N.D.R.Crim.P.
RULE 16. DISCOVERY AND INSPECTION
(a) Disclosure of Evidence by Prosecuting Attorney.
(1) Information Subject to Disclosure.
(A) Statement of Defendant. Upon a defendant's written request of a
defendant, the
prosecuting attorney shall must disclose to the defendant and make
available for inspection,
copying, or photographing all of the following:
(i) any relevant written or recorded statements statement
made by the defendant, or
copies thereof, if:
-- the statement is within the prosecution's possession, custody, or control; and
-- of the prosecution, the existence of which is known, or by the exercise
of due diligence
may become known, to the prosecuting attorney knows -- or through due diligence
could
know -- that the statement exists;
(ii) that the portion of any written record containing the
substance of any relevant oral
statement made before or after arrest by if the defendant
made the statement , whether before
or after arrest, in response to interrogation by any a person
then known to the defendant
knew was to be an a government agent of the
government;
(iii) the defendant's recorded testimony of the defendant before a
grand jury concerning
relating to the charged offense charged; and
(iv) the substance of any other oral statement made by the defendant,
whether before or
after arrest, in response to interrogation by any a person
then known by the defendant knew
was to be a government agent.
(B) Organizational Defendant. Upon a defendant's request of a
defendant, which if the
defendant is an organization such as a corporation, partnership, association, or labor union,
the prosecution must disclose to the defendant any of the foregoing statements
described in
Rule 16(a)(1)(A) if the prosecution contends that the person making the statement:
made by
a person who the prosecution contends
(i) was, at the time of making the statement so situated legally able to
bind the defendant
regarding the subject of the statement because of that person's position as the defendant's
as a director, officer, employee, or agent; as to have been
legally able to bind the defendant
in respect to the subject of the statement or
(ii) was, at the time of personally involved in the alleged conduct
constituting the offense,
personally involved in the alleged conduct constituting the offense and so situated as a
and
was legally able to bind the defendant regarding that conduct because of that person's
position as the defendant's director, officer, employee, or agent as to have been
legally able
to bind the defendant in respect to that alleged conduct in which the person was
involved.
(B)(C) Defendant's Previous Record. Upon a defendant's
written request of a defendant,
the prosecution shall must furnish to the defendant
with a copy of the defendant's previous
prior criminal record, if any, as that is within the
prosecution's possession, custody, or
control of the prosecution, the existence of which is known, or by the exercise
of if the
prosecuting attorney knows--or through due diligence could know--that the record
exists.
may become known, to the prosecuting attorney.
(C) (D) Documents and Tangible Objects. Upon
a defendant's written request of a
defendant, the prosecuting attorney shall must permit the
defendant to inspect and to copy
or photograph books, papers, documents, data, photographs, tangible objects, buildings,
or
places, or copies or portions thereof of any of these items, if the
the item is which are within
the prosecution's possession, custody, or control of the prosecution,
and:
(i) the item is which are material to the preparation of the
defendant's preparing the
defense,:
(ii) the prosecution intends to or are intended for use the item
in its by the prosecutor as
evidence case-in-chief at the
trial,: or
(iii) the item was were obtained from or belongs to the
defendant.
(D) (E) Reports of Examinations and Tests. Upon a
defendant's written request, of a
defendant the prosecuting attorney shall must permit
the a defendant to inspect and to copy
or photograph any the results or reports of any physical or
mental examinations, and of any
scientific tests or experiments if:, or copies
thereof,
(i) the item is within the prosecution's possession, custody, or control
of the prosecution,;
(ii) the prosecuting attorney knows the existence of which is known,
--or by the exercise
of through due diligence may become known, to the prosecuting
attorney, could know--that
the item exists; and
(iii) the item is which are material to the preparation
of preparing the defense or the
prosecution are intended for use by the prosecutor as evidence intends
to use the item in its
case-in-chief at the trial.
