MINUTES OF MEETING
Joint Procedure Committee
January 27-28, 2005
TABLE OF CONTENTS
Rule 12, N.D.R.Crim.P. - Pleadings and Pretrial Motions Before Trial; Defenses and
Objections 3
Rule 12.1, N.D.R.Crim.P. - Notice of Alibi 6
Rule 12.2, N.D.R.Crim.P. - Notice of Defense Based on Mental Condition 8
Rule 13, N.D.R.Crim.P. - Trial Together of Indictments or Informations or Complaints
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Rule 14, N.D.R.Crim.P. - Relief from Prejudicial Joinder 11
Rule 15, N.D.R.Crim.P. - Depositions 12
Rule 16, N.D.R.Crim.P. - Discovery and Inspection 12
Rule 17, N.D.R.Crim.P. - Subpoena 13
Rule 17.1, N.D.R.Crim.P. - Omnibus Hearing and Pretrial Conference 14
Rule 18, N.D.R.Crim.P. - Place of Trial or Hearing 14
Rule 19, N.D.R.Crim.P. - Transfer Within District 15
Rule 20, N.D.R.Crim.P. - Transfer from the County for Plea and Sentence 16
Rule 21, N.D.R.Crim.P. - Transfer from the County or Municipality for Trial 17
Rule 22, N.D.R.Crim.P. - Time of Motion to Transfer 18
Rule 23, N.D.R.Crim.P. - Trial by Jury or by Court 18
Rule 23.1, N.D.R.Crim.P. - Jury Expenses 19
Rule 24, N.D.R.Crim.P. - Trial Jurors 19
Rule 24.1, N.D.R.Crim.P. - Demand for Change of Trial Judge 20
Rule 25, N.D.R.Crim.P. - Judge; Disability 20
Rule 26, N.D.R.Crim.P. - Evidence 21
Rule 26.1, N.D.R.Crim.P. - Foreign Law 22
Rule 27, N.D.R.Crim.P. - Proof of Official Record 22
Rule 28, N.D.R.Crim.P. - Expert Witnesses and Interpreters 22
Rule 29, N.D.R.Crim.P. - Motion for Judgment of Acquittal 23
Rule 29.1, N.D.R.Crim.P. - Closing Argument 24
Rule 30, N.D.R.Crim.P. - Jury Instructions 24
Rule 31, N.D.R.Crim.P. - Verdict 25
Rule 32, N.D.R.Crim.P. - Sentencing and Judgment 28
Rule 32.1, N.D.R.Crim.P. - Deferred Imposition of Sentence 29
Rule 33, N.D.R.Crim.P. - New Trial 29
Rule 34, N.D.R.Crim.P. - Arrest of Judgment 31
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Rule 35, N.D.R.Crim.P. - Correction or Reduction of a Sentence 31
Rule 36, N.D.R.Crim.P. - Clerical Mistakes 32
Rule 37, N.D.R.Crim.P. - Appeal as of Right to District Court; How Taken 32
Rule 38, N.D.R.Crim.P. - Stay of Execution and Relief Pending Review 33
Rule 41, N.D.R.Crim.P. - Search and Seizure 33
Rule 43, N.D.R.Crim.P. - Presence of the Defendant 34
Rule 44, N.D.R.Crim.P. - Right to and Appointment of Counsel 36
Rule 45, N.D.R.Crim.P. - Time 37
CALL TO ORDER
The meeting was called to order at 1:00 p.m., on January 27, 2005, by Judge Gail Hagerty, Acting Chair. The Chair, Justice Dale Sandstrom, was absent because of an out-of-town family emergency.
ATTENDANCE
Present:
Honorable Donovan Foughty
Honorable Gail Hagerty
Honorable Debbie Kleven
Honorable David W. Nelson
Honorable Allan L. Schmalenberger (Friday only)
Honorable Thomas J. Schneider
Honorable Mikal Simonson
Mr. Michael R. Hoffman
Mr. John C. Kapsner
Mr. Daniel S. Kuntz
Mr. Galen J. Mack
Mr. Ronald H. McLean
Ms. Sherry Mills Moore
Mr. Steven W. Plambeck
Ms. Cathy Howe Schmitz
Mr. Michael G. Sturdevant
Absent:
Justice Dale V. Sandstrom, Chair
Honorable Georgia Dawson
Honorable M. Richard Geiger
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Ms. Jeanne L. McLean
Staff:
Mike Hagburg
Kim Hoge
PRELIMINARY MATTERS
Judge Hagerty set out the schedule for the meeting and confirmed that the Committee's next meeting will be in Fargo on April 28-29, 2005. Judge Hagerty also welcomed a new Committee member, Judge Debbie Kleven of the Northeast Central Judicial District.
