MINUTES OF MEETING
Joint Committee of the Judicial Council
and the State Bar Association
Joint Procedure Committee
January 25-26, 1979
CALL TO ORDER
The meeting was called to order at 1:00 p.m., January 25, 1979, by Justice Paul M. Sand, Chairman.
Hon. Eugene A. Burdick
Hon. James H. O'Keefe
Hon. Robert Vogel
Mr. Leonard H. Bucklin
Mr. David L. Peterson
Hon. Gerald G. Glaser
Hon. Halvor L. Halvorson
Hon. Larry Hatch
Hon. Robert C. Heinley
Hon. William S. Murray
Hon. Kirk Smith
Mr. Ward M. Kirby
Mr. Larry Kraft
Mr. James L. Lamb
Mr. LeRoy A. Loder
Mr. Richard A. McKennett
Mr. Herbert L. Meschke
Mr. Russell G. Nerison
APPROVAL OF MINUTES
Judge Burdick MOVED to approve the Minutes of the December 7-8, 1978, meeting as submitted, except for some style changes and minor typographical errors. Mr. Bucklin seconded the motion. Motion CARRIED.
Judge Burdick MOVED to amend the Minutes of the October 12-13, 1978, meeting to restore the following language to Rule 11(d)(3): "or another disposition more favorable to the defendant than that provided for in the plea agreement." Judge Vogel seconded the motion. Motion CARRIED.
Judge Burdick MOVED to approve the Minutes of the October 12-13, 1978, meeting as amended. Mr. Peterson seconded the motion. Motion CARRIED.
EXPLANATORY NOTE - RULE 12.1, NDRCrimP
Judge Burdick MOVED to adopt the explanatory note to Rule 12.1. Judge Vogel seconded the motion. Motion CARRIED.
The original Rule 12.1 was an adaptation of the proposed amendments to Rule 12.1, F.R.Crim.P. [52 F.R.D. 432 (1971)] with changes to conform to the style as established in the North Dakota Rules of Criminal Procedure.
Provision for notice of alibi to be given to the prosecuting attorney by the defendant in a criminal case was passed by the Legislature in the 1969 session as Section 29-14-28, N.D.C.C. The provisions of Rule 12.1 change and broaden these provisions by requiring the prosecution to initiate the notice provisions, by including notice by the prosecuting attorney of any witnesses he may have to rebut the alibi testimony and to provide a continuing duty of disclosure on the part of both the prosecution and the defendant.
By amendment [effective _______________], the initial burden is again upon the defendant to raise the defense of alibi. This is accomplished 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 his 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 evidence 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 himself. 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."
EXPLANATORY NOTE - RULE 12.2, NDRCrimP
Judge Burdick MOVED that the staff attorney re-draft the last paragraph of the explanatory note to Rule 12.2 in line with the suggestions of the Committee. Mr. Peterson seconded the motion. Motion CARRIED.
Rule 12.2 is an adaptation of the proposed amendment to Rule 12.2, F.R.Crim.P. [52 F.R.D. 435 (1971)]. It is modified only in style to be consistent with these Rules. See also the reference to amendments below.
The Advisory Committee Note of the Proposed Amendments to the Federal Rule (April 1971) provides as follows:
"Proposed rule 12.2 is designed to require a defendant to give notice prior to trial of his intention (1) to rely upon the defense of insanity or (2) to introduce expert testimony of mental disease or defect on the theory that such mental condition is inconsistent with the mental state required for the offense charged. The objective is to give the government [prosecution] time to prepare to meet the issue, which will usually require reliance upon expert testimony. Failure to give advance notice commonly results in the necessity for a continuance in the middle of a trial, thus unnecessarily delaying the administration of justice."
"Requiring advance notice of the defense of insanity is commonly recommended as a desirable procedure. The Working Papers of the National Commission on Reform of Federal Criminal Laws, Vol. 1, p. 254 (1970), state in part:
It is recommended that procedural reform provide for advance notice that evidence of mental disease or defect will be relied upon in defense . . .