(F) Expert Witnesses. Upon a defendant's written request, the prosecution must give to the defendant a written summary of any testimony that the prosecution intends to use under N.D.R.Ev. 702, 703, or 705 during its case-in-chief at trial. If the prosecution requests discovery under Rule 16(b)(1)(C)(ii) and the defendant complies, the prosecution must, upon the defendant's written request, give to the defendant a written summary of testimony that the government intends to use under N.D.R.Ev. 702, 703, or 705 as evidence at trial on the issue of the defendant's mental condition. Expert witness summaries must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications.
(2) Information Not Subject to Disclosure. Except as provided in
paragraphs Rule 16 (a)
(A), (B), and (D) of paragraph (1) provides otherwise, this rule does
not authorize the
discovery or inspection of reports, memoranda, or other internal prosecution documents
made by an attorney for the prosecution or other prosecution agents in
connection with the
investigation or prosecution of investigating or prosecuting the
case,. Nor does this rule
authorize the discovery or inspection or of statements made by prosecution
witnesses or
prospective prosecution witnesses (other than the defendant) to agents of the prosecution
except as provided in Rule 16 (f) subdivision (f) of this Rule.
(b) Disclosure of Evidence by the Defendant's Disclosure.
(1) Information Subject to Disclosure.
(A) Documents and Tangible Objects. If the a
defendant, in writing, requests disclosure
under subdivision Rule 16 (a)(1)(C) or (D), upon compliance
with the request by and the
prosecution complies, then the defendant, upon written request of the
prosecution, shall must
permit the prosecution to inspect and to copy or photograph books, papers, documents,
data,
photographs, tangible objects, buildings or places, or copies or portions
thereof of any of
these items if,:
(i) the item is within the defendant's which the defendant intends to
produce in chief at the
trial and which are within its possession, custody, or control: and
(ii) the defendant intends to use the item in the defendant's case-in-chief at trial.
(B) Reports of Examinations and Tests. If the a defendant, in
writing, requests disclosure
under subdivision Rule 16(a)(1)(C) or (D) upon compliance
with the request by and the
prosecution complies, the defendant, upon written request of the prosecution,
shall must
permit the prosecution to inspect and to copy or photograph any
the results or reports of any
physical or mental examinations and of any scientific
tests or experiments if:
(i) the item is within the defendant's possession, custody, or control; and
(ii) the defendant intends to use the item in the defendant's case-in-chief
made in
connection with the particular case, or copies thereof, within the possession or control of the
defendant, which the defendant intends to introduce as evidence in chief at
the trial or which
were prepared by a witness whom the defendant intends to call at the trial when
the results
or reports relate to the witness who prepared the report and the report relates to
the witness's
testimony.
(C) Expert Witnesses. The defendant must, upon written request of the prosecution, give to the prosecution a written statement of any testimony that the defendant intends to use under N.D.R.Ev. 702, 703, or 705 as evidence at trial, if:
(i) the defendant requests disclosure under Rule 16(a)(1)(E) and the prosecution complies; or
(ii) the defendant has given notice under Rule 12.2(b) of an intent to present expert testimony on the defendant's mental condition.
This summary must describe the witness's opinions, the bases and reasons for these opinions, and the witness's qualifications.
(2) Information not Subject to Disclosure. Except as to for
scientific or medical reports, this
subdivision Rule 16(b) does not authorize the discovery or inspection of
reports,
memoranda, or other internal defense documents made by the defendant or the
defendant's
attorneys or agents in connection with the attorney or agent during the
case's investigation
or defense of the case, or of statements made to the defendant, or the
defendant's attorney
or agent, by the defendant, a prosecution or defense witness, or by
a prospective prosecution
or defense witnesses to the defendant, or to the defendant's agents or attorneys
witness.
(c) Continuing Duty to Disclose. If, before or during trial, a A
party who discovers
additional evidence or material previously requested or ordered which is subject to
discovery
or inspection under this Rule, the party shall promptly notify before or during trial
must
promptly disclose its existence to the other party or the other party's
attorney or the court of
the existence of the additional material if:
(1) the evidence or material is subject to discovery or inspection under this rule; and
(2) the other party previously requested, or the court ordered, its production.
(d) Regulation of Regulating Discovery.
