MINUTES OF MEETING
Joint Committee of the Judicial Council
and the State Bar Association
on Rules of Criminal Procedure
December 19, 1973
The meeting was called to order at 10:00 a.m. by Mr. Paul Sand, vice chairman, while Justice Vogel was in attendance at the Judicial Council meeting.
Hon. Robert Vogel, Chairman
Mr. Wallace Berning
Hon. Eugene A. Burdick
Hon. Gerald Glaser
Mr. John Graham
Hon. Larry Hatch
Hon. R. C. Heinley
Mr. Kent Higgins
Hon. Roy A. Ilvedson
Mr. Larry Kraft
Hon. Norbert Muggli
Hon. William S. Murray
Hon. Harry Pearce
Mr. Roger Persinger
Mr. Paul Sand
Mr. John Shaft
Hon. Kirk Smith
Jon Nelson, Law Clerk
Linda Ohlsen, Secretary
CHAIRMAN OF COMMITTEE
William S. Murray nominated Justice Robert Vogel for the permanent chairman. Motion was seconded by Wallace Berning. Wallace Berning then MOVED that nominations be closed and that the secretary be instructed to cast a unanimous ballot for Justice Vogel for permanent chairman. Seconded by Larry Kraft. CARRIED unanimously.
REQUIREMENT OF THE VERBATIM RECORD - RULE 11f
Justice Vogel stated to the committee that while he attended a meeting of the state's attorneys he received a number of complaints about the necessity of keeping verbatim records and that there has been very little sympathy shown them in this regard. As chairman, Justice Vogel called upon
Paul Sand to discuss complaints he had received.
Mr. Sand referred to a letter he received from Neil Thompson, State's Attorney from Devils Lake, wherein Mr. Thompson asked if it was possible for a defendant to waive the requirement of the verbatim record. To Mr. Thompson's question, Mr. Sand wrote a reply letter (appendix A) in which he stated that the rule is mandatory and any waiver would have to be supported by a verbatim record to clearly illustrate that the defendant intelligently and voluntarily waived the requirements of the rule.
Judge Burdick commented that a verbatim record of an appearance in municipal court could be worked out on a form. He also mentioned tape recording and indicated that if tape recording can be used in juvenile court, it could also be used in municipal court or in county justice court. He then raised the question as to whether or not it was necessary to keep the verbatim record beyond the expiration of the sentence of the defendant.
Judge Smith said that he felt that a single 8 ½ x 13 page could be devised which can be used as a verbatim record and signed by the Judge with a certificate that it is a verbatim record.
Judge Burdick MOVED that Rule 11f be left as it is drafted. Mr. Sand seconded the motion.
Judge William Murray asked the committee what the exact purpose of the committee is. Justice Vogel stated that he understood the function of the committee was to act as a continuing body to take and make suggestions to the rules to the Supreme Court for adoption by the Supreme Court.
Justice Vogel asked for discussion on Judge Burdick's motion. Judge Pearce stated to the committee that there is a committee that is in the process of devising a manual for municipal courts regarding applicability of criminal rules to municipal courts. He stated that he felt there may be a problem when a verbatim record is required of a court not of record. This, he feels, becomes somewhat nonsensical for the reason that even though there may be an appeal, the record is never looked at again. He stated that it seems a bit useless to require a record when no use will ever be made of it. There are municipal courts that cannot afford a tape recorder, and of all the municipal judges, there are only fourteen who are lawyers. These municipal court judges have no conception of what these rules are about and are more confused now than they were before the rules were adopted. This Judge Pearce finds true from talking with lay judges. He stated that the Traffic Court Procedural Manual Committee, of which Judge Glaser is chairman, will draft rules comparable to the simplified rules of procedure of U. S. Magistrates as opposed to the federal courts. He advised that a resolution has been drafted by Judge Smith relative to this.
Judge Burdick withdrew his motion to leave Rule 11f as it is drafted.
