TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 7, N.D.R.Crim.P., The Indictment and the Information
The Supreme Court approved changes to Rule 7 when it approved the Criminal Rules Package. During its discussion of the rule, the Court wondered whether additional changes were needed to make the rule compatible with State v. Frankfurth, 2005 ND 167, 704 N.W.2d 564.
The Court proposed a change to Rule 7, and a copy of the rule containing the proposed change is attached. The Court has requested that the Committee look at the proposed change and discuss whether it is consistent with North Dakota law and practice.
The Frankfurth court held that an information is defective if it does not set forth factual allegations to satisfy the essential elements of the offense charged. To support this conclusion, the Frankfurth court reviewed longstanding North Dakota law that requires the information to contain a statement of the elements of the offense. As in previous cases, the Frankfurth court cited Rule 7 to support this requirement. Rule 7, however, does not mention "elements" in its text or in its explanatory note. Instead, it mentions "essential facts."
The language of Fed.R.CrimP. 7, which was the model for Rule 7, was designed to establish "a single standard, applicable to the pleading of all crimes and to all elements of the pleading." 4 Wayne R. LaFave, et.al., Criminal Procedure § 19.1(d) (2d ed. 1999). While Fed.R.CrimP. 7 does not mention "elements," its language has been interpreted to require "a statement 'setting forth, in factual terms, the elements of the offense sought to be charged.'" Id. (citing United States v. Matlock, 675 F.2d 981 (8th Cir. 1982)).
Because both North Dakota and federal courts have interpreted Rule 7 to require a statement of the elements of an offense in the information, amendment of Rule 7 to conform with Frankfurth may not be necessary. On the other hand, the amendment proposed by the Court is a correct statement of North Dakota law and is consistent with the way Rule 7 is interpreted in the federal courts.