TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 12.1, N.D.R.Crim.P., Notice of Alibi
Form and style amendments to the Federal Rules of Criminal Procedure took effect December 1, 2002. Attached are proposed amendments to N.D.R.Crim.P. 12.1 which are in the spirit of the federal form and style amendments. The primary purpose of the amendments are to make the rule easier to navigate and understand.
The main difference between the federal rule and N.D.R.Crim.P. 12.1 is that the federal rule puts the burden on the prosecution to make a demand for the defendant to produce a notice of alibi. The Committee may wish to consider whether the rule should be changed to follow the federal model. The original N.D.R.Crim.P. 12.1 also put this burden on the prosecution, but the rule was amended in 1980 to require the defendant to give notice of alibi without any prompting by the prosecution.
It is not clear from the 1979 Committee minutes or agenda material why the Committee chose to shift the notice burden to the defendant. It is arguable that requiring the prosecutor to demand notice of alibi just creates more paperwork for the prosecution to file in every case. On the other hand, under the federal rule, the demand for notice must include the time, date and place of the alleged offense--arguably the defendant needs to know this information before notice of alibi can be given.
Amendments to the explanatory note are also proposed, both to explain the changes to the rule text and to eliminate what seem to be obsolete items.
The proposed amendments to Rule 12.1 are attached.