Judge Glaser read the resolution drafted by Judge Smith and stated that the committee was appointed by Justice Strutz as a manual committee of the Judicial Council. He stated that the committee has come up with drafts but have not been happy with them. There seems to be no way possible that one can come up with a simple and concise manual for the municipal courts. Judge Glaser's committee has come to the conclusion that they will formulate a set of rules and procedures for municipal courts and submit them to the Joint Committee on Rules, and ultimately submit them for approval by the Supreme Court. He stated that the members of the committee are Judge Kirk Smith, Judge Halvor Halvorson, County Justice R. C. Heinley, Municipal Judge Frank Hallowell, Municipal Judge Harry Pearce and Judge Glaser as chairman.
Justice Vogel related to the committee that perhaps a motion to leave the rule in its present form should be made but there should also be a request of Judge Glaser's committee to bring recommendations at the next meeting of the Joint Committee of Rules.
Judge Burdick MOVED that Judge Glaser's committee submit a draft of procedures applicable to the municipal courts. Judge Murray seconded the motion. Motion CARRIED unanimously.
The following is the Resolution of the Traffic Court Procedural Manual Committee:
WHEREAS, the Traffic Court Procedural Manual Committee having met on December 17, 1973 at Bismarck to consider the publication of procedural manual for courts handling traffic matters in the State of North Dakota; and
WHEREAS, the applicability of the new North Dakota Rules of Criminal Procedure to municipal courts of this state has raised questions of the propriety of such application to the circumstances of the municipal courts; and
WHEREAS, it is the unanimous opinion of the committee that an abbreviated set of rules for the municipal courts should be adopted for this state as a substitute for the existing rules now made applicable to all the trial courts of this state.
NOW, THEREFORE, the undersigned members of the said committee request that leave be granted to the Traffic Court Manual and Procedures Committee to prepare a set of proposed rules for municipal courts and that such proposed rules be referred to the Joint Committee of the Judicial Council on Criminal Rules for submission to the Supreme Court for adoption as the Municipal Court Rules of Procedure.
Dated this 19th day of December, 1973.
Judge Kirk Smith
Judge Halvor V. Halvorson
County Justice R. C. Heinley
Municipal Judge Frank Hallowell
Municipal Judge Harry Pearce
By: (Gerald G. Glaser)
Judge Gerald G. Glaser,
Burleigh County Chairman
DISCOVERY AND INSPECTION - RULE 16c
Regarding this rule, Mr. Wallace Berning stated that the way the rule is worded now there is no discovery unless the defense uses its right for discovery. (see appendix B) He states that there are several states that are trying to extend discovery. He would like to see the rule changed to the point where it would not be contingent upon the Defendant's obtaining discovery relief from the Court. He argued that it is irritating when the attorney is trying a case and witnesses are there that the attorney did not know about. This delays the hearing.
Judge Murray stated that he is against expanding the right of the state's discovery. Mr. Kent Higgins also stated that he would have reservations concerning the expansion and asked whether the instruction in Rule 16c should be modified.
Judge Burdick proposed an amendment to Rule 16c as follows:
"If the Court grants or the prosecuting attorney extends relief sought by the defendant . . . ."
The committee came to the conclusion that they would prefer seeing any amendments in written form. Judge Smith suggested that a procedure should be adopted wherein the amendment to a rule would be printed in draft form and circulated to the members of the committee and to the staff before the next meeting.
Mr. Kent Higgins stated that "scientific or medical reports" could be deemed polygraph tests. It would be most loath to disclose those materials. Discussion followed regarding what reports would fall within this heading.
Judge Burdick MOVED, seconded by Judge Larry Hatch and CARRIED that the chairman appoint a subcommittee of one or more to draft a proposed revision of Rule 16c with the thought in mind that the prosecution may obtain the discovery permitted by the division if the prosecuting attorney has granted a request of the defendant for discovery without court order under subdivisions (a) or (b).
Justice Vogel appointed the following members to serve on the committee which will draft a proposed revision of Rule 16c: Wallace Berning, Kent Higgins, and Judge Roy Ilvedson.