(1) Protective and Modifying Orders. Upon a sufficient showing the court
at At any time
the court may, for good cause, order that the deny,
restrict, or defer discovery or inspection,
be denied, restricted, or deferred or make such other order as
is grant other appropriate relief.
Upon motion by a party, the court may permit the a
party to show good cause make the
showing, in whole or in part, in the form of by a written statement to
be inspected by that the
court will inspect in camera. If the court enters an order granting relief
is granted following
a showing in camera, the court must preserve the entire text of the party's statement
under
seal must be sealed and preserved in the records of the court to be made available to
the
appellate court in the event of an appeal.
(2) Failure to Comply with Request. If at any time during the
course of the proceedings it
is brought to the attention of the court that a party has failed
fails to comply with this Rule
rule or with an order issued pursuant to under this
Rule rule, the court may:
(i) order that party to permit the discovery or inspection: specify its time, place and manner; and prescribe other just terms and conditions;
(ii) of materials not previously disclosed, grant a
continuance, ;
(iii) prohibit the that party from introducing in
evidence the undisclosed evidence;
(iv) material not disclosed, relieve the requesting party from
making a disclosure required
by this Rule rule; or
(v), or it may enter such any other
order as it deems that is just under the circumstances.
The court may specify the time, place, and manner of making the discovery and
inspection
and may prescribe such terms and conditions as are just.
(e) Alibi Witnesses. Discovery of alibi witnesses is governed by
N.D.R.Crim.P. Rule 12.1.
(f) Demands for Production of Names, Addresses, and Statements of Witnesses; Statements of Codefendants; Statements of Other Persons.
(1) Names, Addresses, and Statements of Prosecution Witnesses. Upon a defendant's
written request of the defendant, the prosecution shall
must furnish to the defendant:
(A) a written list of the names and addresses of all prosecution witnesses,
and any
statements made by them, whom the prosecuting attorney
prosecution intends to call in the
presentation of the during its case-in-chief,
;
(B) any statements made by the listed prosecution witnesses; and
(C) together with any records of prior criminal convictions of
any of those witnesses the
listed prosecution witnesses which are within the knowledge
of that the prosecuting attorney
knows--or by the exercise of due diligence could know--to exist.
If a defendant makes a written request for discovery of the names, addresses, and
statements of witnesses has been made by a defendant, the prosecuting attorney
must be
allowed to perpetuate the testimony of those witnesses in accordance with the provisions
of
under N.D.R.Crim.P. Rule 15.
(2) Statements of Codefendants. Upon a defendant's written request of the
defendant, the
prosecution shall must permit the defendant to inspect and to
copy or photograph any
relevant written or recorded confession, admission, or statement of a codefendant, or copies
thereof, of any of these items if:
(A) the item is within the prosecution's possession, custody, or control
of the prosecution,;
and
(B) the prosecuting attorney knows--the existence of which is
known, or through by the
exercise of due diligence may become known, to the prosecuting
attorneycould know--that
the item exists.
(3) Statements of Other Persons. Upon a defendant's written request of the
defendant, the
prosecution shall must permit the defendant to inspect and to
copy or photograph any
relevant written or recorded statement of any person, or copies thereof,
if:
(A) the statement is within the prosecution's possession, custody, or
control of the
prosecution, ;
(B) the existence of which is known to the prosecuting attorney
knows--or through the
exercise of due diligence could know--that the statement exists; and
(C) the statement which is not available to the defendant under
subdivision (a) or paragraph
(1) or (2) of this subdivision Rule 16(a) or 16(f)(1) and (2).
(4) The term "Statement," as used in this subdivision, Rule 16(f)
means:
(i)(A) a written statement made by the witness, codefendant, or
other person and signed or
otherwise adopted by the declarant; or
(ii)(B) a stenographic, mechanical, electrical
electronic, or other record, or a transcription
thereof of a record, which is a substantially verbatim recital of an oral
statement made by the
witness, codefendant, or other person to an agent of the prosecution and recorded
contemporaneously with the making of the oral statement.
