever
it is established in an action that a child was born to or conceived by a woman
while she was lawfully married, the party asserting the illegitimacy of the
child has the burden of producing evidence and the burden of persuading the
trier of fact beyond a reasonable doubt of such illegitimacy.
(a) Scope. Except as
otherwise provided by statute, in criminal cases presumptions against an
accused, recognized at common law or created by statute, including statutory
provisions that certain facts are prima facie evidence of other facts or of
guilt, are governed by this rule.
(b) Submission to jury. The
court is not authorized to direct the jury to find a presumed fact against the
accused. The court may submit the question of guilt or of the existence of the
presumed fact to the jury, if, but only if, a reasonable juror on the evidence
as a whole, including the evidence of the basic facts, could find guilt or the
presumed fact beyond a reasonable doubt.
(c) Instructing the jury.
Whenever the existence of a presumed fact against the accused is submitted to
the jury, the court in instructing the jury should avoid charging in terms of a
presumption. The charge shall include an instruction to the effect that the
jurors have a right to draw reasonable inferences from facts proved beyond a
reasonable doubt and may convict the accused in reliance upon an inference of
fact if they conclude that such inference is valid and if the inference
convinces them of guilt beyond a reasonable doubt and not otherwise.
"Relevant
evidence" means evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.
RULE
402. RELEVANT EVIDENCE GENERALLY
ADMISSIBLE;
All
relevant evidence is admissible, except as limited by constitutional
requirements or as otherwise provided by statute or by these rules or by other
rules applicable in the courts of this state. Evidence which is not relevant is
not admissible.
Although
relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.
(a) Character evidence
generally. Evidence of a person's character or a trait of character is not
admissible for the purpose of proving that the person acted in conformity
therewith on a particular occasion, except:
(1) Character of accused.
Evidence of a pertinent trait of character offered by an accused, or by the
prosecution to rebut the same;
(2) Character of witness.
Evidence of the character of a witness, as provided in Rules 607, 608 and 609.
(b) Other crimes, wrongs,
or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show that the person acted in conformity
therewith.
(a) Reputation. In all
cases in which evidence of character or a trait of character of a person is
admissible, proof may be made by testimony as to reputation. On
cross-examination, inquiry is allowable into relevant specific instances of
conduct.
(b) Specific instances of
conduct. In cases in which character or a trait of character of a person is an
essential element of a charge, claim, or defense, proof may also be made of
specific instances of that person's conduct.
(a) Admissibility. Evidence of the habit of
a person or of the routine practice of an organization, whether corroborated or
not and regardless of the presence of eyewitnesses, is relevant to prove that
the conduct of the person or organization on a particular occasion was in
conformity with the habit or routine practice.
(b) Method of proof. Habit or routine
practice may be proved by specific instances of conduct sufficient in number to
warrant a finding that the habit existed or that the practice was routine.
RULE
407. SUBSEQUENT REMEDIAL MEASURES;
(a) Subsequent remedial measures. When,
after an injury or harm allegedly caused by an event, measures are taken that,
if taken previously, would have made the injury or harm less likely to occur,
evidence of the subsequent measures is not admissible to prove negligence,
culpable conduct, a defect in a product, a defect in a product's design, or a
need for a warning or instruction.
This rule does not require exclusion of evidence of subsequent measures
when offered for another purpose such as proving ownership, control or
feasibility of precautionary measures, if controverted, or impeachment.
(b) Notification of defect. A written
notification by a manufacturer of any defect in a product produced by such
manufacturer to purchasers thereof is admissible against the manufacturer on
the issue of existence of the defect to the extent that it is relevant.
(a) Evidence of (1) furnishing or offering
or promising to furnish, or (2) accepting or offering or promising to
accept, a valuable consideration in compromise or attempting to compromise
a claim which was disputed as to either validity or amount, is not admissible
to prove liability for, invalidity of, or amount of the claim or any other
claim. Evidence of conduct or statements made in compromise negotiations
or in mediation is also not admissible on any substantive issue in dispute
between the parties.
(b) Evidence of conduct or statements by
any party or mediator at a court-sponsored domestic relations mediation session
is not admissible for any purpose.
Evidence
of furnishing or offering or promising to pay medical, hospital, or similar
expenses occasioned by an injury is not admissible to prove liability for the
injury.
Except
as otherwise provided, evidence of a plea, later withdrawn, of guilty or nolo
contendere, or of an offer so to plead to the crime charged or any other crime,
or of statements made in connection with any of the foregoing pleas or offers,
is not admissible in any civil or criminal action, case, or proceeding against
the person who made the plea or offer.
RULE
411.
Evidence
that a person was or was not insured against liability is not admissible upon
the issue whether the person acted negligently or otherwise wrongfully.
(a) In a civil or criminal case in which a
person is accused of sexual misconduct toward an individual, reputation or
opinion evidence of past sexual behavior of the alleged victim of such
misconduct is not admissible.
(b) In a criminal case in which a person is
accused of sexual misconduct toward a victim the only evidence of the alleged
victim's past sexual behavior that may be admitted is the following:
(1) Evidence, other than reputation or
opinion evidence, of sexual behavior with persons other than the accused,
offered by the accused upon the issue of whether the accused was or was not,
with respect to the alleged victim, the source of semen or injury; or
(2) Evidence, other than reputation or
opinion evidence, of sexual behavior with the accused offered by the accused on
the issue of whether the alleged victim consented to the sexual behavior with
respect to which the accused is charged.
(3) Evidence the exclusion of which would
violate the constitutional rights of the defendant.
(c) In a civil case in which a person is
accused of sexual misconduct toward an individual, evidence of specific
instances of sexual behavior by the individual may only be admitted if the
court finds that the probative value of such evidence on a controverted issue
outweighs the danger of unfair prejudice, confusion of the issues, misleading
the jury and unwarranted harm to the individual.
Except
as otherwise provided by Constitution or statute or by these or other rules
promulgated by the Supreme Judicial Court of this state no person has a
privilege to:
1. Refuse to be a
witness; or
2. Refuse to
disclose any matter; or
3. Refuse to produce
any object or writing; or
4. Prevent
another being a witness or disclosing any matter or producing any object or
writing.
(a) Definitions. As used in
this rule:
(1) A "client" is
a person, public officer, or corporation, association, or other organization or
entity, either public or private, who is rendered professional legal services
by a lawyer, or who consults a lawyer with a view to obtaining professional
legal services from the lawyer.