"Requiring advance notice is proposed also by the American Law Institute's Model Penal Code, § 4.03 (P.O.D. 1962), The commentary in Tentative Draft No. 4 at 193-194 (1955) indicates that, as of that time, six states required pretrial notice and an additional eight states required that the defense of insanity be specially pleaded.
"Subdivision (a) deals with notice of the 'defense of insanity.'***
"Subdivision (b) is intended to deal with the issue of expert testimony bearing upon the issue of Whether the defendant had the 'mental state required for the offense charged.'
"Subdivision (b) does not attempt to decide when expert testimony is admissible on the issue of the requisite mental state. It provides only that the defendant must give pretrial notice when he intends to introduce such evidence. The purpose is to prevent the need for a continuance when such evidence is offered without prior notice. ***"
Several amendments [effective _____________] were made to this rule, with a twofold purpose. Several of the changes bring the rule into substantial conformity with the present Federal Rule 12.2. The remainder of the changes were necessary to comply with statutory changes.
When Rule 12.2 was originally promulgated in 1973, it was adopted from the proposed Federal Rule, as explained above. Subsequently, several amendments were made to the proposed Federal Rule before it was adopted. These are now substantially incorporated into this rule.
Subdivision (a) now requires a defendant intending to rely on the defense of lack of criminal responsibility to notify the prosecution of his intention in open court or in writing, within a specified time, and to file the notice. If no notice is given, the defendant is prohibited from raising the defense.
Subdivision (c) provides for examination of the defendant by a courtdesignated psychiatrist when the defendant has raised the issue under this rule. Statements made by the defendant during the course of the examination shall not be used as evidence in any proceeding.
Failure to give notice under subdivision (b) or to submit to examination may result in the exclusion of any testimony by defendant's expert witness, as provided in subdivision (d).
All references to "insanity" have been deleted from the rule. The current test is found in § 12.1-04-03, NDCC, as amended, and refers to the "defense of lack of criminal responsibility by reason of mental disease or defect." See State v. Jensen, 251 N.W.2d 182 (N.D. 1977).
EXPLANATORY NOTE - RULE 15, NDRCrimP
Judge Vogel MOVED to adopt the explanatory note to Rule 15. Mr. Peterson seconded the motion. Motion CARRIED.
Rule 15 is substantially the same as Rule 431, Uniform Rules of Criminal Procedure (1974). Former Rule 15, effective until _____________, was an adaptation of Rule 15, F.R.Crim.P. The present rule provides for a greatly expanded use of depositions in criminal cases.
Subdivision (a) permits depositions to be taken to perpetuate testimony, as in the former rule, but also for discovery purposes, which was not previously provided for. Rather than requiring court approval of discovery depositions, this subdivision changes the emphasis by allowing them without court approval, subject to the right of a party or deponent to move under paragraph (4) to have a court order that the deposition be continued, not taken, or limited in scope or manner of taking. The court will set a time after which discovery depositions may not be taken without court permission. Leave of court is required for the taking of a deposition to perpetuate testimony.
Subdivision (b) provides a method for securing the attendance of a deponent who would not respond to a subpoena. In addition, to ensure confrontation with the presence of the defendant required by subdivision (f)(2) to use the deposition at trial, the prosecuting attorney may move the court for an order to secure defendant's presence at the taking of a deposition.
Requirements for notice of the taking of a deposition are set forth in subdivision (c). The court may change the noticed time, place, or manner of recording upon motion of the deponent, as well as any party.
Subdivision (d) specifies that a deposition be taken in the same manner as in civil actions, with certain exceptions. Paragraph (1) covers depositions on enclaves over which the State of North Dakota lacks jurisdiction, such as Indian reservations, as well as depositions outside the physical boundaries of the state. Paragraph (2) allows depositions to be recorded by other than stenographic means, without a court order. Provision is made in paragraph (3) for a court to designate an official to preside over a deposition upon a showing of misconduct by a party or the deponent.
