Read About: Recent Amendments to the Maine Rules of Court
By: rudman winchell attorney Mark D. Beaumont
Read About: Recent Amendments to the Maine Rules of Court
(Part 1 – Maine Rules of Evidence)
On December 13, 2011, the Maine Supreme Judicial Court adopted a number of amendments to the Maine Rules of Court, with the approved amendments going into effect on January 1, 2012. This series of short articles will attempt to analyze the changes to the various sets of rules, and explain the significance of the changes.
• Part 1 – Amendments to the Maine Rules of Evidence
• Part 2 – Amendments to the Maine Rules of Civil Procedure
• Part 3 – Amendments to the Maine Rules of Criminal Procedure
• Part 4 – Amendments to the Maine Rules of Appellate Procedure
• Part 5 – Amendments to the Maine Bar Rules
• Part 6 – Amendments to the Maine Rules of Professional Conduct
• Part 7 – Amendments to the Maine Bar Admission Rules
The Maine Rules of Evidence
The Maine Rules of Evidence are the rules that govern whether, when, how, and for what purpose, proof may be offered and admitted before a court.
Effective January 1, 2012, the Maine Supreme Judicial Court amended two Rules of Evidence – Rule 513(a) and Rule 804(b)(3). Each is addressed individually below:
Amended Rule 513(a):
Rules 512 and 513 of the Maine Rules of Evidence deal with the assertion of a privilege by a witness in a case. Rule 512 governs how such matters are handled in a criminal case, while Rule 513 deals with the assertion of a privilege by a witness in a civil case. As you might expect, they are handled differently.
A privilege is a mechanism that allows a person to refuse to answer a question or provide evidence on a particular subject, or that prevents certain evidence from being disclosed or used in a legal proceeding. The most commonly known privileges are the Fifth Amendment constitutional privilege against self-incrimination; attorney-client privilege; doctor-patient privilege; husband-wife privilege; and religious privilege.
In a criminal case, the fact that a person invokes a privilege cannot be commented on by the judge or attorneys, and neither the judge nor the jury is allowed to draw any adverse inference from the assertion of any privilege.
This means that if a person is testifying on the witness stand and in response to a question, that person “pleads the Fifth” (invokes their Fifth Amendment right against self-incrimination on the basis that they believe their answer may provide evidence of an illegal act that could subject them to punishment by fines, penalties or forfeiture), neither the judge nor attorneys can comment on that person’s refusal to testify, and the judge or jury is not allowed to think that person is guilty, or draw any other unfavorable inference against the witness simply because they “plead the Fifth.”
That is not necessarily the situation in a civil case.
If the person asserting the privilege is not a party to the civil case at issue, then the same standard applies to that person as it does to all people in criminal cases – with no comment or inference permitted by the judge, jury or attorneys. M.R. Evid. 513(b).
But if the person asserting the privilege is a party to the civil case at issue, then the rule is different. In a civil case, the assertion of a privilege by a party may allow the judge or attorneys to comment on that person’s refusal to testify, and the judge or jury may be allowed to draw an unfavorable inference against that person because of their refusal to testify. M.R. Evid. 513(a).
I say that the assertion of a privilege “may” allow comment or inference by the judge, jury or attorneys because the new amendment changes the rule so that the ability to comment or draw an inference from the assertion of a privilege depends on which privilege is being asserted.
Under the old Rule 513(a), if a party invoked a privilege – any privilege – then the judge or attorneys were permitted to comment on the assertion of whatever privilege was used, and the judge or jury was allowed to draw an appropriate inference from the refusal to testify.
Under the new Rule 513(a), the judge, jury or attorneys are only allowed to comment on or draw inferences from a party’s assertion of his or her Fifth Amendment right against self-incrimination. So if a party refuses to testify on other grounds – whether it is doctor-patient confidentiality, attorney-client privilege, or any of the other available privileges – judges and attorneys are no longer allowed to comment on, and judges and juries are no longer allowed to draw adverse inferences from, the assertion of those other privileges.
Amended Rule 804(b)(3):
The 800-series of rules in the Maine Rules of Evidence are the rules that deal with “hearsay.” Hearsay is an out-of-court statement, offered in court, to prove the truth of the matter asserted. As a general rule, hearsay is not admissible. The theory behind this general rule is that the judge or jury in a case should be allowed to determine the truthfulness, reliability and credibility of all evidence that is presented. Where a hearsay statement is one that was made by someone other than who is testifying, and it was made out-of-court (and therefore not likely to have been made under oath), the judge or jury cannot test the reliability or truthfulness of that other person’s statement. And because the judge or jury cannot weigh the reliability or truthfulness of that statement, hearsay is generally not admissible.
This is an area of the Rules of Evidence that has given countless law students and lawyers fits for years. Essentially, “hearsay” means that you cannot testify about what someone else told you, or what you may have overheard, outside of court.
Now, as with most of the rules of evidence, there are exceptions. These exceptions occur in a number of different circumstances and for a number of different reasons. But the unifying thread of all hearsay exceptions is that the statements, while still being hearsay, are the types of statements that for whatever reason are considered to be reliable enough that the judge or jury should be allowed to consider them.
One such exception is Rule 804(b)(3)’s “statement against interest.” Under this exception, a “statement against interest” is a statement made by a non-party that was so clearly against that person’s interest at the time the statement was made, that the person would not have made it unless it were true.
Ideally, you would just call the person who made the out-of-court statement as a witness and have them repeat in court, under oath, what they said before. However, if that person is not available to testify, Rule 804 provides the framework that may allow you to introduce their statement into evidence through someone else who heard.
The types of statements covered by Rule 804(b)(3) are statements against the speaker’s monetary or property interest; statements that would subject the speaker to potential civil or criminal liability; statements that would render a potential claim by the speaker to be invalid; and statements that would make the speaker the object of hatred, ridicule or disgrace.
Under the old Rule 804(b)(3), if the statement in question was one that would subject the speaker to possible criminal liability, and it was being offered to prove that the defendant was innocent, that statement was not admissible unless the defense could show corroborating circumstances that clearly indicate the trustworthiness of the statement.
For instance, assume that Person A was accused of shooting Person B. If Person A’s friend was at a bar and overheard Person X talking about how they really shot Person B, that would be a statement against interest under Rule 804(b)(3), because Person X’s statement would, if true, subject him to criminal prosecution for the shooting. Next, assume that Person X has fled the country and cannot be found, the defense would obviously want to have the friend testify about what Person X said because it would help show that Person A was innocent. But because there is nothing but the witness’s oath to tell the truth to prevent them from making up the whole story about being at a bar and hearing another person admit to the shooting, the rules of evidence require some additional evidence that would help corroborate the truthfulness of Person X’s statement.
This left defense attorneys and prosecutors on somewhat unequal footing, with defense attorneys arguing that they had to offer additional evidence to corroborate any evidence that might prove their client didn’t commit the crime(s) he/she was charged with, but the prosecutor didn’t have to offer additional evidence to corroborate any applicable hearsay statements made to prove that the defendant was guilty.
Under our hypothetical, this meant that under the old Rule 804(b)(3), if Person X had instead said that he and Person A both shot Person B, the prosecution could offer Person X’s statement through a witness at the bar without having to provide any other corroborating evidence.
Rule 804(b)(3) was amended to basically level the playing field. The new wording of the rule requires that corroborating evidence is necessary to support statements offered by the defense to prove a defendant’s innocence, and statements offered by the prosecution to prove a defendant’s guilt.