(2) A "representative
of the client" is one having authority to obtain professional legal
services, or to act on advice rendered pursuant thereto, on behalf of the
client.
(3) A "lawyer" is
a person authorized, or reasonably believed by the client to be authorized, to
practice law in any state or nation.
(4) A "representative
of the lawyer" is one employed by the lawyer to assist the lawyer in the
rendition of professional legal services.
(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
professional legal services to the client or those reasonably necessary for the
transmission of the communication.
(b) General rule of
privilege. A client has a
privilege to refuse to disclose and to prevent any other person from disclosing
confidential communications made for the purpose of facilitating the rendition
of professional legal services to the client (1) between the client or the
client's representative and the client's lawyer or the lawyer's representative,
or (2) between the lawyer and the lawyer's representative, or (3) by the client
or the client's representative or the lawyer or a representative of the lawyer
to a lawyer or a representative of a lawyer representing another party in a
pending action and concerning a matter of common interest therein, or (4)
between representatives of the client or between the client and a
representative of the client, or (5) among lawyers and their representatives
representing the same client.
(c) Who may claim the
privilege. The privilege may be claimed by the client, the client's guardian or
conservator, the personal representative of a deceased client, or the
successor, trustee, or similar representative of a corporation, association or
other organization, whether or not in existence. The person who was the lawyer
or the lawyer's representative at the time of the communication is presumed to
have authority to claim the privilege but only on behalf of the client.
(d) Exceptions. There is no
privilege under this rule:
(1) Furtherance of crime or
fraud. If the services of the lawyer were sought or obtained to enable or aid
anyone to commit or plan to commit what the client knew or reasonably should
have known to be a crime or fraud; or
(2) Claimants through same
deceased client. As to a communication relevant to an issue between parties who
claim through the same deceased client, regardless of whether the claims are by
testate or intestate succession or by inter vivos transaction; or
(3) Breach of duty by a
lawyer or client. As to a communication relevant to an issue of breach of duty
by the lawyer to the lawyer's client or by the client to the client's lawyer;
or
(4) Document attested by
lawyer. As to a communication relevant to an issue concerning an attested
document to which the lawyer is an attesting witness; or
(5) Joint clients. As to a
communication relevant to a matter of common interest between two or more
clients if the communication was made by any of them to a lawyer retained or
consulted in common, when offered in an action between any of the clients; or
(6) Public officer or
agency. As to communications between a public officer or agency and its lawyers
unless the communications concern a pending investigation, claim or action and
the court determines that disclosure will seriously impair the ability of the
public officer or agency to process the claim or conduct a pending
investigation, litigation or proceeding in the public interest.
(a) Definitions. As used in
this rule:
(1) A "patient"
is a person who consults or is examined or interviewed by a physician or
psychotherapist.
(2) A "physician"
is a person authorized to practice medicine in any state or nation, or
reasonably believed by the patient so to be.
(3) A
"psychotherapist" is (A) a person authorized to practice medicine in
any state or nation, or reasonably believed by the patient so to be, while
engaged in the diagnosis or treatment of a mental or emotional condition,
including alcohol or drug addiction, or, (B) a person licensed or certified as
a psychologist or psychological examiner under the laws of any state or nation,
while similarly engaged.
(4) A communication is
"confidential" if not intended to be disclosed to third persons other
than those present to further the interest of the patient in the consultation,
examination, or interview, or persons reasonably necessary for the transmission
of the communication, or persons who are participating in the diagnosis and
treatment under the direction of the physician or psychotherapist, including
members of the patient's family.
(b) General rule of
privilege. A patient has a privilege to refuse to disclose and to prevent any
other person from disclosing confidential communications made for the purpose
of diagnosis or treatment of the patient's physical, mental or emotional
condition, including alcohol or drug addiction, among the patient, the
patient's physician or psychotherapist, and persons who are participating in
the diagnosis or treatment under the direction of the physician or
psychotherapist, including members of the patient's family.
(c) Privilege of accused.
When an examination of the mental condition of an accused in a criminal
proceeding is ordered by the court for the purpose of determining criminal
responsibility, the accused has a privilege to refuse to disclose and to
prevent any other person from disclosing any communication concerning the
offense charged, made in the course of the examination.
(d) Who may claim the
privilege. The privilege may be claimed by the patient, by the patient's
guardian or conservator, or by the personal representative of a deceased
patient. The person who was the physician or psychotherapist at the time of the
communication is presumed to have authority to claim the privilege but only on
behalf of the patient.
(e) Exceptions.
(1) Proceedings for
hospitalization. There is no privilege under this rule for communications
relevant to an issue in proceedings to hospitalize the patient for mental illness,
if the psychotherapist in the course of diagnosis or treatment has determined
that the patient is in need of hospitalization.
(2) Examination by order of
court. Except as otherwise provided in subdivision (c), if the court orders an
examination of the physical, mental or emotional condition of a patient,
whether a party or a witness, communications made in the course thereof are not
privileged under this rule with respect to the particular purpose for which the
examination is ordered unless the court orders otherwise.
(3) Condition an element of
claim or defense. There is no privilege under this rule as to communications
relevant to an issue of the physical, mental or emotional condition of the
patient in any proceeding in which the condition of the patient is an element
of the claim or defense of the patient, or of any party claiming, through or
under the patient or because of the patient's condition, or claiming as a
beneficiary of the patient, through a contract to which the patient is or was a
party, or after the patient's death, in any proceeding in which any party puts
the condition in issue.
(a) Definition. A
communication is confidential if it is made privately by any person to his or
her spouse and is not intended for disclosure to any other person.
(b) General rule of
privilege. A married person has a privilege to prevent his or her spouse from
testifying as to any confidential communication from such person to the spouse.
(c) Who may claim the
privilege. The privilege may be claimed by the person who made the
communication or by the spouse in his or her behalf. The authority of the
spouse to do so is presumed.
(d) Exceptions. There is no
privilege under this rule in a proceeding in which one spouse is charged with a
crime against the person or property of (1) the other, (2) a child of either,
(3) any person residing in the household of either, or (4) a third person
committed in the course of committing a crime against any of them; or in a
civil proceeding in which the spouses are adverse parties.
(a) Definitions. As used in
this rule:
(1) A "member of the
clergy" is a minister, priest, rabbi, accredited Christian Science
practitioner, or other similar functionary of a religious organization, or an
individual reasonably believed so to be by the person consulting that
individual.
(2) A communication is
"confidential" if made privately and not intended for further
disclosure except to other persons present in furtherance of the purpose of the
communication.
