RULE 21. TRANSFER FROM THE COUNTY OR MUNICIPALITY FOR TRIAL
(a) For Prejudice in the County or Municipality. The court upon motion of the defendant shall transfer the proceeding
as to that defendantto another county or municipality whether or not that county or municipality is specified in the defendant's motion if the court is satisfied thatthere exists in the county or municipality in which the prosecution is pending so great a prejudice against the defendant thatthe defendant cannot obtain a fair and impartial trial.
(b) Transfer in Other Cases. For the convenience of parties and witnesses, and in the interest of justice, the court upon motion of the defendant may transfer the proceeding
as to the defendantto another county or municipality.
(c) Proceedings on Transfer. When a transfer is ordered, the court shall transmit to the court to which the action or proceeding is transferred all papers in the action or proceeding, or duplicates thereof, and any bail taken, and the prosecution
shallmust continue in that county or municipality. Whenever the place of trial is changed as provided in this Rule, the prosecuting attorney of the county or municipality whereinwhere the action or proceeding was commenced, or any other person appointed to prosecute, shall prosecute the case, and the judge ordering the transfer shall preside at the trial. The action or proceeding, except for the payment and collection of costs, shallmust be conducted in all respects as if it had been commenced in the court to which it is transferred.
(d) Transfer of Records. After acquittal or conviction in the action or proceeding, the court to which the action or proceeding was transferred shall retransmit all papers in the action or proceeding to the court in which the action was commenced.
(e) Transfer by Prosecution. The prosecution may apply for a transfer of the action or proceeding as a defendant may apply, and the court being satisfied that it will promote the ends of justice, may order such removal upon the terms and to the extent and in the manner provided in this Rule.
(f) Transfer of Defendant. The transferring court shall order the officer having the defendant in custody to transfer the defendant to the custody of the proper officer of the county or municipality to which the action or proceeding is transferred. The transfer must be made according to the terms of the order.
Rule 21 was amended, effective March 1, 1990; .
Rule 21 is an adaptation of Rule 21, FRCrimP, and provides the defendant with a procedural device for changing the place of trial. This may be accomplished by means of either a motion for a change of place of trial alleging either that prejudice exists against the defendant or that it is a necessity for the convenience of parties and witnesses and is in the interest of justice. By superseding Section 29-15-03, NDCC, the one-change limitation has been removed in favor of the exercise of sound discretion.
Rule 21 contemplates that all transfers shall be made from one court to a corresponding court of the same grade and classification.
Subdivisions (a)(b) and (f) were amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Subdivision (a) differs from its federal counterpart in that it provides for change of venue within the confines of the court structure of North Dakota. The rule is intended for application in cases in which prejudice in the community will make it difficult or impossible to select a fair and impartial jury. ItRule 21 is not designed for cases in which it is claimed that the judge is biased, sinceas there are statutory remedies enabling a party to disqualify a judge on the ground of personal bias or prejudice. [See Section 29-15-21, NDCC. ] In passing on a motion for transfer on the ground that the defendant cannot obtain a fair and impartial trial in the district, the ultimate question to be decided is whether it is impossible to select a fair and impartial jury. It is suggested that the proper occasion for such a determination is upon the voir dire examination.
Since the court has considerable discretion in passing on motions under Subdivision (a) the burden is upon the defendant to show a reasonable likelihood of prejudice. The common judicial attitude is one which holds that relief should be granted only in exceptional cases. In determining whether to grant relief in cases where it is claimed that pretrial publication has made prejudice inevitable, four important factors must be considered: (1) whether the publicity was recent, widespread, and highly damaging to the defendants; (2) whether the prosecution was responsible for the objectionable material, or if it emanated from independent sources; (3) whether an inconvenience to the prosecution and the administration of justice will result from a change of venue or continuance; and (4) whether a substantially better panel can be sworn at another time or place.