Ms. Schmitz MOVED to approve the minutes. Mr. Sturdevant seconded. The motion to approve the minutes CARRIED unanimously.
Staff explained the proposed amendments to the rule. Judge Simonson MOVED to approve the amendments. Ms. Schmitz seconded.
A member asked why language on lines 57-58 of the proposal (advising the court to avoid deferring rulings on pretrial motions if this would adversely affect an appeal) was needed. A member responded that, for example, if a court defers ruling on a motion to suppress until the jury is impaneled, the state would lose its chance to appeal. The member said that the language essentially said that a court should decided all pretrial motions before trial.
A member asked whether the language gave the state a right to appeal if the rule was not complied with. A member said the state could seek a supervisory writ in such a case.
A member asked about language on lines 30-31. The member said practice was to submit an early request for discovery and that the only type of "discovery motion" likely to be made would be a motion to compel discovery. The member said that it was not
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appropriate for Rule 12 to cover a motion to compel discovery because Rule 12 brings deadlines along with it.
Mr. Hoffman MOVED to delete lines 30-31. Mr. Sturdevant seconded.
A member agreed that discovery sought under Rule 16 is sought by request, not a motion, so deletion of the lines would be appropriate.
The motion CARRIED unanimously.
A member said that the commentary to the federal rule stated that the changes to Rule 12 were driven by a desire to have more deadlines pretrial and more involvement by the court in handling of the case. The member asked if this was necessary. A member responded that federal speedy trial requirements necessitate more deadlines. The member said that in North Dakota, case handling is not as deadline driven.
A member said that defendants have a greater right to discovery in state court. The member said that, in federal court, orders needed to be issued before defendants could get much discovery. The member said comparing federal and state court practice was like comparing apples and oranges. The member, though, said that the proposed revisions to Rule 12 reflected practice in the state courts.
A member said that some districts have standard pretrial scheduling orders and asked whether this was consistent practice across the state. Committee members responded that not all districts used pretrial scheduling orders. The member said that discovery requests did not fit into the standard order and were instead submitted when appropriate and convenient.
A member said that discovery requests and motions should be mentioned under Rule 12 as actions that "may" or "must" be completed before trial. The member said that perhaps it should be made mandatory that discovery motions or requests be made before trial because it would disrupt trial to allow discovery motions or requests to be made during trial.
A member responded that if the state fails to produce evidence in response to a discovery request, the defense should be able to argue, before or during trial, that the state be barred from using such evidence at trial. The member said there should be no deadlines on motions to compel discovery or motions for exclusion of evidence based on failure to provide discovery.
A member said that a good lawyer will generally file a Rule 16 discovery request as soon as possible, but that sometimes this does not happen. The member said the sometimes
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defense attorneys will not make Rule 16 requests until the eve of trial. The member said that, as the Rule 12 proposal now stands, reference to Rule 16 has been specifically removed. The member said that this may be interpreted as removing any requirement that Rule 16 requests be made before trial. The member said that having Rule 16 requests made during trial would not be acceptable.
A member said that returning the Rule 16 language to Rule 12 would create a de facto deadline for Rule 16 requests and for discovery motions. The member said that scheduling orders typically contain deadlines for Rule 16 requests, but in cases where there is no order there should be flexibility. Members said that scheduling orders of some kind are generally used across the state, although not always when there is a bench trial.
A member asked why language of the rule was changed to substitute the word "motion" for "request" when referring to Rule 14. Staff explained this was a reflection of the federal change. A member said that requests under Rule 14 were made to the court, so such requests are, by definition, motions. The member said this is different from requests under Rule 16, which are made to the prosecutor.