(b) General rule of
privilege. A person has a privilege to refuse to disclose and to prevent
another from disclosing a confidential communication by the person to a member
of the clergy acting as spiritual adviser.
(c) Who may claim the
privilege. The privilege may be claimed by the person, by the person's guardian
or conservator, or by the person's personal representative if the person is
deceased. The person who was the member of the clergy at the time of the
communication is presumed to have authority to claim the privilege but only on
behalf of the communicant.
(a) General rule of
privilege. Every person has a privilege to refuse to disclose the tenor of the
person's vote at a political election conducted by secret ballot.
(b) Exceptions. This
privilege does not apply if the court finds that the vote was cast illegally or
determines that the disclosure should be compelled pursuant to the election
laws of the state.
A
person has a privilege, which may be claimed by the person or the person's
agent or employee, to refuse to disclose and to prevent other persons from
disclosing a trade secret owned by the person, if the allowance of the
privilege will not tend to conceal fraud or otherwise work injustice. When
disclosure is directed, the court shall take such protective measures as the
interest of the holder of the privilege and of the parties and the furtherance
of justice may require.
(a) Federal privilege. If
the law of the United States creates a governmental privilege that the courts
of this state must recognize under the Constitution of the United States, the
privilege may be claimed as provided by the law of the United States.
(b) Other governmental
privilege. No other governmental privilege is recognized except as created by
the Constitution or statutes of this state.
(c) Effect of sustaining
claim. If a claim of governmental privilege is sustained and it appears that a
party is thereby deprived of material evidence, the court shall make any
further orders which the interests of justice require, including striking the
testimony of a witness, declaring a mistrial, finding upon an issue as to which
the evidence is relevant, or dismissing the action.
(a) Rule of privilege. The
United States, a state or subdivision thereof, or any foreign country has a
privilege to refuse to disclose the identity of a person who has furnished
information relating to or assisting in an investigation of a possible
violation of a law to a law enforcement officer or member of a legislative
committee or its staff conducting an investigation.
(b) Who may claim. The
privilege may be claimed by an appropriate representative of the public entity
to which the information was furnished.
(c) Exceptions.
(1) Voluntary Disclosure;
Informer a Witness. No privilege exists under this rule if the identity of the
informer or the informer's interest in the subject matter of the informer's
communication has been disclosed to those who would have cause to resent the
communication by a holder of the privilege or by the informer's own action, or
if the informer appears as a witness for the state.
(2) Testimony on Relevant
Issue. If it appears in the case that an informer may be able to give testimony
relevant to any issue in a civil or criminal case to which a public entity is a
party, and the informed public entity invokes the privilege, the court may give
the public entity an opportunity to show in camera and on the record facts
relevant to determining whether the informer can, in fact, supply that
testimony. The showing may be in the form of affidavits, but the court may
direct that testimony be taken if it finds that the matter cannot be resolved
satisfactorily upon affidavit. If the court finds there is a reasonable
probability that the informer can give relevant testimony, the court on motion
of a party or on its own motion may enter a conditional order for appropriate
relief, to be granted if the public entity elects not to disclose within the
time specified the identity of such informer. In a criminal case such relief
may include one or more of the following: granting the defendant additional
time or a continuance, relieving the defendant from making disclosures
otherwise required, prohibiting the prosecuting attorney from introducing
specified evidence, and dismissing charges. In a civil case the court may
provide any relief that the interests of justice require. Evidence submitted to
the court shall be sealed and preserved to be made available to the appellate
court in the event of an appeal, and a docket entry shall be made specifying
the form of such evidence but not its content or the identity of any declarant.
The contents shall not otherwise be revealed without consent of the informed
public entity. All counsel and parties are permitted to be present at every
stage of proceedings under this subdivision except at a showing in camera at
which only counsel for the public entity shall be permitted to be present.
A
person upon whom these rules confer a privilege against disclosure waives the
privilege if the person or the person's predecessor while holder of the
privilege voluntarily discloses or consents to disclosure of any significant
part of the privileged matter. This rule does not apply if the disclosure
itself is privileged.
A
claim of privilege is not defeated by a disclosure which was (a) compelled
erroneously or (b) made without opportunity to claim the privilege.
(a) Comment or inference
not permitted. The claim of a privilege, whether in the present proceeding or
upon a prior occasion, is not a proper subject of comment by judge or counsel
in a criminal case. No inference may be drawn therefrom.
(b) Claiming privilege
without knowledge of jury. In criminal cases tried to a jury, proceedings shall
be conducted, to the extent practicable, so as to facilitate the making of
claims of privilege without the knowledge of the jury.
(c) Jury instruction. Upon
request, any accused in a criminal case against whom the jury might draw an
adverse inference from a claim of privilege is entitled to an instruction that
no inference may be drawn therefrom.
(a) Comment or inference
permitted. The claim of a privilege by a party in a civil action or proceeding,
whether in the present proceeding or upon a prior occasion, is a proper subject
of comment by judge or counsel. An appropriate inference may be drawn
therefrom.
(b) Claim of privilege by
nonparty witness. The claim of a privilege by a nonparty witness in a civil
action or proceeding shall be governed by the provisions of Rule 512.
RULE
601. COMPETENCY IN GENERAL;
DISQUALIFICATION
(a) General rule of
competency. Every person is competent to be a witness except as otherwise
provided in these rules.
(b) Disqualification of
witness. A person is disqualified to be a witness if the court finds that (1)
the proposed witness is incapable of communicating concerning the matter so as
to be understood by the judge and jury either directly or through
interpretation by one who can understand the proposed witness, (2) the proposed
witness is incapable of understanding the duty of a witness to tell the truth,
(3) the proposed witness lacked any reasonable ability to perceive the matter
or (4) the proposed witness lacks any reasonable ability to remember the
matter. An interpreter is subject
to all the provisions of these rules relating to witnesses.
A
witness may not testify to a matter unless evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the matter.
Evidence to prove personal knowledge may, but need not, consist of the
testimony of the witness. This rule is subject to the provisions of Rule 703,
relating to opinion testimony by expert witnesses.
Before
testifying, every witness shall be required to declare that the witness will
testify truthfully, by oath or affirmation administered in a form calculated to
awaken the witness's conscience and impress the witness's mind with the
witness's duty to do so.
An
interpreter is subject to the provisions of these rules relating to
qualification as an expert and the administration of an oath or affirmation to
make a true translation.
The
judge presiding at the trial may not testify in that trial as a witness. No
objection need be made in order to preserve the point.