The place of taking a deposition is governed by subdivision (e). Restriction is placed on taking depositions outside of this state in situations where the defendant may not travel or be transported to the proposed location, unless he waives the right to be present.
Subdivision (f) concerns the presence of the defendant at a deposition. Distinction is made between a discovery deposition and one to perpetuate testimony. The defendant is not required to be present at a discovery deposition, but his presence may enable the prosecution to use the deposition as substantive evidence at trial, as provided in subdivision (h). The taking of a deposition to perpetuate testimony necessitates the defendant's presence, with three exceptions: defendant is excused by the court upon an appearance and voluntary waiver of the right to be present; defendant voluntarily absents himself after start of deposition; or if a judicial officer presiding over the deposition justifiably excludes the defendant because of his disruptive conduct. No warning is expressly required before exclusion, as in Rule 43(b)(2). If the defendant is not present at a deposition to perpetuate testimony under one of the above exceptions, his counsel must be.
Paragraph (3) of subdivision (f) covers the situation when the defendant is not present at the start of a deposition to perpetuate testimony and has not been excused under paragraph (2). The taking may proceed as a discovery deposition or the prosecuting attorney, if he is taking the deposition, may postpone the taking and secure a court order to take the defendant into custody to assure his presence, so that the deposition will have the greater admissibility of a perpetuation deposition.
Subdivision (h) provides for using a deposition as substantive evidence if the deponent is unavailable. The definition of "unavailability" is taken from Rule 804(a) of the North Dakota Rules of Evidence, in the interest of uniformity. This use of a deposition as substantive evidence also applies to discovery depositions upon court determination of fairness and, if offered by the prosecution, that the defendant was present at its taking.
UNIFORM AUDIO-VISUAL DEPOSITION RULE
Judge Burdick MOVED to amend the proposed draft of the uniform audio-visual deposition rule on line 2, after the word "deposition" add "upon oral examination." Mr. Bucklin seconded the motion. Motion CARRIED.
Judge Burdick MOVED to amend the proposed draft of the audio-visual deposition rule on line 9 to delete the words "by an official court reporter" and insert "in accordance with Rule 30(c)." Mr. Bucklin seconded the motion. Motion CARRIED.
Mr. Peterson MOVED that the same type of language be inserted in the commentary in the second sentence, second paragraph, of page 44, of the proposed draft. Judge Burdick seconded the motion. Motion CARRIED.
Mr. Bucklin MOVED to eliminate the brackets on section 1(c). Judge Burdick seconded the motion. Motion CARRIED.
Mr. Bucklin MOVED that the staff attorney rewrite the third paragraph of the explanatory note, page 44 of the proposed draft; and delete the last paragraph of the explanatory note.
The uniform audio-visual deposition rule is to be assigned No. 30.1.
The comment on section 5, page 47 of the proposed draft, is to be deleted.
Judge O'Keefe MOVED to delete section 6 of the proposed draft, page 47. Mr. Peterson seconded the motion. Motion CARRIED.
Judge Burdick MOVED that sections 7, 8 and 9 of the proposed draft be deleted, but that the subject matter be referred to in the explanatory note. Mr. Peterson seconded the motion. Motion CARRIED.
Judge Burdick MOVED to adopt Rule 30.1, as amended. Mr. Peterson seconded the motion. Motion CARRIED.
UNIFORM AUDIO-VISUAL DEPOSITION RULE
(a) Authorization of Audio-Visual Deposition.
(1) Any deposition upon oral examination may be recorded by audio-visual means without a stenographic record. Any party may make at his own expense a simultaneous stenographic or audio record of the deposition. Upon his request and at his own expense, any party is entitled to an audio or audio-visual copy of the audio-visual recording.
(2) The audio-visual recording is an official record of the deposition. A transcript prepared in accordance with Rule 30(c) is also an official record of the deposition.