A member asked whether the Rule 16 language should be changed to specify that motions to compel be made before trial. A member responded that this would create a deadline for motions to compel. A member asked why it was unreasonable to have deadlines for discovery motions. A member said that discovery issues in criminal cases often keep coming up right until trial.
Mr. Mack MOVED to reinsert language at lines 30-31 referencing Rule 16 motions with the words "for discovery" omitted. Mr. McLean seconded.
A member noted that Rule 16 allowed several different types of motions. A member said that if Rule 16 motions were made subject to pretrial deadlines under Rule 12, this would give the defense a strong argument for seeking exclusion of late disclosed prosecution evidence since less harsh responses under Rule 16 would be foreclosed.
A member said that the rule itself did not impose any deadline for anything mentioned in the rule except "prior to trial." A member said the rule always required requests for discovery to be made before trial. A member responded that scheduling orders impose deadlines and the items named in Rule 12 are the items that are included in scheduling orders.
The motion CARRIED 8-6.
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Mr. Kapsner MOVED to eliminate lines 13-15 and renumber. Judge Simonson seconded.
A member said it made no sense to have the language at lines 13-15 in the rule because it was meaningless. The member said the language did not add anything to what a party could do or not do. Staff confirmed that the language was in the federal rule.
The motion was DEFEATED 2-11.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously.
RULE 12.1, N.D.R.Crim.P. - NOTICE OF ALIBI (PAGES 57-65 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Ms. Schmitz MOVED to approve the amendments. Ms. Moore seconded.
A member said that the existing rule and the proposal were acceptable. The member said there would be some advantages to adopting the federal requirement that the prosecution request a notice of alibi, since this imposes a duty on the state to specifically state the time and place of the alleged crime. The member said, however, that a defendant could get this information under the North Dakota procedure by filing a motion for bill of particulars and then decide whether to give a notice of alibi.
A member said that the proposed version seemed to impose a new requirement on the prosecution of disclosing rebuttal witnesses to a defendant's alibi. A member said this would not be fair to the prosecution because it may not know the name of necessary rebuttal witness until the defendant has testified.
A member said the rule did not seem fair to the defendant because the sanction for failure to comply with the notice requirement was exclusion of the alibi defense.
Judge Simonson MOVED to delete line 21 of the proposed rule regarding disclosure of rebuttal witnesses. Judge Foughty seconded.
A member asked what steps prosecutors take when provided with the defendant's notice of alibi and witness list. The member said that if a defendant gave the required notice and list, the prosecution should be able to produce a list of rebuttal witnesses. A member
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responded that it was not so simple because the circumstances of alibis vary--if the prosecution needed to rebut an alibi that relied on the defendant being in a distant location, it could take the prosecution awhile to locate witnesses to establish the defendant's location.
A member said it would not be a problem for the state to provide a list of known rebuttal witnesses. The member said the problem was that the language of the proposal could bar the state from calling later discovered rebuttal witnesses.
A member said that the language of the rule previously required the state to disclose the names of all its witnesses. A member responded that this language had been interpreted as applying only to witnesses used in the case in chief.
A member said that, as a practical matter, the state would likely just regurgitate all the witnesses listed in the information in its disclosure of rebuttal witnesses. The member said that the identity of any other possible rebuttal witness likely would not be considered until the defendant testified specifically about an alibi. A member agreed that the state may not know who it needs for rebuttal until after hearing the defendant's testimony.
A member said that alibi is not a defense listed in the Century Code. The member said, therefore, that the rule could just be deleted and neither the defendant or the state required to give any notice of alibi. The member said that the rule had no law behind it.
A member said the rule derived from policy--if a defendant is going to claim absence from the crime scene, this needs to be disclosed so it can be investigated.
The motion to delete line 21 was DEFEATED 5-9.
A member said that the rules requirement that a telephone number be required for witnesses was impractical.
Judge Simonson MOVED to insert the phrase "if any" on lines 11, 18, and 31. Mr. Kapsner seconded. The motion CARRIED 12-1.
A member commented that the term "prosecuting attorney" should be replaced by "prosecution" throughout the criminal rules for the sake of simplicity.
A member asked what options a trial judge has if the notice requirement is not met. A member said a judge could declare a mistrial or give a continuance.
The main motion to approve the amendments and add the rule to the Criminal Rules
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Package CARRIED unanimously.