(a) At the trial. A member
of the jury may not testify as a witness before that jury in the trial of the
case in which the juror is sitting. If a juror is called so to testify, the
opposing party shall be afforded an opportunity to object out of the presence
of the jury.
(b) Inquiry into validity
of verdict or indictment. Upon an inquiry into the validity of a verdict or
indictment, a juror may not testify as to any matter or statement occurring
during the course of the jury's deliberations or to the effect of anything upon
that juror's or any other juror's mind or emotions as influencing the juror to
assent to or dissent from the verdict or indictment or concerning any juror's
mental processes in connection therewith, except that a juror may testify on
the question whether extraneous prejudicial information was improperly brought
to the jury's attention or whether any outside influence was improperly brought
to bear upon any juror. Nor may a juror's affidavit or evidence of any
statement by the juror concerning a matter about which the juror would be
precluded from testifying be received.
The
credibility of a witness may be attacked by any party, including the party
calling the witness.
(a) Reputation evidence of
character. The credibility of a witness may be attacked or supported by
evidence of reputation, but subject to these limitations: (1) the evidence may
refer only to character for truthfulness or untruthfulness, and (2) evidence of
truthful character is admissible only after the character of the witness for
truthfulness has been attacked by reputation evidence or otherwise.
(b) Specific instances of
conduct. Specific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness's credibility, other than conviction of
crime as provided in Rule 609, may not be proved by extrinsic evidence. They
may, however, in the discretion of the court, if probative of truthfulness or
untruthfulness, be inquired into on cross-examination of the witness (1)
concerning the witness's character for truthfulness or untruthfulness, or (2)
concerning the character for truthfulness or untruthfulness of another witness
as to which character the witness being cross-examined has testified.
The
giving of testimony, whether by an accused or by any other witness, does not
operate as a waiver of the accused's or the witness's privilege against
self-incrimination when examined with respect to matters which relate only to
credibility.
(a) General rule. For the
purpose of attacking the credibility of a witness, evidence that the witness
has been convicted of a specific crime is admissible but only if the crime (1)
was punishable by death or imprisonment for one year or more under the law
under which the witness was convicted, or (2) involved dishonesty or false
statement, regardless of the punishment. In either case admissibility shall
depend upon a determination by the court that the probative value of this
evidence on witness credibility outweighs any unfair prejudice to a criminal
defendant or to any civil party.
(b) Time limit. Evidence of
a conviction under this rule is admissible only if less than 15 years have
transpired since said conviction or less than 10 years have transpired since
termination of any incarceration period therefor.
(c) Effect of pardon,
annulment, or certificate of rehabilitation. Evidence of a conviction is not
admissible under this rule if the conviction has been the subject of a pardon,
annulment, certificate of rehabilitation, or other equivalent procedure.
(d) Juvenile adjudications.
Evidence of a juvenile adjudication in a proceeding open to the public may be
admitted under this rule. Evidence of a juvenile adjudication in a proceeding
from which the public was excluded may be admitted under this rule only in
another juvenile proceeding from which the public is excluded.
Evidence
of the beliefs or opinions of a witness on matters of religion is not
admissible for the purpose of showing that by reason of their nature the
witness's credibility is impaired or enhanced.
(a) Control by court. The
court shall exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence on direct and cross-examination
so as to (1) make the interrogation and presentation effective for the
ascertainment of the truth, (2) avoid needless consumption of time, and (3)
protect witnesses from harassment or undue embarrassment.
(b) Scope of
cross-examination. A witness may be cross-examined on any matter relevant to
any issue in the case, including credibility. In the interests of justice, the
judge may limit cross-examination with respect to matters not testified to on
direct examination.
(c) Leading questions.
Leading questions should not be used on the direct examination of a witness
except as may be necessary to develop the witness's testimony. Ordinarily
leading questions should be permitted on cross-examination. A party may
interrogate any unwilling or hostile witness by leading questions. A party may
call an adverse party or an officer, director, or managing agent of the state
or any political subdivision thereof or of a public or private corporation or
of an association or body politic which is an adverse party, and interrogate
such a witness by leading questions and contradict and impeach the witness in
all respects as if the witness had been called by the adverse party, and the
witness thus called may be contradicted and impeached by or on behalf of the
adverse party also, and may be cross-examined by the adverse party only upon
the subject matter of the witness's examination in chief. A witness examined in
chief only as to the signature to or execution of a paper may be cross-examined
only as to such signature or execution.
(a) While testifying. If,
while testifying, a witness uses a writing or object to refresh the witness's
memory, an adverse party is entitled to have the writing or object produced at
the trial, hearing, or deposition in which the witness is testifying.
(b) Before testifying. If,
before testifying, a witness uses a writing or object to refresh the witness's
memory for the purpose of testifying and the court in its discretion determines
that the interests of justice so require, an adverse party is entitled to have
the writing or object produced, if practicable, at the trial, hearing, or
deposition in which the witness is testifying.
(c) Terms and conditions of
production and use. A party entitled to have a writing or object produced under
this rule is entitled to inspect it, to cross-examine the witness thereon, and
to introduce in evidence those portions which relate to the testimony of the
witness. If production of the writing or object at the trial, hearing, or
deposition is impracticable, the court may order it made available for
inspection. If it is claimed that the writing or object contains matters not
related to the subject matter of the testimony the court shall examine the
writing or object in camera, excise any portions not so related, and order
delivery of the remainder to the party entitled thereto. Any portion withheld
over objections shall be preserved and made available to the appellate court in
the event of an appeal. If a writing or object is not produced, made available
for inspection, or delivered pursuant to order under this rule, the court shall
make any order justice requires, except that in criminal cases when the state
elects not to comply, the order shall be one striking the testimony or, if the
court in its discretion determines that the interests of justice so require,
declaring a mistrial.
In
examining a witness concerning a prior statement made by the witness, whether
written or not, the statement need not be shown nor its contents disclosed to
the witness at that time, but on request the same shall be shown or disclosed
to opposing counsel.
(a) Calling by court. The
court may, on its own motion when necessary in the interests of justice or at
the suggestion of a party, call witnesses, and all parties are entitled to
cross-examine witnesses thus called.
(b) Interrogation by court.
The court may interrogate witnesses, whether called by itself or by a party.
(c) Objections. Objections
to the calling of witnesses by the court or to interrogation by it may be made
at the time or at the next available opportunity out of the hearing of the
jury.