(3) On motion the court, for good cause, may order the party taking, or who took, a deposition by audio-visual recording to furnish, at his expense, a transcript of the deposition.
(b) Use. An audio-visual deposition may be used for any purpose and under any circumstances in which a stenographic deposition may be used.
(c) Notice. The notice for taking an audio-visual deposition and the subpoena for attendance at that deposition must state that the deposition will be recorded by audio-visual means.
(d) Procedure. The following procedure must be observed in recording an audio-visual deposition:
(1) Opening of Deposition. The deposition must begin with an oral or written statement on camera which includes:
(A) the operator's name and business address;
(B) the name and business address of the operator's employer;
(C) the date, time, and place of the deposition;
(D) the caption of the case;
(E) the name of the witness;
(F) the party on whose behalf the deposition is being taken; and
(G) any stipulations by the parties.
(2) Counsel. Counsel shall identify themselves on camera.
(3) Oath. The oath must be administered to the witness on camera.
(4) Multiple Units. If the length of the deposition requires the use of more than one recording unit, the end of each unit and the beginning of each succeeding unit must be announced on camera.
(5) Closing of Deposition. At the conclusion of a deposition, a statement must be made on camera that the deposition is concluded. A statement may be made on camera setting forth any stipulations made by counsel concerning the custody of the audio-visual recording and exhibits or other pertinent matters.
(6) Index. Depositions must be indexed by a time generator or other method specified pursuant to Section 6.
(7) Objections. An objection must be made as in the case of stenographic depositions.
(8) Editing. If the court issues an editing order, the original audio-visual recording must not be altered.
(9) Filing. Unless otherwise stipulated by the parties, the original audio-visual recording of a deposition, any copy edited pursuant to an order of the court, and exhibits must be filed forthwith with the clerk of the court.
(e) Costs. The reasonable expense of recording, editing, and using an audio-visual deposition may be taxed as costs.
Mr. Rolfson joined the meeting at this point and announces that he was resigning his position in the Attorney General's office to accept a position in Fargo, and that he would be sending in his resignation as a member of the Joint Procedure Committee.
RULE 412, NDREv
Mr. Rolfson MOVED to defer consideration of the proposed Rule 412 until the next meeting when more of the members would have an opportunity to study the proposal. Judge O'Keefe seconded the motion. Motion CARRIED.
Mr. Rolfson MOVED that the dates of April 19-20, April 26-27 and May 3-4 be considered for the next meeting date and that the membership be polled as to which time would be the most convenient for the greatest number, and the next meeting date set accordingly. Mr. Peterson seconded the motion. Motion CARRIED.
The meeting adjourned to 9:00 a.m. January 26, 1979.
CALL TO ORDER
The meeting was called to order at 9:30 a.m., January 26, 1979, by Justice Paul M. Sand, Chairman.
Hon. Eugene A. Burdick
Hon. James H. O'Keefe
Hon. Robert Vogel
Mr. Leonard H. Bucklin
Mr. David L. Peterson
SETTLEMENT OF MINOR'S ACTIONS
Judge O'Keefe MOVED that Mr. Bucklin prepare for the next meeting of this committee a proposed rule for adoption, and at that time the committee can further discuss the matter, and that the rule proposed by Mr. Bucklin would be a rule of the district court or a civil procedure rule. Mr. Peterson seconded the motion. Motion CARRIED.
COUNTY JUSTICE COURT JURY
Judge O'Keefe MOVED that the Supreme Court use whatever procedure is necessary to implement the use of the Uniform Jury Selection Act by all courts. Judge Vogel seconded the motion. Motion CARRIED.
Judge Burdick MOVED that the staff attorney draft a bill to amend § 33-12-19, NDCC, which would change the number of jurors from 12 to 6 to conform with the Rules of Criminal Procedure. Mr. Bucklin seconded the motion. Motion CARRIED.
Judge Burdick MOVED to adjourn. Mr. Peterson seconded the motion. Motion CARRIED.