Staff explained the proposed amendments to the rule. Ms. Schmitz MOVED to approve the amendments. Ms. Moore seconded.
A member pointed out that the word "expert" had been added to the rule. The member said whether someone was an expert was a factual issue, and it was not a term that should be used in a rule.
A member asked what term was used in the mental health statute. Staff indicated that "psychiatrist or licensed psychologist" was used to indicate who could perform a mental examination.
A member commented that the rule would not make someone an expert; instead, a court would have to find that whoever was testifying was an expert before the court could allow the testimony.
A member said it was a problem in using the word "expert" in a proceeding when there was a question as to qualifications of the person testifying. A member responded that the court could make a threshold decision whether someone was qualified to provide expert testimony.
Mr. Kuntz MOVED to strike the words "by the expert" from line 33 of the proposal. Mr. Plambeck seconded.
A member said there were other uses of the word in "expert" in the rule where it could also be deleted. A member asked whether the change would make it possible for anyone who reads an examination statement to testify as to its content.
A member said the intent of the rule was to prevent a defendant's statement, made during the course of a mental examination, from being used for anything other than showing the defendant's mental condition. The member said the proposed amendment would prevent anyone from providing testimony based on a defendant's examination statement, except to show the defendant's mental condition.
A member said that in a recent case, a psychiatrist who had examined a defendant
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accused of a murder had testified about what the defendant said about the crime. This allowed the psychiatrist to tell the defendant's side of the story while at the same time allowing the defendant to remain silent.
The motion CARRIED 10-3.
A member asked why testimony regarding a defendant's statement during a mental examination should be admissible for any reason. A member said that a defense attorney could move to exclude any testimony offered.
Mr. Sturdevant MOVED to delete proposed new language on lines 35-36 allowing testimony on a defendant's mental condition. Mr. Hoffman seconded.
A member said a typical scenario would involve a defendant giving notice of intent to make a defense based on mental condition and the prosecution would follow up by asking for a mental examination of the defendant. The member said that the extent of testimony and the introduction of evidence based on the examination would typically be discussed at the pretrial hearing. The member said the proposed rule simply allowed the parties to question the examiner about the examination.
A member said the rule also provides that, if a defendant does not put on witnesses to testify about the defendant's mental condition, the prosecution cannot ask questions about what went on during the defendant's mental examination. The member said this seemed to make sense--if a defendant decides mental condition will not work as a defense, the prosecution cannot introduce statements uncovered during a mental condition examination.
The motion to delete language on lines 35-36 was DEFEATED 4-9.
Mr. Kapsner MOVED to delete the word "expert" on lines 16 and 17. Judge Kleven seconded. The motion CARRIED 12-1.
Mr. Hoffman MOVED to add language at the end of line 41: "This rule does not limit the defendant's right to testify." Ms. Schmitz seconded.
Members said there was nothing in the rule's language that precluded a defendant from testifying. A member replied that new language in the rule might be construed to limit the defendant's right to testify about mental condition.
A member said the spirit of the rule was that the defendant would inform the court and the prosecution ahead of time about a mental condition defense and that adding the proposed
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language could allow the defendant to subvert this requirement. A member said that a defendant might be able to escape having a mental examination if the language was added, since the only effective sanction is if the defendant refused a mental examination would be precluding the defendant from raising a mental condition defense.
A member said defendants have constitutional rights to testify and say anything they want. The member said there should be no limits on what a defendant has to say in the defendant's own defense. Another member said it was possible that a defendant could want to offer testimony about mental condition without raising a defense wholly based on mental defect and that such testimony should not be precluded.
The motion to add language to line 41 was DEFEATED 5-8.
Mr. Kapsner MOVED to delete the word "expert" from line 40. Mr. Plambeck seconded.
A member testified that the use of "expert" in the context of line 40 referred to "expert evidence" rather than a person designated as an expert. A member suggested that removal of the word "expert" from other provisions of the rule should be reconsidered.
The motion was DEFEATED for lack of a majority on a 7-7 vote.
A member said that the Committee needed to look at N.D.C.C. Ch. 12.1-04.1 before it considered any other amendments to the proposal. The member said that in order to meet the standard for establishing lack of criminal responsibility set out in the code, expert testimony would be necessary.