EXPLANATORY NOTE
Rule 16 was amended, effective September 1, 1983; March 1, 1990; March 1, 1994; March 1, 1997: March 1, 2006.
Prior to the adoption of this Rule rule, discovery proceeded on an
informal basis. The only
requirement placed upon the prosecutor was the constitutional imperative that
"the
suppression by the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to the guilt or punishment, irrespective of the
good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 104, 83 S.
Ct.
1194, 1197, 10 L.Ed.2d 215 (1963).
While the rule, as amended, provides greater discovery, it is intended to prescribe only the minimum amount of discovery to which the parties are entitled. It is not intended to limit the judge's discretion to order broader discovery in appropriate cases. Nor is it intended to prevent the voluntary disclosure of other evidence or material by the parties at any time.
Rule 16 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Subdivision (f) was adopted, effective September 1, 1983. The provisions were drawn from
Rules 421 and 422, Uniform Rules of Criminal Procedure (1974); Standard 11-2.1,
American Bar Association Standards for Criminal Justice (2d Ed. ed.
1980); and subdivision
(a)(1)(E) of the proposed amendment of Fed.R.Crim.P. 16's,
transmitted to Congress by the
U.S. Supreme Court on April 22, 1974 provision requiring disclosure of expert
witness
information.
Subdivision (f) does not require, as did former subdivision (i), that the person whose statement is produced must first have testified on direct examination. It is intended that the listed statements be discoverable at any point in the proceedings.
Subdivision (a)(1)(A) was amended, effective March 1, 1994, in response to the 1991 federal amendment. The amendment to North Dakota's rule requires the prosecution, upon written request, to disclose that portion of any written record containing the substance of any oral statement made by the defendant in response to interrogation by any person then known to the defendant to be an agent of the government. The amendment also requires the prosecution, upon written request, to disclose the substance of any oral statement made by the defendant in response to interrogation by any person then known by the defendant to be an agent of the government.
Unlike the federal rule, North Dakota's rule does not allow the government to assess whether a written record containing the substance of an oral statement, or the substance of an oral statement, is relevant. The written record containing the substance of any oral statement, or the substance of any oral statement, must be disclosed regardless of whether the prosecution considers the oral statement relevant, and regardless of whether the prosecution intends to use the oral statement.
Subparagraphs (a)(1)(E) and (b)(1)(C) were adopted, effective March 1, 2006. These provisions set conditions for reciprocal disclosure by the prosecution and defendant of proposed expert witness testimony.
SOURCES: Joint Procedure Committee Minutes of January 27-28, 2005, pages 12-13; April 25, 1996, page 15; January 25-26, 1996, pages 22-23; April 27-28, 1995, pages 2-3; September 29-30, 1994, pages 7-9; April 28-29, 1994, pages 12-14; April 29-30, 1993, pages 10-11; January 28-29, 1993, pages 12-13; April 20, 1989, page 4; December 3, 1987, page 15; February 17-18, 1983, pages 5-11; November 18-19, 1982, pages 5-10; September 30-October 1, 1982, pages 3-6; April 15-16, 1982, page 1; December 7-8, 1978, pages 9-13; October 12-13, 1978, pages 3-8; September 27, 1974, page 4; October 17-20, 1972, pages 1-2; June 26-27, 1972, pages 9-14; December 11-12, 1968, pages 4-13; Fed.R.Crim.P. 16.
STATUTES AFFECTED: None.
CROSS REFERENCE: N.D.R.Crim.P. 12.1 (Notice of Alibi Defense);
N.D.R.Crim.P. 17.1
(Omnibus Hearing and Pretrial Conference); N.D.R.Ev. 612 (Writing or Object Used to
Refresh Memory); N.D.R.Ev. 702 (Testimony by Experts); N.D.R.Ev. 703 (Bases of
Opinion Testimony by Experts); N.D.R.Ev. 705 (Disclosure of Facts or Data Underlying
Expert Opinion). See also,: N.D.C.C. chs.
ch. 29-10.1 (Grand Jury) and; N.D.C.C. ch.29-10.2
(State Grand Jury).