RULE 16. DISCOVERY AND INSPECTION
(a) Disclosure of Evidence by Prosecuting Attorney.
(1) Information Subject to Disclosure.
(A) Statement of Defendant. Upon written request of a defendant, the prosecuting attorney shall disclose to the defendant and make available for inspection, copying, or photographing: (i) any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody, or control of the prosecution, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney; (ii) that portion of any written record containing the substance of any oral statement made by the defendant, whether before or after arrest, in response to interrogation by any person then known to the defendant to be an agent of the government; (iii) recorded testimony of the defendant before a grand jury concerning the offense charged; and (iv) the substance of any other oral statement made by the defendant whether before or after arrest in response to interrogation by any person then known by the defendant to be a government agent. Upon request of a If the defendant, which is an organization such as a corporation, partnership, association, or labor union, the prosecution must disclose to the defendant any of the foregoing statements made by a person the court may grant the defendant, upon its motion, discovery of relevant recorded testimony of any witness before a grand jury who the prosecution contends (i) was, at the time of making the statement testifying, was so situated as a an director, officer, or employee, or agent as to have been legally able to bind the defendant in respect to the subject of the statement conduct constituting the offense, or (ii) was, at the time of the offense, was personally involved in the alleged conduct constituting the offense and so situated as a an director, officer, or employee, or agent as to have been legally able to bind the defendant in respect to that alleged conduct in which the person was involved.
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(f) Demands for Production of Names, Addresses, and Statements of Witnesses; Statements of Codefendants; Statements of Other Persons.
(1) Names, Addresses, and Statements of Prosecution Witnesses. Upon written request of the defendant, the prosecution shall furnish to the defendant a written list of the names and addresses of all prosecution witnesses, and any statements made by them, whom the prosecuting attorney intends to call in the presentation of the case in chief, together with any records of prior felony criminal convictions of any of those witnesses which are within the knowledge of the prosecuting attorney. If a written request for discovery of the names, addresses, and statements of witnesses has been made by a defendant, the prosecuting attorney must be allowed to perpetuate the testimony of those witnesses in accordance with the provisions of Rule 15.
(2) Statements of Codefendants. Upon written request of the defendant, the prosecution shall permit the defendant to inspect and copy or photograph any relevant written or recorded confession, admission, or statement of a codefendant, or copies thereof, within the possession, custody, or control of the prosecution, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney.
(3) Statements of Other Persons. Upon written request of the defendant, the prosecution shall permit the defendant to inspect and copy or photograph any relevant written or recorded statement of any person, or copies thereof, within the possession, custody, or control of the prosecution, the existence of which is known to the prosecuting attorney and which is not available to the defendant under subdivision (a) or paragraph (1) or (2) of this subdivision.
(4) The term "statement," as used in this subdivision, means:
(i) a written statement made by the witness, codefendant, or other person and signed or otherwise adopted by the declarant; or
(ii) a stenographic, mechanical, electrical, or other record, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by the witness, codefendant, or other person to an agent of the prosecution and recorded contemporaneously with the making of the oral statement.
EXPLANATORY NOTE
Rule 16 was amended, effective September 1, 1983; March 1, 1990; March 1, 1994; _______________.
Rule 16 is an adaptation of Rule 16, FRCrimP. The Rule was revised, effective September 1, 1983.
Prior to the adoption of this Rule, discovery proceeded on an informal basis. The only requirement placed upon the prosecutor was the constitutional imperative that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to the guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 104, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215 (1963).
While the rule, as amended, provides greater discovery, it is intended to prescribe only the minimum amount of discovery to which the parties are entitled. It is not intended to limit the judge's discretion to order broader discovery in appropriate cases. Nor is it intended to prevent the voluntary disclosure of other evidence or material by the parties at any time.
Subdivision (f) was adopted, effective September 1, 1983. The provisions were drawn from Rules 421 and 422, Uniform Rules of Criminal Procedure (1974); Standard 11-2.1, American Bar Association Standards for Criminal Justice (2d Ed. 1980); and subdivision (a)(1)(E) of the proposed amendment of Rule 16, FRCrimP, transmitted to Congress by the U.S. Supreme Court on April 22, 1974.
Subdivision (f) does not require, as did former subdivision (i), that the person whose statement is produced must first have testified on direct examination. It is intended that the listed statements be discoverable at any point in the proceedings.
Subdivisions (a),(b),(c) and (f) were amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Subdivision (a)(1)(A) was amended, effective March 1, 1994, in response to the 1991 federal amendment. The amendment to North Dakota's rule requires the prosecution, upon written request, to disclose that portion of any written record containing the substance of any oral statement made by the defendant in response to interrogation by any person then known to the defendant to be an agent of the government. The amendment also requires the prosecution, upon written request, to disclose the substance of any oral statement made by the defendant in response to interrogation by any person then known by the defendant to be an agent of the government.
Unlike the federal rule, North Dakota's rule does not allow the government to assess whether a written record containing the substance of an oral statement, or the substance of an oral statement, is relevant. The written record containing the substance of any oral statement, or the substance of any oral statement, must be disclosed regardless of whether the prosecution considers the oral statement relevant, and regardless of whether the prosecution intends to use the oral statement.
Sources: Procedure Committee Minutes of April 25, 1996, page 15; January 25-26, 1996, pages 22-23; April 27-28, 1995, pages 2-3; September 29-30, 1994, pages 7-9; April 28-29, 1994, pages 12-14; April 29-30, 1993, pages 10-11; January 28-29, 1993, pages 12-13; April 20, 1989, page 4; December 3, 1987, page 15; February 17-18, 1983, pages 5-11; November 18-19, 1982, pages 5-10; September 30-October 1, 1982, pages 3-6; April 15-16, 1982, page 1; December 7-8, 1978, pages 9-13; October 12-13, 1978, pages 3-8; September 27, 1974, page 4; October 17-20, 1972, pages 1-2; June 26-27, 1972, pages 9-14; December 11-12, 1968, pages 4-13; Rule 16, FRCrimP.
STATUTES AFFECTED: None.
CROSS REFERENCES: Rule 17.1-Omnibus Hearing and Pretrial Conference, NDRCrimP; Rule 612, NDREv. See also, Chapters 29-10.1 (Grand Jury) and 29-10.2 (State Grand Jury), NDCC.