Mr. Kuntz MOVED to return the term "expert" to the proposal at lines 16-17. Mr. McLean seconded.
A member said the problem with using the word expert was that the Rules of Evidence apply to mental condition proceedings and those rules set out standards for someone being designated an expert. The member said a rule cannot decree someone testifying in a particular capacity as an expert.
A member said subdivision (a) requires the defendant to give notice of relying on a lack of criminal responsibility defense and subdivision (b) requires additional notice if expert testimony is going to be used to support the defense. The member said these were two different types of notice, and that the expert designation was needed in the second.
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A member said that if "expert" was restored to lines 16-17, it needed to be restored to line 33 also. A member responded that might be people who were not experts who got access to a defendant's statement as fruit of an expert examination. The member said that the language on line 33 limited all testimony on a defendant's statement, whether expert or non-expert.
The motion to restore the term "expert" on lines 16-17 CARRIED 11-3.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED 12-2.
Staff explained the proposed amendments to the rule. Mr. Kuntz MOVED to approve the amendments. Mr. McLean seconded.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously, without discussion.
RULE 14, N.D.R.Crim.P. - RELIEF FROM PREJUDICIAL JOINDER (PAGES 80-84 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Ms. Moore MOVED to approve the amendments. Mr. McLean seconded.
A member pointed out a typographical error in the proposal. Without objection, the Committee agreed it should be corrected.
A member said it seemed that separate trials of counts and severing the defendants' trials were the same thing. A member replied that there might be multiple defendants named in the information who might have separate interests (or want to testify against each other) and the trials might have to be severed.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously.
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RULE 15, N.D.R.Crim.P. - DEPOSITIONS (PAGES 85-105 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Mr. McLean MOVED to approve the amendments. Mr. Kapsner seconded.
A member said that the North Dakota rule was superior to the federal rule and should be retained. A member said depositions were not customary in federal cases but were done on a regular basis in North Dakota because of Rule 15. The member said the form and style changes proposed were fine and should be approved.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously.
RULE 16, N.D.R.Crim.P. - DISCOVERY AND INSPECTION (PAGES 106-130 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Judge Kleven MOVED to approve the amendments. Mr. Sturdevant seconded.
A member said the Supreme Court had never authorized reciprocal discovery between prosecution and defendant.
A member pointed out some clerical errors in the lettering of paragraphs in the proposal. Without objection, the Committee ordered correction of the errors.
Mr. Hoffman MOVED to return lines 115-125 of the proposal to paragraph format. Ms. Schmitz seconded. The motion CARRIED 10-1.
A member asked whether there were any other kinds of witnesses aside from prosecution or defense witnesses. The member asked why the rule could not just say "witness" rather than specifying that the witness was for the prosecution or the defense.
Ms. Schmitz MOVED to remove language referring to "prosecution or defense" witnesses on lines 123-124. Judge Nelson seconded.
A member commented that inclusion of "prosecution or defense" clarified the rule's requirements even if it could be considered redundant. The member said the language clarified that the obligation imposed by the rule applied to both sides.
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The motion was DEFEATED on a 1-9 vote.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously.
RULE 17, N.D.R.Crim.P. - SUBPOENA (PAGES 131-143 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Judge Kleven MOVED to approve the amendments. Judge Simonson seconded.
A member said that subdivision (h) on lines 94-97 seemed superfluous because Rule 16 covered production of statements. A member responded that the subdivision was a safeguard against persons trying to skirt Rule 16 by issuing subpoenas for statements.
A member said that the language came from the federal rule. The member said the federal rules make it difficult to obtain witness statements without a court order.
A member said there was no good reason a person should not be required to supply their own statement in response to a subpoena. A member said that under North Dakota practice, you get witness statements by making requests for discovery.
Staff pointed out that the subdivision was adopted in 1983 after the original adoption of the rule.
A member said that the subdivision may have been adopted because of complaints by medical facilities about subpoenas for medical records. A member responded that medical records cannot be obtained by subpoena, only by court order or state's attorney's inquiry.
Mr. Kapsner MOVED to delete lines 94-97. Ms. Schmitz seconded.
A member said that one reason for the subdivision was a desire to keep production of statements channeled through Rule 16. A member said that Rule 16 would not work for obtaining statements not in possession of the prosecution.
