TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 10, N.D.R.App.P.; The Record on Appeal
The new Standards Related to Juror Use and Management were discussed informally at the Committee's April meeting. The Committee asked staff to research the background of the Standards.
The Standards are a product of the Jury Standards Committee. The Jury Committee worked on the Standards in 1999-2001. By order of the Supreme Court, the Standards were made part of N.D. Sup. Ct. Admin. R. 9 effective June 1, 2002.
According to staff attorney Jim Ganje, the Standards represent an attempt to formalize the jury procedures that were already in place in North Dakota. The Jury Committee used Jury System Management, a publication of the National Center for State Courts, as a supplemental reference in developing the Standards.
When this Committee discussed the Standards in April, some concern was expressed regarding the voir dire recording requirement. This requirement is found at Standard 7(d) and provides:
In felony criminal cases, the voir dire process shall be held on the record. In civil and misdemeanor criminal cases, the voir dire process shall be held on the record unless waived by the parties on the record or in writing.
The Nov. 22, 1999, minutes of the Jury Committee show it was originally proposed that on-the-record voir dire be required in all criminal cases, with waiver allowed only in civil cases. The Jury Committee ultimately decided that on-the-record voir dire would only be required in felony cases with waiver allowed in misdemeanor and civil cases.
The Standard 7(d) voir dire recording requirement sets a higher standard than the former rule as expressed by the Supreme Court in State v. Ellis, 2000 ND 177, and State v. Entzi, 2000 ND 148. In these cases, the Court held that failure to record voir dire in a felony case was not error unless a party had specifically requested such recording.
Standard 7(d) seems consistent with N.D.R.Civ.P. 47 and N.D.R.Crim.P. 24, neither of which deal with the topic of whether juror examinations should be recorded.
A Committee member expressed concern at the April meeting that the voir dire recording requirement may prove to be a hardship to a party required to order the transcript on appeal, given that voir dire often is lengthy. The member suggested that N.D.R.App.P. 10 could be modified to make transcription of the voir dire portion of the record optional. A proposed revision of N.D.R.App.P. 10 containing such a provision is included as part of the meeting materials. The proposed change is found at lines 39-40 of the rule--the Committee has already approved the other changes reflected in the rule.