M E M O
TO: Joint Procedure Committee
FROM: Gerhard Raedeke
RE: Venue in Criminal Cases
During its 1997 session, the legislature enacted a new statute governing venue in criminal cases. The statute, N.D.C.C. § 29-01-33, provides for changing the location of a proceeding or trial as follows:
Notwithstanding any other provision of law, in any initial appearance, arraignment, hearing, proceeding, or trial the court may change the place of the initial appearance, arraignment, hearing, proceeding, or trial from the location in which the matter was originally to be heard. If any party files an objection to the change of trial no later than ten days after the date of notice of assignment or reassignment of a judge for trial of the case, the trial must be held where originally venued. In the case of a jury trial, the jury panel must be composed of residents of the original county of venue or residents of the judicial district as provided by section 27-09.1-05.1.
(Emphasis added.) The statute only provides for an objection to a change in location of trial. The statute contains no provision for objecting to a change in the location of the initial appearance, arraignment, hearing, or other proceeding. Also, under the statute, it does not appear a trial court is required to have any particular basis for a change in location. However, if a party makes an objection to a change in location of trial, it appears, the trial must be held where originally venued no matter how frivolous the objection or how meritorious the motion for a change of venue.
The Rules of Criminal Procedure already contain provisions governing venue. Under Rule 18, the trial is generally held in the county in which the offense was committed. Under Rule 21, a case may be transferred to another county if because of prejudice the defendant cannot obtain a fair and impartial trial in the county where the prosecution is pending; or, a case may be transferred to another county for the convenience of parties and witnesses and in the interest of justice. When Rule 21, N.D.R.Crim.P., was adopted, it superseded the statutes governing venue in criminal cases.
Neither Rule 18 nor Rule 21 address changing the location of a pretrial or post trial proceeding. Should Rule 18 be amended to allow hearings and proceedings, other than the trial, outside the county of venue? Are amendments needed to achieve consistency between Rules 18, 21 and N.D.C.C. § 29-01-33? Should Rule 21 be amended to conform with N.D.C.C. § 29-01-33? Should N.D.C.C. § 29-01-33 be superseded?
At its September 1998, meeting, the Committee reviewed the new venue statute. The Committee decided to postpone consideration of venue until after the 1999 legislative session. See Minutes of the Joint Procedure Comm. 16-17 (Sept. 25, 1998). The 1999 legislature made no additional changes affecting N.D.C.C. § 29-01-33. Is the Committee now ready to act?