A member said that the subdivision provided added protection to people who have an obligation to keep information confidential, such as medical facilities and addiction counselors.
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A member said subpoena power could be used to harass officials if the subdivision were deleted. The member said keeping Rule 16 was the mechanism for production of statements was appropriate.
The motion was DEFEATED 1-12.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously.
Staff explained the proposed amendments to the rule. Mr. McLean MOVED to approve the amendments. Mr. Mack seconded.
A member asked for explanation on the purpose of an omnibus hearing and why they were necessary. A member responded that an omnibus hearing is an expanded pretrial conference.
A member said an omnibus hearing offers the court a chance to make sure the parties are cooperating in discovery and that trial preparation is on schedule.
Staff said that the omnibus hearing was an innovation used by federal district courts in North Dakota in the early 1970s and that the concept apparently appealed to some members of North Dakota's original criminal rules committee.
A member said that being able to have omnibus hearings has caused no harm and has been helpful in some cases. Another member (who had been involved in an omnibus hearing) agreed that they were a useful tool for case management.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously.
RULE 18, N.D.R.Crim.P. - PLACE OF TRIAL OR HEARING (PAGES 151-154 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Mr. Kuntz MOVED to approve the amendments. Ms. Schmitz seconded.
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A member suggested that the first phrase of the rule be moved. The member said that starting the rule with the word "unless" was awkward.
Staff explained that the proposal followed the language of the federal rule.
Ms. Schmitz MOVED to rearrange the first sentence of the proposal to move the "unless" clause. Mr. Sturdevant seconded. The motion CARRIED 10-3.
Mr. Kapsner MOVED to replace the term "place" in the title of the proposal with the term "location." Judge Foughty seconded. The motion CARRIED 13-0.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously.
RULE 19, N.D.R.Crim.P. - TRANSFER WITHIN DISTRICT (PAGES 155-158 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Ms. Schmitz MOVED to approve the amendments. Ms. Moore seconded.
A member asked why the defendant had to request the prosecutor to allow a transfer. A member responded that it never seemed to create any problems. A member said, as a practical matter, the rule allowed a prosecutor and defendant who reached a plea agreement to grab whichever judge was available to take the plea.
A member said that it still did not seem appropriate that the defendant had to ask the prosecuting attorney for the transfer and that the prosecutor was allowed to select the judge.
Mr. Kapsner MOVED to delete all language on line 7 after the comma and to replace "to" with "may" on line 8. Mr. Sturdevant seconded.
Without objection, the motion was substituted to delete the words "request the prosecuting attorney to select" on lines 7-8 and delete "the defendant" on line 7 and replace with "the parties may select."
A member asked whether a different judge would have to take the guilty plea when requested. A member said that the selected judge would not be required to take the plea, especially if there was evidence of judge shopping.
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Without objection, the word "select" was replaced with "request" in the pending motion.
A member said the rule appeared to predate county/district court unification, since it only was applicable to felonies. The member said the Committee might want to consider extending it to misdemeanors because it would be useful for these offenses.
The motion to revise lines 7-8 CARRIED 13-0.
Judge Simonson MOVED to delete language beginning at the comma on line 4 and ending after the comma on line 5. Mr. Kapsner seconded.
A member said that, in a rural county, the same indigent defense counsel is likely to represent multiple defendants arraigned before different judges. Changing the rule to allow the multiple defendants to plead before whatever judge is available would serve judicial economy. The proposed change would allow a defendant who is ready to plead to go before the available judge and resolve the matter.
The motion to revise lines 4-5 CARRIED 13-0.
A member wondered whether it was necessary to retain lines 10-14.
Mr. Kuntz MOVED to delete lines 10-14 and renumber accordingly. Judge Foughty seconded.
A member said that the deleted language had been adapted from a statute. The member asked whether, if the language was deleted, the statute would again govern. Staff informed the Committee that the statute had been superseded and the old statutory language removed from the statute book.
The motion to delete lines 10-14 CARRIED 13-0.
Mr. Hoffman MOVED to remove the old title language from the first subdivision on line 4. Mr. Kapsner seconded. Motion CARRIED 13-0.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously.
