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) 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) 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.
(E) 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 have 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:
(A) reports, memoranda, or other internal defense documents made by the defendant or the defendant's attorneys or agents, in connection with the during the case's investigation or defense of the case,; or
(B) of statements a statement made to the defendant, or the defendant's attorney or agent, by:
(i) the defendant;
(ii) a prosecution or defense witness; or
(iii) or by a prospective prosecution or defense witnesses to the defendant, or to the defendant's agents or attorneys.
(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 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______________________.
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 ______________, 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. 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_________________. These provisions set conditions for reciprocal disclosure by the prosecution and defendant of proposed expert witness testimony.
SOURCES: Joint Procedure Committee Minutes of __________________, pages ____; 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), 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).