DISCUSSION OF ERRORS
Mr. Paul Sand advised the joint committee that the code reviser was advised to instruct the printer in regard to the rules where a difference exists between a list of statutes or the explanatory notes. The rule prevails over the list of statutes and the list of statutes is to be a reflection of the rules. (see appendix C and D).
Among the errors presented to the committee by Mr. Sand were the following: The table of statutes lists Section 27-01-03 as superseded by Rule 56. Rule 56 lists that statute as considered. The same is true of Section 27-07-15, it is listed as superseded but the rule lists it as a statute considered and then Section 29-01-11 by the table is listed as superseded but the rule states it was considered. Also, Section 40-18-04 according to the table is listed as superseded but according to the rule it is considered. There is also a reference to Section 29-13-15 in the table as being superseded and there is no section by that number. Section 31-11-02 is listed as superseded by Rule 26 and Rule 26 lists Chapter 31-11 as considered, it did not supersede any sections. The Code Reviser was advised to inform the printer that these corrections should be made, that the table is in error and that the rule actually controls. He was also advised that the reference made to Section 29-13-15 be deleted from the table of statutes. Mr. Sand requested that possibly someone could make a motion that these corrections were in order.
It was stated that when the appearance was made before the Supreme Court there was no mention of the table of statutes or the index. It was assumed that the table or the index would reflect what was in the rules.
Mr. Kent Higgins MOVED that the actions taken to correct these errors be ratified. Mr. Wallace Berning seconded the motion. Judge Glaser asked if there is some way mechanically that the errors can be brought to the attention of the lawyers. Mr. Sand stated that Volume 5 will be printed as a replacement volume with the statutes in accordance with the advice that has been given. Judge Heinley asked the chairman if the volume that he presently has in possession will be changed. Mr. Sand said that he anticipated that it will be changed as the rules are modified. He stated that there will be an identifying mark on the page that has been amended. He also stated that it was felt that there would be less harm in making the changes than in leaving them. He then asked for more discussion. The motion CARRIED.
Further discussion of errors followed. Relating to Rule 51, Mr. Sand stated that the table of statutes pertaining to Section 29-17-22 is not in the table but going to Rule 51, there it is listed as superseded. Rule 51 pertains to exceptions, and there is no specific relation to Rule 51. Section 29-17-22 has meaning only if Section 29-17-21 is read also. Section 29-17-21 pertains to the challenge of a jury panel. This was found to be an inconsistency and in going back to the minutes of Rule 51, it was found that this section was superseded by Rule 24. In going to Rule 24, it is found that this is not true. Mr. Sand stated that he came to the conclusion that it is obviously an error that Section 29-17-22 should not have been mentioned at all. In that respect, Mr. Sand stated that the advice was given that Section 29-17-22 should be treated as not superseded.
Mr. Sand requested that a motion be entertained which would confirm or ratify the actions taken by Mr. John Graham in regard to Section 29-17-22. Judge Murray MOVED that the actions taken to correct these errors be ratified. The motion was seconded by Mr. Higgins and CARRIED.
The next item discussed by the joint committee was Section 1-03-01, Holidays. That Section at the time it was considered had 14 subsections, however, the section ended with 12 subsections. It is also listed as considered not superseded. To eliminate someone spending time looking for subsection 13 and 14, it was decided that it would be best to delete them.
Mr. Sand referred to Judge Burdick's letter of November 16 (appendix E) in which he states that Sections 27-01-03, 27-27-15 and 29-18-01 appear to qualify for superseding for criminal process only. It was felt by the members of the committee that perhaps Judge Burdick meant Section 27-07-15
instead of Section 27-27-15. This discussion was tabled until the next meeting since Judge Burdick was absent at the moment of this discussion. Mr. Higgins inquired as to what was contained within Section 29-18-01. This Section was read by Mr. Sand:
29-18-01. PROSECUTION TO BE DISMISSED, CONDITIONS REQUIRING - INFORMATION OR INDICTMENT. The Court, unless good cause to the contrary is shown, must order a prosecution to be dismissed if:
1. A person has been held to answer for a public offense and an information is not filed or an indictment found against him at the next general term of the district court at which a jury is called;
2. A defendant whose trial has not been postponed upon his application is not brought to trial at the next term of the district court in which the information or indictment is triable after it is filed, if an information, or, after it is found, if an indictment.