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RULE 20, N.D.R.Crim.P. - TRANSFER FROM THE COUNTY FOR PLEA AND SENTENCE (PAGES 159-166 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Ms. Schmitz MOVED to approve the amendments. Mr. Sturdevant seconded.
A member said that Rule 20 is a useful rule and that it would be even more useful if it applied to probation revocation proceedings. A member replied that the rules required defendants in probation revocation proceedings to go back before the sentencing judge. The member said there may be an objection from the sentencing judge to having another do the revocation proceeding, especially in a felony case.
A member asked about the use of the term "transferee county." Staff explained the term "transferee" was used in the federal rule.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously.
Staff explained the proposed amendments to the rule. Judge Kleven MOVED to approve the amendments. Ms. Schmitz seconded.
A member asked whether there was a situation where a case would be transferred between two municipalities in the same county. The member said transfers generally are to take the case out of the county. A member commented that most counties have only one municipality.
Judge Simonson MOVED to remove the term "municipality" from the rule. Judge Kleven seconded.
A member said the object of the first paragraph was concern for prejudice against a defendant. The member said that there are counties that have more than one municipality so there is a reason why a defendant might want to change municipalities.
The motion CARRIED 9-1.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously.
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RULE 22, N.D.R.Crim.P. - TIME OF MOTION TO TRANSFER (PAGES 173-176 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Mr. Kapsner MOVED to approve the amendments. Ms. Moore seconded.
A member asked whether the rule could be made shorter. A member suggested that the rule's content should be moved to Rule 12 since a transfer would be made as part of pretrial activity.
Mr. Kapsner MOVED to eliminate lines 9-19 of the explanatory note because they add nothing to the rule. Judge Kleven seconded. Motion CARRIED 11-1.
A member asked how Rules 21 and 22 dovetailed with a motion to change venue. The member said that once the defense requested a change of venue, the change of venue statute would control. The member asked whether a party who missed the deadline on change of venue could use Rule 21 and 22 to get a change anyway.
A member said that a party might want to make a motion for change of venue or transfer as late as the time of jury selection (or the judge may delay ruling on such a motion until then). A member asked whether it was necessary to have the statute and the rules. Without objection, staff was instructed to research the interplay between Rules 21 and 22 and the change of venue statute and to report to the Committee at the next meeting.
A member asked why Rule 22 was necessary since it essentially said a transfer motion could be made at any time.
Mr. Plambeck MOVED to delete Rule 22 in its entirety. Mr. Sturdevant seconded. Motion CARRIED unanimously.
RULE 23, N.D.R.Crim.P. - TRIAL BY JURY OR BY COURT (PAGES 177-181 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Judge Foughty MOVED to approve the amendments. Ms. Schmitz seconded.
A member asked why the title term was being changed to non-jury trial.
Mr. Kapsner MOVED to return the name of the rule to "Trial by Jury or by Court" and
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to amend line 23's title to say "Court Trial." Mr. McLean seconded. The motion CARRIED 8-4.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously.
RULE 23.1, N.D.R.Crim.P. - JURY EXPENSES (PAGES 182-183 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Judge Kleven MOVED to approve the amendments. Ms. Schmitz seconded.
A member asked whether costs could be assessed in a criminal case for any purpose. Members suggested that costs had been replaced by fees.
Judge Simonson MOVED to delete the words "as costs" in line 4. Ms. Moore seconded.
A member asked whether expenses should be assessed if a defendant fails to appear when a jury has been called. A member responded that this has happened.
The motion CARRIED 12-0.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously.
RULE 24, N.D.R.Crim.P. - TRIAL JURORS (PAGES 184-193 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Ms. Schmitz MOVED to approve the amendments. Judge Kleven seconded.
A member commented that, in accordance with the rule, the numbers of jurors called in is the amount of jurors needed for a jury plus the number of peremptory challenges. The member said that this is too few to choose from and does not provide enough variety of people. The member said in Burleigh County, it is rare to get any blue collar people or small town people as prospective jurors.
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A member said the court administrator's office consistently discouraged judges from calling in any more than the bare minimum of prospective jurors because of a desire to save money and to prevent inconveniencing people called in.
A member said that this rule was not the place to change the number of jurors called in. The member said the administrative policies would have to be changed. A member responded that this rule governed criminal juror procedure and should override administrative procedures. The member said this battle had been fought in different places and it might be useful to try a change in the rule.