At
the request of a party the court may order witnesses excluded so that they
cannot hear the testimony of other witnesses, and it may make the order of its
own motion. This rule does not authorize exclusion of (1) a party who is a
natural person, or (2) an officer or employee of a party which is not a natural
person designated as its representative by its attorney, or (3) a person whose
presence is shown by a party to be essential to the presentation of his cause.
(a) Subject to the provisions hereof, depictions and objects not admissible in evidence may be used to illustrate the testimony of witnesses or the arguments of counsel.
(b) The court in its
discretion may condition, restrict or exclude the use of any illustrative aid
to avoid the risk of unfair prejudice, surprise, confusion or waste of time.
(c) Consistent with the
constitutional rights of criminal defendants, illustrative aids prepared before
use shall be disclosed to opposing counsel before use so as to permit
reasonable opportunity for objection under Subsection (b).
(d) Illustrative aids shall
not accompany the jury during deliberations unless by consent of all parties or
order of court on good cause shown.
(e) Illustrative aids shall
remain the property of the party proposing them providing that:
i. during the
trial they may be used by any party; and
ii. on request of any
party they shall be preserved for the record of further proceedings or on
appeal.
If
the witness is not testifying as an expert, the witness's testimony in the form
of opinions or inferences is limited to those opinions or inferences which are
(a) rationally based on the perception of the witness and (b) helpful to a
clear understanding of the witness's testimony or the determination of a fact
in issue.
RULE
702.
If
scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise.
The
facts or data in the particular case upon which an expert bases an opinion or
inference may be those perceived by or made known to the expert at or before
the hearing. If of a type reasonably relied upon by experts in the particular
field in forming opinions or inferences upon the subject, the facts or data
need not be admissible in evidence.
Testimony
in the form of an opinion or inference otherwise admissible is not objectionable
because it embraces an ultimate issue to be decided by the trier of fact.
(a) Disclosure of
Underlying Facts. The expert may testify in terms of opinion or inference and
give reasons therefor without first testifying to the underlying facts or data,
unless the court requires otherwise. The expert may in any event be required to
disclose the underlying facts or data on cross-examination.
(b) Objection. An adverse
party may object to the testimony of an expert on the ground that the expert
does not have a sufficient basis for expressing an opinion. Counsel may before
the witness gives an opinion be allowed to conduct in the absence of the jury a
voir dire examination directed to the underlying facts or data on which the
opinion is based. If a prima facie case is made that the expert does not have
sufficient basis for the expert's opinion, the opinion is inadmissible unless
the party offering the testimony first establishes the underlying facts or
data.
(a) Appointment. The court
may on its own motion or on the motion of any party enter an order to show
cause why expert witnesses should not be appointed, and may request the parties
to submit nominations. The court may appoint any expert witnesses agreed upon
by the parties, and may appoint expert witnesses of its own selection. An
expert witness shall not be appointed by the court unless the expert consents
to act. A witness so appointed shall be informed of the witness's duties by the
court in writing, a copy of which shall be filed with the clerk, or at a
conference in which the parties shall have opportunity to participate. A
witness so appointed shall advise the parties of the witness's findings, if any;
the witness's deposition may be taken by any party; and the witness may be
called to testify by the court or any party. Such a witness shall be subject to
cross-examination by each party, including a party calling the witness.
(b) Compensation. Expert
witnesses so appointed are entitled to reasonable compensation in whatever sum
the court may allow. Except as otherwise provided by law, the compensation
shall be paid by the parties in such proportion and at such time as the court
directs, and thereafter charged in like manner as other costs.
(c) Disclosure of
appointment. In the exercise of its discretion, the court may authorize
disclosure to the jury of the fact that the court appointed the expert witness.
(d) Parties' experts of own
selection. Nothing in this rule limits the parties in calling witnesses of
their own selection.
The
following definitions apply under this article:
(a) Statement. A
"statement" is (1) an oral or written assertion or (2) nonverbal
conduct of a person, if it is intended by the person as an assertion.
(b) Declarant. A
"declarant" is a person who makes a statement.
(c) Hearsay.
"Hearsay" is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted.
(d) Statements which are
not hearsay. A statement is not hearsay if:
(1) Prior statement by
witness. The declarant testifies at the trial or hearing and is subject to
cross-examination concerning the statement, and the statement is (A)
inconsistent with the witness's testimony, and was given under oath subject to
the penalty of perjury at a trial, hearing or other proceeding, or in a
deposition; or (B) one of identification of a person made after perceiving the
person. A prior consistent statement by the declarant, whether or not under
oath, is admissible only to rebut an express or implied charge against the
declarant of recent fabrication or improper influence or motive.
(2) Admission by
party-opponent. The statement is offered against a party and is (A) the party's
own statement, in either an individual or a representative capacity or (B) a
statement of which the party has manifested an adoption or belief in its truth,
or (C) a statement by a person authorized by the party to make a statement
concerning the subject, but not to the principal or employer himself, or (D) a
statement by the party's agent or servant concerning a matter within the scope
of the agency or employment, but not to the principal or employer, made during
the existence of the relationship, or (E) a statement by a co-conspirator of a
party during the course and in furtherance of the conspiracy. The contents of
the statement shall be considered, but are not alone sufficient to establish
the declarant's authority under subdivision (C), the agency or employment
relationship and scope thereof under subdivision (D), or the existence of the
conspiracy and the participation therein of the declarant and the party against
whom the statement is offered under subdivision (E).
Hearsay
is not admissible except as provided by law or by these rules. The words "as provided by
law" include applicable state and federal statutes, the Maine Rules of
Civil Procedure and the Maine Rules of Criminal Procedure.
The
following are not excluded by the hearsay rule, even though the declarant is
available as a witness:
(1) Present sense impression.
A statement describing or explaining an event or condition made while the
declarant was perceiving the event or condition, or immediately thereafter.
(2) Excited utterance. A
statement relating to a startling event or condition made while the declarant
was under the stress of excitement caused by the event or condition.
(3) Then existing mental,
emotional, or physical condition. A statement of the declarant's then existing
state of mind, emotion, sensation, or physical condition such as intent, plan,
motive, design, mental feeling, pain, and bodily health, but not including a
statement of memory or belief to prove the fact remembered or believed unless
it relates to the execution, revocation, identification, or terms of
declarant's will.
(4) Statements for purposes
of medical diagnosis or treatment. Statements made for purposes of medical
diagnosis or treatment and describing medical history, or past or present
symptoms, pain, or sensations, or the inception or general character of the
cause or external source thereof insofar as reasonably pertinent to diagnosis
or treatment.
