TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 32.2, N.D.R.Crim.P., Pretrial Diversion
During its April meeting, the Committee discussed a proposed new Rule of Criminal Procedure allowing pretrial diversion, Rule 32.2. The Committee made a substantial number of amendments to the first draft and a second draft of the proposed rule, which includes the Committee's amendments, is attached for further review.
The Committee instructed staff to circulate the draft rule for review. Staff e-mailed the draft rule to the Commission on Legal Counsel for Indigents, state's attorneys and parole and probation. Staff received comments back from the Commission and several state's attorneys. These comments are attached.
Robin Huseby of indigent defense indicated that public defenders were generally supportive of the rule. One defense attorney, however, criticized the provision of the proposed rule regarding stipulations of fact. The attorney suggested that some defendants may be willing to stipulate to facts that are "not wholly true" in exchange for diversion. The stipulation provision is included in paragraph (a)(1) of the proposal.
The state's attorneys who submitted informal comments were generally supportive of the proposal. Some indicated that prosecutors already have the power to allow diversion and questioned whether a formal rule was necessary. Ross Sundeen of Dunn County specifically criticized the provision at paragraph (d)(1) allowing the defendant to unilaterally terminate a diversion agreement.
Fritz Fremgen submitted a formal and detailed comment on the proposal. Like Mr. Sundeen, he criticized the paragraph (d)(1) termination provision and provided additional specific suggestions for further modification of the rule proposal. Mr. Fremgen's letter is attached and the Committee may wish to address each of his suggestions individually during its further discussion of the rule.