Subdivision (b) grants to the court, on motion of the defendant, the power to transfer any proceeding "for the convenience of parties and witnesses, and in the interest of justice." Subdivision (b) was designed to provide a remedy against the prosecution which initiates a criminal action in any improper forum. It implements the policy that venue should be chosen to minimize the inconvenience to the defense. The Rule recognizes the special importance in criminal prosecutions of seeking a convenient place for trial. The distinction between a motion under Subdivision (a) and one under Subdivision (b) is that pursuant to a motion under Subdivision (a), the defendant is complaining of prejudice in the county or municipality where the case is pending and is seeking to have the case transferred elsewhere to avoid such prejudice. But on a motion pursuant to Subdivision (b), the defendant's position is not that the present county or municipality is "bad," but that another county or municipality, usually but not always of the defendant's residence, would be more convenient. Of necessity the defendant's motion and the defendant's proof must go to establishing the superiority of the county or municipality which the defendant has in mind. If a motion is made pursuant to Subdivision (b), the court should examine all the circumstances of the case and determine what place of trial will best serve for convenience and in the interest of justice. [For a list of elements the Supreme Court has considered appropriate in exercising discretion under a 21(b) motion, see Wright, Federal Practice and Procedure: Criminal, § 344 (1969); see also, Platt v. Minnesota Mining and Manufacturing Co., 376 U.S. 240, 84 S.Ct. 769, 11 L.Ed.2d 674 (1963).]
Subdivision (c) is similar to its federal counterpart [21(c)] to the extent that it places a responsibility upon the court transmitting the case to forward to the court to which the action or proceeding is transmitted, all papers in the action or proceeding (or duplicates thereof) together with any bail which may have been received.
The provision of Subdivision (c) which requires that the prosecuting officers of the case follow the case to its new venue tracks with existing North Dakota law [Section 29-15-12, NDCC] and has no federal counterpart. It provides that the judge ordering the change of venue shall preside at the trial. This provision is consistent with existing law [see Section 27-05-22, NDCC (District Judges to act only within their districts Exceptions.)] and is constitutionally based [see § 116, North Dakota Constitution (1889).] It modifies previous case law as found in State v. Garrison, 276 N.W. 693 (N.D. 1937), and State v. Thomson, 34 N.W.2d 80 (N.D. 1948).
This provision is intended to accomplish two objectives: first, it should result in a prompt disposition of the case at trial; and second, it will prevent the defendant from securing a different judge merely by obtaining a change of venue without having to file an affidavit of prejudice.
Finally, Subdivision (c) provides for the payment of costs of the trial to be submitted to the county in which the action was commenced.
Subdivision (d) has no similar counterpart in the federal rule. It requires the court to which the action was transferred to retransmit (after acquittal or conviction) all papers in the action or proceeding to the court in which the action was commenced.
Subdivision (e) tracks with present law and practice [Section 29-15-11, NDCC (Removal by state Procedure.)] and has no similar federal counterpart. This subdivision grants to the prosecution the right to move for transfer of the action or proceeding if it will promote the ends of justice.
Subdivision (f) was added to incorporate the provisions of Section 29-15-05, NDCC (Disposition of defendant upon removal.).
SOURCES: Minutes of Rules Committee Meetings of ; April 20, 1989, page 4; December 3, 1987, page 15; September 18-19, 1980, pages 15-18; April 24-26, 1973, page 11; October 17-20, 1972, pages 5-11; September 17-18, 1970, pages 7-9; September 25-27, 1968, pages 9-11; Rule 21, FRCrimP
; Wright, Federal Practice and Procedure: Criminal, § 341-347 (1969); 8 Moore's Federal Practice, Chapter 21 (Cipes, 2d Ed. 1970).
SUPERSEDED: 29-01-33, 29-15-01, 29-15-02, 29-15-03, 29- 15-04, 29-15-05, 29-15-06, 29-15-07, 29-15-08, 29-15-09, 29-15-10, 29-15-11, 29-15-12, 29-15-20, 33-12-14, 40-18-21, NDCC.
CONSIDERED: 27-05-22, 29-15-21, 33-03-11, NDCC.