(5) Recorded recollection.
A memorandum or record concerning a matter about which a witness once had
knowledge but now has insufficient recollection to enable the witness to testify
fully and accurately, shown to have been made or adopted by the witness when
the matter was fresh in the witness's memory and to reflect that knowledge
correctly. If admissible, the memorandum or record may be read into evidence
but shall not be received as an exhibit unless offered by an adverse party.
(6) Records of regularly
conducted business. A memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, opinions, or diagnoses, made at or near the
time by, or from information transmitted by, a person with knowledge, if kept
in the course of a regularly conducted business, and if it was the regular
practice of that business to make the memorandum, report, record, or data
compilation, all as shown by the testimony of the custodian or other qualified
witness, or by certification that complies with Rule 902(11), Rule 903(12) or a
statute permitting certification, unless the source of information or the
method or circumstances of preparation indicate lack of trustworthiness. The
term "business" as used in this paragraph includes business,
institution, association, profession, occupation, and calling of every kind,
whether or not conducted for profit.
(7) Absence of entry in
records kept in accordance with the provisions of paragraph (6). Evidence that
a matter is not included in the memoranda, reports, records, or data
compilations, in any form, kept in accordance with the provisions of paragraph
(6), to prove the nonoccurrence or nonexistence of the matter, if the matter was
of a kind of which a memorandum, report, record, or data compilation was
regularly made and preserved, unless the sources of information or other
circumstances indicate lack of trustworthiness.
(8) Public records and
reports.
(A)
To the extent not otherwise provided in (B), records, reports, statements, or
data compilations in any form of a public office or agency setting forth its
regularly conducted and regularly recorded activities, or matters observed
pursuant to duty imposed by law and as to which there was a duty to report, or
factual findings resulting from an investigation made pursuant to authority
granted by law.
(B)
The following are not within this exception to the hearsay rule: (i)
investigative reports by police and other law enforcement personnel; (ii)
investigative reports prepared by or for a government, a public office or an
agency when offered by it in a case in which it is a party; (iii) factual
findings offered by the state in criminal cases; (iv) factual findings
resulting from special investigation of a particular complaint, case, or
incident; (v) any matter as to which the sources of information or other
circumstances indicate lack of trustworthiness.
(9) Records of vital
statistics. Records or data compilations, in any form, of births, fetal deaths,
deaths, or marriages, if the report thereof was made to a public office
pursuant to requirements of law.
(10) Absence of public record or entry.
To prove the absence of a record, report, statement, or data compilation, in
any form, or the nonoccurrence or nonexistence of a matter of which a record,
report, statement, or data compilation, in any form, was regularly made and
preserved by a public office or agency, evidence in the form of a certification
in accordance with Rule 902, or testimony that diligent search failed to
disclose the record, report, statement, or data compilation, or entry.
(11) Records of religious organizations.
Statements of births, marriages, divorces, deaths, legitimacy, ancestry,
relationship by blood or marriage, or other similar facts of personal or family
history, contained in a regularly kept record of a religious organization.
(12) Marriage, baptismal, and similar
certificates. Statements of fact contained in a certificate that the maker
performed a marriage or other ceremony or administered a sacrament, made by a
clergyman, public official, or other person authorized by the rules or
practices of a religious organization or by law to perform the act certified,
and purporting to have been issued at the time of the act or within a
reasonable time thereafter.
(13) Family records. Statements of fact
concerning personal or family history contained in family Bibles, genealogies,
charts, engravings on rings, inscriptions on family portraits, engravings on
urns, crypts, or tombstones, or the like.
(14) Records of documents affecting an
interest in property. The record of a document purporting to establish or
affect an interest in property, as proof of the content of the original
recorded document and its execution and delivery by each person by whom it
purports to have been executed, if the record is a record of a public office
and an applicable statute authorizes the recording of documents of that kind in
that office.
(15) RESERVED.
(16) Statements in ancient documents.
Statements in a document in existence twenty years or more the authenticity of
which is established.
(17) Market reports, commercial
publications. Market quotations, tabulations, lists, directories, or other
published compilations, generally used and relied upon by the public or by
persons in particular occupations.
(18) Learned treatises. To the extent
called to the attention of an expert witness upon cross-examination, statements
contained in published treatises, periodicals, or pamphlets on a subject of
history, medicine, or other science or art, established as a reliable authority
by the testimony or admission of the witness or by other expert testimony or by
judicial notice. If admissible, the statements may be read into evidence but
may not be received as exhibits.
(19) Reputation concerning personal or
family history. Reputation among members of a person's family by blood,
adoption, or marriage, or among the person's associates, or in the community,
concerning a person's birth, adoption, marriage, divorce, death, legitimacy,
relationship by blood, adoption, or marriage, ancestry, or other similar fact
of the person's personal or family history.
(20) Reputation concerning boundaries or
general history. Reputation in a community, arising before the controversy, as
to boundaries of or customs affecting lands in the community, and reputation as
to events of general history important to the community or state or nation in
which located.
(21) Reputation as to character.
Reputation of a person's character among associates or in the community.
(22) Judgment of previous conviction.
Evidence of a final judgment, entered after a trial or upon a plea of guilty,
adjudging a person guilty of a crime punishable by death or imprisonment of one
year or more, to prove any fact essential to sustain the judgment, but not
including, when offered by the state in a criminal prosecution for purposes
other than impeachment, judgments against persons other than the accused.
(23) Judgment as to personal, family or
general history, or boundaries. Judgments as proof of matters of personal,
family or general history, or boundaries, essential to the judgment, if the
same would be provable by evidence of reputation.
(a) Definition of
unavailability. "Unavailability as a witness" includes situation in
which the declarant:
(1) is exempted by ruling
of the court on the ground of privilege from testifying concerning the subject
matter of the declarant's statement; or
(2) persists in refusing to
testify concerning the subject matter of the declarant's statement despite an
order of the court to do so; or
(3) testifies to a lack of
memory of the subject matter of the declarant's statement; or
(4) is unable to be present
or to testify at the hearing because of death or then existing physical or
mental illness or infirmity; or
(5) is absent from the
hearing and the proponent of the declarant's statement has been unable to
procure the declarant's attendance by process or other reasonable means.
A
declarant is not unavailable as a witness if the declarant's exemption,
refusal, claim of lack of memory, inability, or absence is due to the
procurement or wrongdoing of the proponent of the declarant's statement for the
purpose of preventing the witness from attending or testifying.