Mr. Sand felt that Judge Burdick would have some comment to make regarding Section 29-18-01, however, he stated that he feels that the statute is purely a criminal statute and applies only to criminal process. Mr. Kent Higgins asked if Judge Burdick may be referring to quasi-criminal actions. Further discussion was passed until Judge Burdick returns or until the next meeting.
In discussing Section 31-11-02, it is listed as superceded by Rule 26. It has been changed to considered.
Mr. Sand commented that he felt that the committee did a fine job in putting the Rules of Criminal Procedure together considering the conditions under which the committee worked having found only a few errors. He stated that these corrections will be made with the publication of a Volume 5 and that this volume should be out in the early part of next year.
In further discussion, Mr. Kent Higgins stated that a change should be made in the explanatory note on page 65 and 66 to comply with Rule 16. This change would be not to require disclosures until the testimony and trial. Mr. Sand requested that Mr. Higgins prepare a revised explanatory note and submit it to the committee at the next meeting.
COMPLIANCE WITH SECTION 12-60-11 and SECTION 12-60-12 IN CASES WHERE A SUMMONS IS USED
Mr. Berning stated that he feels that in order to comply with the national prosecution standpoint, the rules be changed to require that any
accused who is served with a summons submit to identification procedures, that is, "mugging and printing". This change, he stated, could be brought about by changing the rules or through the Legislature at the next session. Mr. Sand asked if he was concerned with criminal proceedings as opposed to traffic. Mr. Berning stated that he was concerned only with the criminal proceedings. Mr. Sand stated that a recommendation could be made to the Legislature if that would be the wish of the committee. Judge Pearce stated that a summons is merely another way to compel someone to have his picture taken and fingerprints taken without being arrested. Judge Smith presented the following example to the committee members: In the event that someone comes in on a summons, bail is fixed, there is no personal recognizance and the defendant does not have the bail on him. It is customary in such cases that the mugging and fingerprinting will take place immediately. Mr. Jon Nelson suggested that as a condition to be released the defendant would be fingerprinted and mugged. Judge Glaser argued that a summons is used only when the defendant is expected to appear, otherwise an arrest warrant is used. He stated that the test is simply a matter of exercising the judgment of whether the defendant will appear or not.
Mr. Sand said to the members of the committee that this issue maybe re-opened at another time. No decision was made regarding the use of identification procedures when someone is brought in on a summons.
Mr. Sand recessed the meeting for lunch. A MOTION was made by Mr. Higgins to reconvene at 1:30 p.m.
The meeting was called to order by Mr. Paul Sand, Vice Chairman.
EXTENT OF COMPLIANCE WITH RULE 44 IN MISDEMEANOR CASES.
