RULE 12.1. NOTICE OF ALIBI DEFENSE
(a) Notice by Defendant. A defendant who intends to offer
evidence of an alibi defense, within the time provided for the making of pretrial motions or at any time thereafter as the court directs, shall must serve written notice upon on the prosecuting attorney of that intention any intended alibi defense and file the notice within the time provided for the making of pretrial motions or afterward as the court directs. The notice must state:
the each specific place or places at which where the defendant claims to have been at the time of the alleged offense; and
(2) the name
s and, address es, and telephone number of each of the witness es upon on whom the defendant intends to rely to establish the alibi.
(b) Notice by
the Prosecuting Attorney.
(1) Disclosure. If the defendant serves an N.D.R.Crim.P. 12.1(a) notice, the prosecuting attorney must disclose in writing to the
Within ten days thereafter, but in no event less than ten days before trial, unless the court directs otherwise, the prosecuting attorney shall serve upon the defendant or the defendant's attorney:
a written notice stating the name s, and address es, and telephone number of those upon whom each witness the prosecution intends to rely on to establish defendant's presence at the scene of the alleged offense; and shall file the notice
(B) each prosecution rebuttal witness to the defendant's alibi defense.
(2) Time to Disclose. Unless the court directs otherwise, the prosecuting attorney must give its N.D.R.Crim.P. 12.1(b)(1) disclosure within 10 days after the defendant serves notice of an intended alibi defense under N.D.R.Crim.P. 12.1 (a), but no later than 10 days before trial.
Failure to comply. Upon failure of either party to comply with the requirements of this rule the court may exclude the testimony of any witness offered by that party as to the defendant's absence from, or presence at, the scene of the alleged offense. This rule does not limit the right of the defendant to testify. (d) Continuing Duty to Disclose. Both the defendant and the prosecution prosecuting attorney are under a continuing duty to must promptly disclose in writing to the other party the name s, and address es, and telephone number of each of additional witness es if:
(1) the disclosing party learns of the witness before or during trial; and
(2) the witness should have been disclosed under N.D.R.Crim.P. 12.1 (a) or (b) if the disclosing party had known of the witness earlier.
which come to the attention of either party subsequent to their having been given notice pursuant to the requirements of this rule.
ed) Exceptions. For good cause shown, the court may grant an exception to any of the requirements of this rule requirement of N.D.R.Crim.P. 12.1 (a) - (c)
(e) Failure to Comply. If a party fails to comply with this rule, the court may exclude the testimony of any undisclosed witness regarding the defendant's alibi. This rule does not limit the defendant's right to testify.
(f) Inadmissibility of Withdrawn Alibi. Evidence of an intention to rely
upon on an alibi defense, later withdrawn, or of a statement s made in connection with that intention, is not, in any civil or criminal proceeding, admissible against the person who gave notice of the intention.
Rule 12.1 was amended, effective, January 1, 1980; January 1, 1988; March 1, 1990;_________________.
The original Rule 12.1 was is an adaptation of the proposed amendments to Fed.R.Crim.P. 12.1 (52 F.R.D. 432 (1971)) with changes to conform to the style as established in the North Dakota Rules of Criminal Procedure. This rule Rule 12.1 was amended, effective January 1, 1988, to conform to the language style of the 1985 amendment to Fed.R.Crim.P. 12.1. Subdivisions (a), (b) and (c) were amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Rule 12.1 was amended, effective ________. The language and organization of the rule were changed to make the rule more easily understandable and to make style and terminology consistent throughout the rules.
Provision for notice of alibi to be given to the prosecuting attorney by the defendant in a criminal case was passed by the Legislature at the 1969 session as N.D.C.C. § 29-14-28.
The provisions of Rule 12.1 changed and broadened these provisions , by requiring the prosecution to initiate the notice provisions, by including notice by the prosecuting attorney of any witnesses the prosecuting attorney may have to rebut the alibi testimony and by imposing to provide a continuing duty of disclosure on the part of both the prosecution and the defendant.
By amendment effective January 1, 1980, the initial burden
is again upon was placed on the defendant to raise the defense of alibi. This is accomplished done by serving written notice upon the prosecuting attorney within a specified time and filing the notice. The notice must list specific places and names of alibi witnesses as required by subdivision (a). Within the time specified, the prosecuting attorney must respond by serving written notice of the names of the prosecuting attorney's witnesses placing defendant at the location of the offense. Failure to comply with the notice requirements may result in exclusion of testimony on this issue by witnesses for the noncomplying party.
Subdivision (f) provides for the inadmissibility of a withdrawn alibi or statements made in connection with it, in any proceeding.
The Advisory Committee Note to the Proposed Amendments to the Federal Rules (April 1971) concerning the validity and constitutionality of an alibi notice rule is as follows: "Proposed rule 12.1 is new. It is based upon present rule 87 of the United States District Court Rules for the District of Columbia with changes designed to bring it into style conformity with the criminal rules and to make explicit that each party is under a continuing duty to give notice of additional witnesses which come to his attention between the time notice is originally given and the time at which the testimony is offered at the trial. "Doubts about the constitutionality of a notice-of-alibi rule were to some extent resolved by Williams v. Florida, 399 U.S. 78 (1970). In that case the court sustained the constitutionality of the Florida notice-of-alibi statute, but left unresolved two important questions. (1) The court said that it was not holding that a notice-of-alibi requirement was valid under conditions where a defendant does not enjoy 'reciprocal discovery against the State.' 399 U.S. at 82 n. 11. Under the proposed revision of rule 16 (Preliminary Draft of Proposed Amendments, January 1970) the defendant is entitled to substantially enlarged discovery in federal cases, and it would seem appropriate to conclude that, if the revisions of rule 16 are adopted, the federal rules will comply with the 'reciprocal discovery' qualification of the Williams decision. (2) The court said that it did not consider the question of the 'validity of the threatened sanction, had petitioner chosen not to comply with the notice-of-alibi rule.' 399 U.S. at 83 n. 14. This issue remains unresolved. Proposed rule 12.1 provides that the court 'shall exclude the testimony of any witness' whose name has not been disclosed pursuant to the requirements of the rule. The defendant may, however, testify. Prohibiting from testifying a witness whose name was not disclosed is a common provision in state statutes. See Epstein, supra (Advance Notice of Alibi, 55 J.Crim.L.C. & P.S. 29), at 35 (1964). It is generally assumed that the sanction is essential if the notice-of-alibi rule is to have practical significance. See Epstein, supra, at 36. "The Supreme Court of Illinois recently upheld an Illinois statute which requires a defendant to give notice of his alibi witnesses although the prosecution is not required to disclose its alibi rebuttal witness. People v. Holiday, 8 Cr. L. 2238 (Jan. 13, 1971) (265 N.E.2d 634 (Ill. 1970)). Because the defense complied with the requirement, the court did not have to consider the propriety of penalizing noncompliance. "The requirement of notice of alibi seems to be an increasingly common requirement of state criminal procedure."
SOURCES: Joint Procedure Committee Minutes of ________________, pages _____; April 20, 1989, page 4; December 3, 1987, page 15; January 23, 1986, page 7; January 25-26, 1979, pages 2-3; December 7-8, 1978, pages 30-32; October 12-13, 1978, page 2; April 24-26, 1973, page 9; May 11-12, 1972, pages 13-14;
Fed.R.Crim.P., Proposed Amendment, Preliminary Draft, 52 F.R.D. 432 (1971); Fed.R.Crim.P. 12.1.
Superseded: N.D.C.C. § 29-14-28.