(b) Hearsay exceptions. The
following are not excluded by the hearsay rule if the declarant is unavailable
as a witness:
(1) Former testimony.
Testimony given as a witness at another hearing of the same or a different
proceeding, or in a deposition taken in compliance with law in the course of
the same or another proceeding, if the party against whom the testimony is now
offered, or, in a civil action or proceeding, a predecessor in interest, had an
opportunity and similar motive to develop the testimony by direct, cross, or
redirect examination.
(2) Statement under belief
of impending death. A statement made by a declarant while believing that the
declarant's death was imminent, concerning the cause or circumstances of what
the declarant believed to be impending death.
(3) Statement against
interest. A statement which was at the time of its making so far contrary to
the declarant's pecuniary or proprietary interest, or so far tended to subject
the declarant to civil or criminal liability or to render invalid a claim by
the declarant against another or to make the declarant an object of hatred,
ridicule, or disgrace, that a reasonable person in the declarant's position
would not have made the statement unless believing it to be true. A statement
tending to expose the declarant to criminal liability and offered to exculpate
the accused is not admissible unless corroborating circumstances clearly
indicate the trustworthiness of the statement. A statement or confession
offered against the accused in a criminal case, made by a defendant or other
person implicating both the declarant and the accused, is not within this
exception.
(4) Statement of personal
or family history. (A) A statement concerning the declarant's own birth,
adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or
marriage, ancestry, or other similar fact of personal or family history, even
though declarant had no means of acquiring personal knowledge of the matter
stated; or (B) a statement concerning the foregoing matters, and death also, of
another person, if the declarant was related to the other by blood, adoption,
or marriage or was so intimately associated with the other's family as to be
likely to have accurate information concerning the matter declared.
Hearsay
included within hearsay is not excluded under the hearsay rule if each part of
the combined statements conforms with an exception to the hearsay rule provided
in these rules.
When
a hearsay statement, or a statement defined in Rule 801(d)(2), (C), (D), or
(E), has been admitted in evidence, the credibility of the declarant may be
attacked, and if attacked may be supported, by any evidence which would be
admissible for those purposes if declarant had testified as a witness. Evidence
of a statement or conduct by the declarant at any time, inconsistent with the
declarant's hearsay statement, is not subject to any requirement that the
declarant may have been afforded an opportunity to deny or explain. If the
party against whom a hearsay statement has been admitted calls the declarant as
a witness, the party is entitled to examine the declarant on the statement as if
under cross-examination.
RULE
901. REQUIREMENT OF AUTHENTICATION
OR
(a) General provision. The
requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.
(b) Illustrations. By way
of illustration only, and not by way of limitation, the following are examples
of authentication or identification conforming with the requirements of this
rule:
(1) Testimony of witness
with knowledge. Testimony of a
witness with knowledge that a matter is what it is claimed to be.
(2) Nonexpert opinion on
handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon
familiarity not acquired for purposes of the litigation.
(3) Comparison by court or
expert witness. Comparison by the court or by expert witnesses with specimens
which have been authenticated.
(4) Distinctive
characteristics and the like. Appearance, contents, substance, internal
patterns, or other distinctive characteristics, taken in conjunction with
circumstances.
(5) Voice identification.
Identification of a voice, whether heard firsthand or through mechanical or
electronic transmission or recording, by opinion based upon hearing the voice
at any time under circumstances connecting it with the alleged speaker.
(6) Telephone
conversations. Telephone conversations, by evidence that a call was made to the
number assigned at the time by the telephone company to a particular person or
business, if (A) in the case of a person, circumstances, which may include
self-identification, show the person answering to be the one called, or (B) in
the case of a business, the call was made to a place of business and the
conversation related to business reasonably transacted over the telephone.
(7) Public records or
reports. Evidence that a writing authorized by law to be recorded or filed and
in fact recorded or filed in a public office, or a purported public record,
report, statement, or data compilation, in any form, is from the public office
where items of this nature are kept.
(8) Ancient documents or
data compilations. Evidence that a document or data compilation, in any form,
(A) is in such condition as to create no suspicion concerning its authenticity,
(B) was in a place where it, if authentic, would likely be, and (C) has been in
existence twenty years or more at the time it is offered.
(9) Process or system.
Evidence describing a process or system used to produce a result and showing
that the process or system produces an accurate result.
(10) Methods provided by statute or
rule. Any method of authentication or identification provided by a rule of the
Supreme Judicial Court of this state or by a statute or as provided in the
Constitution of this state.
Extrinsic
evidence of authenticity as a condition precedent to admissibility is not
required with respect to the following:
(1) Domestic public
documents under seal. A document bearing a seal purporting to be that of the
United States, or of any state, district, commonwealth, territory, or insular
possession thereof, or the Panama Canal Zone, or the Trust Territory of the
Pacific Islands, or of a political subdivision, department, officer, or agency
thereof, and a signature purporting to be an attestation or execution.
(2) Domestic public
documents not under seal. A document purporting to bear the signature in the
official capacity of an officer or employee of any entity included in paragraph
(1) hereof, having no seal, if a public officer having a seal and having
official duties in the district or political subdivision of the officer or
employee certifies under seal that the signer has the official capacity and
that the signature is genuine.
(3) Foreign public
documents. A document purporting to be executed or attested in an official
capacity by a person authorized by the laws of a foreign country to make the
execution or attestation, and accompanied by a final certification as to the
genuineness of the signature and official position (A) of the executing or
attesting person, or (B) of any foreign official whose certificate of
genuineness of signature and official position relates to the execution or
attestation or is in a chain of certificates of genuineness of signature and
official position relating to the execution or attestation. A final
certification may be made by a secretary of embassy or legation, consul
general, consul, vice consul, or consular agent of the United States, or a
diplomatic or consular official of the foreign country assigned or accredited
to the United States. If reasonable opportunity has been given to all parties
to investigate the authenticity and accuracy of official documents, the court
may, for good cause shown, order that they be treated as presumptively
authentic without final certification or permit them to be evidenced by an
attested summary with or without final certification.
(4) Certified copies of
public records. A copy of an official record or report or entry therein, or of
a document authorized by law to be recorded or filed and actually recorded or
filed in a public office, including data compilations in any form, certified as
correct by the custodian or other person authorized to make the certification,
by certificate complying with paragraph (1), (2), or (3) of this rule or
complying with any law of the United States or of this state.
(5) Official publications.
Books, pamphlets, or other publications purporting to be issued by public
authority.
(6) Newspapers and
periodicals. Printed material purporting to be newspapers or periodicals.