Mr. Sand stated that Rule 44 relates specifically to municipal court in the State of North Dakota. Mr. Nelson stated that he knows of at least one county where there has not been compliance with this rule and mentioned that this may be happening in others. Mr. Berning stated that it is not being complied with in the city court of Minot for the reason that there are no funds. Bismarck is applying the rule according to Judge Pearce. However. Judge Pearce stated that there are perhaps 90 per cent of the municipal courts who are not complying with the rule and one of the reasons is that they can never dig this material out of the Criminal Rules book. Other reasons given by Judge Pearce included that of the judge pre-determining that he will not appoint a counsel regardless in some instances. Also, many of the municipalities do not have a
place to confine a prisoner. Referring to Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972), Judge Pearce stated that according to this case a court cannot legitimately impose a fine that obviously the defendant cannot pay. If that is being done, he contends it is in violation of the rules. In other words, if a fine was imposed on the defendant, the only time he could be found in contempt of court is when the defendant refuses to pay but is able to pay. A defendant cannot be found in contempt of court and given a jail sentence if he is unable to pay. Mr. Higgins stated that he would like to see the defendant have a right to counsel if the individual has a justification in not paying the fine. Mr. Sand explained that the contempt is criminal if the order or right violated pertains to a public right rather than a private right. He stated that the situation discussed by the committee is a criminal contempt rather than a civil contempt. Mr. Higgins said that under Rule 44 the defendant has a right to representation at every part of the proceeding, however, the defendant is not always aware of this. Also, often times the jailer may not get the message to the defendant. Judge Glaser argued that in misdemeanor cases or violations of municipal ordinances there is no way of the jailer knowing whether the defendant can have an attorney until the judge makes that decision. There having been discussion on this rule, Mr. Sand asked the members of the committee if they felt that there should be revision of Rule 44. Mr. Higgins suggested that it might be pertinent not to modify the rule but to indicate what is required by the rule, that is, that from the moment of the arrest of the defendant, he is entitled to counsel and if necessary court appointed counsel. Mr. Sand asked Mr. Higgins to submit to the staff prior to the next meeting some revision of the explanatory note concerning this rule. Mr. Nelson offered his assistance to Mr. Higgins in this regard. Mr. Higgins also stated that he is trying to get some statewide figures to counsel appointed or not appointed and inquired if this would be appropriate. Mr. Sand answered by stating that the Judicial Council is proposing to acquire or make available some LEAA funds to be used in this regard. However, he indicated this is somewhere in the future.
CAN THERE BE A RIGHT OF APPEAL BY THE STATE FROM ORDERS SUPPRESSING EVIDENCE
Mr. Sand posed the following question: If you go through the trial and the motion to suppress has been granted and you continue through the trial and get an acquittal and then at that point you ask for an appeal and the Supreme Court says the motion should not have been granted - what happens then to the double jeopardy? He stated that it does not appear that there is a direct appeal from that but he finds that there is quite a problem if an appeal is taken after the trial. Judge Glaser commented that most judges are aware of the fact that they are faced with this situation knowing that the state cannot appeal, at least that is the assumption. Mr. Sand referred the committee members to Rule 12(b), pretrial motions, and subsection 3 and stated that
most of the motions are on the grounds that the evidence was obtained illegally. He further stated that he is inclined to believe that the right of appeal would have to be provided by statute and not by rule. This, he felt, would be an item that might be considered by the State's Attorneys Association and also have the Legislature consider it. Judge Pearce then commented that it was never the thought of any member of the committee that they get involved with the pros and cons of getting an appeal for suppression. He stated that this is not the business of the joint committee. Mr. Sand stated that the right of appeal is by statute.
Mr. Berning again raised a question concerning the discovery rule, Rule 17(a), wherein he stated that when a subpoena is issued in blank the prosecution has no way of knowing who will be interviewed as a witness. Mr. Persinger replied that in federal court, the subpoenas are issued in blank. Mr. Berning stated that a defendant who has the ability to pay the witnesses could be served by a clerk or have the attorney in the firm serve them without the State being aware of it except where the State pays an indigent's court appointed attorney. Judge Heinley asked why subpoenas are issued in blank. Mr. Berning replied that it is mainly a surprise issue. He stated that the rules did not help the discovery issue very much. Mr. Higgins posed the question as to who pays the witnesses in a non-indigent defendant's case. Mr. Berning stated that in Ward County it is the practice of the county to pay the defense witness.
It was suggested that in the future anyone that might want to make a change in a specific rule that a draft be formulated and sent to each member of the committee before the next meeting.
NEXT MEETING DATE
In discussing plans for the next meeting, it was noted by Mr. Sand that this committee may be taking on the Rules of Evidence. However, Judge Pearce stated that there is a Bar Association committee that is working on the draft of those rules at this time.
Regarding a date for the next meeting, Judge Hatch suggested March 28 or 29. The date agreed upon was March 29 at 10:00 a.m. A letter and agenda will be sent to the members beforehand. Judge Glaser MOVED to adjourn the meeting. It was seconded by Mr. Higgins and CARRIED.