TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 17, 2013
RE: Rule 707, N.D.R.Ev., Analytical Report Admission; Confrontation
The committee discussed Rule 707 at the April and September meetings. In September, it decided to table the rule to see whether the Supreme Court would provide additional insight on the interpretation of the rule's terms.
As of the date of this memo, the Court had issued one new opinion on Rule 707: State, ex rel. Madden v. Rustad, 2012 ND 242. In this case, the defense requested that the director of the state crime laboratory be produced to testify about an analytical report at a DUI trial. The judge ordered the state to produce the director. The state sought a supervisory writ from the Court to vacate the order. The Court vacated the order because it concluded that the director did not make any testimonial statements in the analytical report at issue. Specifically, the Court held: "The State need not produce designated persons for confrontation purposes if those persons do not make testimonial statements in analytical reports." Rustad, ¶19.
For the sake of discussion, proposed amendments to Rule 707 are attached that incorporate the Rustad standard in the rule.
Judge Gary Lee submitted a letter, dated Dec. 7, 2012, requesting amendment of Rule 707. The letter is attached. In the letter, Judge Lee criticizes the time lines in the rule and suggests they cause defendants to always wait until 14 days before trial to object to admission of an analytical report. He says this causes trial delay and a waste of judicial resources. He suggests that the time lines be changed to run from the date of the initial appearance rather than from before the date of the trial. Staff has incorporated Judge Lee's suggestions in the attached proposal.
The issue of whether the rule is still needed was raised at the September meeting. It was pointed out that the rule was enacted because North Dakota has statutes that allow "automatic" admission of analytical reports, contrary to Melendez-Diaz and the cases that followed. Rule 707 did not supersede these provisions because they are arguably substantive, not procedural. Instead, the rule superseded provisions that set out procedures for subpoenaing witnesses to testify about analytical reports. A copy of N.D.C.C. § 19-03.1-37 is attached so that the committee can see how these statutes are structured and what provisions were superseded. Rule 707 accepts the "prima-facie" nature of an analytical report under § 19-03.1-37(4), but if there is an objection to the report, it provides a procedure consistent with Melendez-Diaz to fulfill the defendant's confrontation clause rights. The committee may wish to discuss whether this could be accomplished in the absence of the rule.
The Committee asked how other jurisdictions are responding to Melendez-Diaz.
federal government is proposing a fairly simple amendment to Rule 803. A copy is attached.
The amendment contains a "notice and demand" procedure similar to the procedure in Rule
707, but with shorter timelines. The committee may wish to discuss whether following the
federal approach would be advantageous in North Dakota.