Me. R. Evid. 101
Me. R. Evid. 101
Maine Restyling Note [November 2014]
The Maine Rules of Evidence Restyling Project follows a similar project by the Federal Advisory Committee on Rules of Evidence to restyle the federal counterparts to our evidence rules as well as similar projects for the Federal Rules of Civil and Criminal Procedure. The purpose of the restyling is to make the rules clearer and easier to apply by adoption of simple and consistent language, style, and format conventions and elimination of ambiguous or obsolete terminology. Where the Maine Rule of Evidence is substantially identical in substance to the corresponding Federal Rule of Evidence, the Advisory Committee recommends that the Court adopt language identical to that in the Federal Rules, and we have included the Federal Advisory Committee's restyling note with the proposed amended Rule. Where a Maine Rule departs in substance from the corresponding Federal Rule, we have recommended revisions that follow the same restyling format as in the other Rules, as described in "The Style Project" in the Federal Advisory Committee Note to Rule 101.
The language of Maine Rule 101(c) closely tracks existing Federal Rule 101(b) in terms of the definitions (the proposed Maine restyling changes the references to Maine references and adds a reference to "or inherent" to "statutory authority" for rule-making). Otherwise, the proposed Maine Rule 101 differs significantly from the Federal Rule by setting forth, in sections (a) and (b), a complete description of the applicability of the Rules to proceedings in Maine courts. As part of the Restyling Project, the Advisory Committee recommends that the Court consolidate all references to applicability in the Rules, including those presently in Rules 104(a) and 1101, into one comprehensive provision in Rule 101. The Committee recommends adding references to deferred dispositions and administrative release in Rule 101(b)(7) as such dispositions are now common in criminal proceedings and are sufficiently analogous to probation proceedings to warrant consistent treatment. The Committee further recommends that the Court eliminate the final sentence of current Maine Rule 104(a) and repeal Rule 1101 entirely as part of this consolidation. Finally, the Committee has proposed that the reference to the title of the Rules be moved from Rule 1102 to a new section 101(d), eliminating the need for Rule 1102 as well.
The restyled Rule does not make specific reference to hearings on "motions to suppress evidence and the like," which are referred to in current Maine Rule 104(a) as not excepted from applicability of the Rules of Evidence. By failing to include an express "exception to the exception" the Committee does not intend to change Maine law to the effect that the Rules of Evidence do apply to hearings in proceedings addressing the suppression of evidence.
Federal Advisory Committee Note
The language of Rule 101 has been amended, and definitions have been added, as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.
The reference to electronically stored information is intended to track the language of Fed. R. Civ. P. 34.
The Style Project
The Evidence Rules are the fourth set of national procedural rules to be restyled. The restyled Rules of Appellate Procedure took effect in 1998. The restyled Rules of Criminal Procedure took effect in 2002. The restyled Rules of Civil Procedure took effect in 2007. The restyled Rules of Evidence apply the same general drafting guidelines and principles used in restyling the Appellate, Criminal, and Civil Rules.
1. General Guidelines.
Guidance in drafting, usage, and style was provided by Bryan Garner, Guidelines for Drafting and Editing Court Rules, Administrative Office of the United States Courts (1969) and Bryan Garner, Dictionary of Modern Legal Usage (2d ed. 1995). See also Joseph Kimble, Guiding Principles for Restyling the Civil Rules, in Preliminary Draft of Proposed Style Revision of the Federal Rules of Civil Procedure, at page x (Feb. 2005) (available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Prelim_draft_proposed_ pt1.pdf); Joseph Kimble, Lessons in Drafting from the New Federal Rules of Civil Procedure, 12 Scribes J. Legal Writing 25 (2008-2009). For specific commentary on the Evidence restyling project, see Joseph Kimble, Drafting Examples from the Proposed New Federal Rules of Evidence, 88 Mich. B.J. 52 (Aug. 2009); 88 Mich. B.J. 46 (Sept. 2009); 88 Mich. B.J. 54 (Oct. 2009); 88 Mich. B.J. 50 (Nov. 2009).
2. Formatting Changes.
Many of the changes in the restyled Evidence Rules result from using format to achieve clearer presentations. The rules are broken down into constituent parts, using progressively indented subparagraphs with headings and substituting vertical for horizontal lists. "Hanging indents" are used throughout. These formatting changes make the structure of the rules graphic and make the restyled rules easier to read and understand even when the words are not changed. Rules 103, 404(b), 606(b), and 612 illustrate the benefits of formatting changes.
3. Changes to Reduce Inconsistent, Ambiguous, Redundant, Repetitive, or Archaic Words.
The restyled rules reduce the use of inconsistent terms that say the same thing in different ways. Because different words are presumed to have different meanings, such inconsistencies can result in confusion. The restyled rules reduce inconsistencies by using the same words to express the same meaning. For example, consistent expression is achieved by not switching between "accused" and "defendant" or between "party opponent" and "opposing party" or between the various formulations of civil and criminal action/case/proceeding.
The restyled rules minimize the use of inherently ambiguous words. For example, the word "shall" can mean "must," "may," or something else, depending on context. The potential for confusion is exacerbated by the fact the word "shall" is no longer generally used in spoken or clearly written English. The restyled rules replace "shall" with "must," "may," or "should," depending on which one the context and established interpretation make correct in each rule.
The restyled rules minimize the use of redundant "intensifiers." These are expressions that attempt to add emphasis, but instead state the obvious and create negative implications for other rules. The absence of intensifiers in the restyled rules does not change their substantive meaning. See, e.g., Rule 104(c) (omitting "in all cases"); Rule 602 (omitting "but need not"); Rule 611(b) (omitting "in the exercise of discretion").
The restyled rules also remove words and concepts that are outdated or redundant.
4. Rule Numbers.
The restyled rules keep the same numbers to minimize the effect on research. Subdivisions have been rearranged within some rules to achieve greater clarity and simplicity.
5. No Substantive Change.
The Committee made special efforts to reject any purported style improvement that might result in a substantive change in the application of a rule. The Committee considered a change to be "substantive" if any of the following conditions were met:
a. Under the existing practice in any circuit, the change could lead to a different result on a question of admissibility (e.g., a change that requires a court to provide either a less or more stringent standard in evaluating the admissibility of particular evidence);
b. Under the existing practice in any circuit, it could lead to a change in the procedure by which an admissibility decision is made (e.g., a change in the time in which an objection must be made, or a change in whether a court must hold a hearing on an admissibility question);
c. The change would restructure a rule in a way that would alter the approach that courts and litigants have used to think about, and argue about, questions of admissibility (e.g., merging Rules 104(a) and 104(b) into a single subdivision); or
d. The amendment would change a "sacred phrase"-one that has become so familiar in practice that to alter it would be unduly disruptive to practice and expectations. Examples in the Evidence Rules include "unfair prejudice" and "truth of the matter asserted."