(7) Trade inscriptions and
the like. Inscriptions, signs, tags, or labels purporting to have been affixed
in the course of business and indicating ownership, control, or origin.
(8) Acknowledged documents.
Documents accompanied by a certificate of acknowledgment executed in the manner
provided by law by a notary public or other officer authorized by law to take
acknowledgments.
(9) Commercial paper and
related documents. Commercial paper, signatures thereon, and documents relating
thereto to the extent provided by general commercial law.
(10) Presumptions created by law. Any
signature, document, or other matter declared by any law of the United States
or of this state, to be presumptively or prima facie genuine or authentic.
(11) Certified Domestic Records of
Regularly Conducted Activity.--The original or a duplicate of a domestic record
of regularly conducted activity that would be admissible under Rule 803(6) if
accompanied by a written declaration of its custodian or other qualified
person, in a manner complying with any Act of Congress or rule prescribed by
the Supreme Judicial Court, certifying that the record--
(A)
was
made at or near the time of the occurrence of the matter set forth by, or from
information transmitted by, a person with knowledge of those matters;
(B)
was kept in the course of the regularly conducted activity; and
(C)
was made by the regularly conducted activity as a regular practice.
A
party intending to offer a record into evidence under this paragraph must provide written notice of that
intention to all adverse parties, and must make the record and declaration available for inspection sufficiently
in advance of their offer into evidence to provide an adverse party with a fair
opportunity to object to the authenticity of the record or on the basis of
hearsay. In the event that an
adverse party raises objection to a record offered under this paragraph, the
court may in the interests of justice refuse to accept the certification under
this paragraph and require the party offering the record to provide appropriate
foundation by other evidence.
(12)
Certified Foreign Records of Regularly Conducted Activity. --In a civil case,
the original or a duplicate of a foreign record of regularly conducted activity
that would be admissible under
Rule 803(6) if accompanied by a written declaration by its custodian or other
qualified person certifying that the record–
(A)
was made at or near the time of the occurrence of the matters set forth by, or
from information transmitted by, a person with knowledge of those matters;
(B)
was kept in the course of the regularly conducted activity; and
(C)
was made by the regularly conducted activity as a regular practice.
The
declaration must be signed in a manner that, if falsely made, would subject the
maker to criminal penalty under the laws of the country where the declaration
is signed. A party intending to offer a record into evidence under this
paragraph must provide written notice of that intention to all adverse parties,
and must make the record and declaration available for inspection sufficiently
in advance of their offer into evidence to provide an adverse party with a fair
opportunity to object to the authenticity of the record or on the basis of
hearsay. In the event that an
adverse party raises timely objection to a record offered under this paragraph,
the court may in the interests of justice refuse to accept the certification
under this paragraph and require the party offering the record to provide
appropriate foundation by other evidence.
Except
as provided by statute, the testimony of a subscribing witness is not required
to authenticate a writing.
ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS
For
purposes of this article the following definitions are applicable:
(1)
Writings and recordings. ``Writings" and ``recordings" consist of
letters, words, sounds, or numbers, or their equivalent, set down by
handwriting, typewriting, printing, photostating, photographing, magnetic
impulse, mechanical or electronic recording, or other form of data compilation.
(2)
Photographs. ``Photographs" include still photographs, X-ray films, video
tapes, and motion pictures.
(3)
Original. An "original" of a writing or recording is the writing or
recording itself or any counterpart intended to have the same effect by a
person executing or issuing it. An "original" of a photograph
includes the negative or any print therefrom. If data are stored in a computer
or similar device, any printout or other output readable by sight, shown to
reflect the data accurately, is an "original."
To
prove the content of a writing, recording, or photograph, the original writing,
recording, or photograph is required, except as otherwise provided in these
rules or by statute.
The
original is not required, and other evidence of the contents of a writing,
recording, or photograph is admissible if:
(1)
Originals lost or destroyed. All originals are lost or have been destroyed,
unless the proponent lost or destroyed them in bad faith; or
(2)
Original not obtainable. No original can be obtained by any available judicial
process or procedure; or
(3)
Original in control of opponent. At a time when an original was under the
control of the party against whom offered, the party was put on notice, by the
pleadings or otherwise, that the contents would be a subject of proof at the
hearing, and the party does not produce the original at the hearing; or
(4)
Collateral matters. The writing, recording, or photograph is not closely
related to a controlling issue.
The
contents of an official record, or of a document authorized to be recorded or
filed and actually recorded or filed, including data compilations in any form,
if otherwise admissible, may be proved by copy, certified as correct in
accordance with Rule 902 or testified to be correct by a witness who has
compared it with the original. If a copy which complies with the foregoing
cannot be obtained by the exercise of reasonable diligence, then other evidence
of the contents may be given.
The
contents of voluminous writings, recordings, or photographs which cannot
conveniently be examined in court may be presented in the form of a chart,
summary, or calculation. The originals shall be made available for examination
or copying, or both, by other parties at a reasonable time and place. The court
may order that they be produced in court.
Contents
of writings, recordings, or photographs may be proved by the testimony or
deposition of the party against whom offered or by the party's written
admission, without accounting for the nonproduction of the original.
When
the admissibility of other evidence of contents of writings, recordings, or
photographs under these rules depends upon the fulfillment of a condition of
fact, the question whether the condition has been fulfilled is for the court to
determine in accordance with the provisions of Rule 104.
(a)
Rules applicable. Except as otherwise provided in (b), these rules apply to all
actions and proceedings in the Supreme Judicial Court, the Superior Court, the
District Court, and the Probate Court.
(b)
Rules inapplicable. The rules other than those with respect to privileges do
not apply in the following situations:
(1)
Preliminary questions of fact. The determination of questions of fact preliminary
to admissibility of evidence except as otherwise provided in Rule 104.
(2)
Grand jury. Proceedings before grand juries.
(3)
Juvenile Proceedings. To
proceedings under the Maine Juvenile Code other than (a) probable cause
determinations in bindover hearings and (b) adjudicatory hearings.
(4)
Miscellaneous Proceedings. Statutory small claims proceedings in the District
Court prior to rendition of judgment; proceedings for sentencing; issuance of
warrants; proceedings with respect to release on bail or otherwise; proceedings
for granting of probation or parole; proceedings on probation or parole
violations; and proceedings for determination of probable cause.
(5)
Contempt Proceedings. Those contempt proceedings in which the court may act
summarily.
These
rules may be known and cited as the Maine Rules of Evidence.
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