A member said judges had the power to call in more prospective jurors. The member said that in the smaller counties, it was very difficult to get enough prospective jurors to meet even minimum requirements.
A member said that being able to have a jury trial is an important right and it is unwise penny pinching to skimp on the number of prospective jurors called in. A member responded that it was not only a matter of money--people's lives are disrupted if called in to jury duty unnecessarily.
A member said it was more of an inconvenience if not enough jurors are called and the sheriff has to go out and grab people at random for jury duty.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED 9-1.
RULE 24.1, N.D.R.Crim.P. - DEMAND FOR CHANGE OF TRIAL JUDGE (PAGES 194-195 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Judge Foughty MOVED to approve the amendments. Ms. Schmitz seconded.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously.
RULE 25, N.D.R.Crim.P. - JUDGEDISABILITY (PAGES 196-200 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Ms. Schmitz MOVED to
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approve the amendments. Judge Kleven seconded.
Without objection, a comma was added to line 18 of the proposal.
A member asked why a judge had to certify familiarity with the record to take over a case during trial but did not have to make a similar certification to sentence a defendant.
A member said that it does not matter if the judge is familiar with the record once a jury delivers a verdict of guilty. The member said people were also sentenced without trials based on the recommendation of counsel. The member said sentencing is a different function than overseeing a trial.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously.
The meeting recessed at approximately 4:30 p.m., on January 27, 2005.
January 28, 2005 - Friday
The meeting was called to order at approximately 8:30 a.m., by Judge Gail Hagerty, Acting Chair.
RULE 26, N.D.R.Crim.P. - EVIDENCE (PAGES 201-204 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Judge Foughty MOVED to approve the amendments. Judge Kleven seconded.
Mr. Plambeck MOVED to delete the second sentence of the proposal at lines 5-7. Mr. McLean seconded.
A member commented that admissible evidence is not always admitted, so the proposed deletion was necessary.
The motion CARRIED 11-0.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously.
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RULE 26.1, N.D.R.Crim.P. - FOREIGN LAW (PAGES 205-209 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Judge Simonson MOVED to approve the amendments. Judge Kleven seconded.
A member asked what "foreign law" in the title of the rule referred to. The member asked why the rule was needed. A member responded that the rule referred to the law of jurisdictions foreign to North Dakota and would be used when there was a dispute related to the foreign law.
A member said that the provision had been used in criminal proceedings related to child support where the order was from another state. A member asked whether it was necessary to have a rule telling the court what it needs to consider in a matter where foreign law was involved. A member responded that the rule also served parties by requiring notice when one party intends to rely on foreign law.
A member said that there were enhanced penalties for habitual criminals and when the enhanced penalty was based on foreign law, the rule could be used. A member also said that out of state residents might want to assert a privilege under foreign law.
A member asked whether there were any cases in the annotated rules involving Rule 26.1. Staff informed the member that the only cross reference in the annotations was to N.D.R.Civ.P. 44.1 (Determination of Foreign Law).
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously.
RULE 27, N.D.R.Crim.P. - PROOF OF OFFICIAL RECORD (PAGES 210-213 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Ms. Schmitz MOVED to approve the amendments. Mr. McLean seconded.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously.
RULE 28, N.D.R.Crim.P. - EXPERT WITNESSES AND INTERPRETERS (PAGES 214-218 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Mr. Kapsner MOVED to approve the amendments. Mr. McLean seconded.
A member asked why it had taken so long for the Committee to consider the proposed deletion of the expert witness language.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously.
RULE 29, N.D.R.Crim.P. - MOTION FOR JUDGMENT OF ACQUITTAL (PAGES 219-225 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Ms. Schmitz MOVED to approve the amendments. Mr. McLean seconded.
A member asked whether the proposed addition to the rule on reserving decision was used much in the federal courts. A member said Judge Conmy had used it on a couple of occasions. A member asked whether it would be used in cases where the judge disagreed with the jury. A member responded that it was possible.
A member said it was standard in civil cases for a judge to hold back on a decision to enter judgment and was surprised that it was not also allowed in criminal cases.
A member commented that it would not hurt to have the ability to reserve decision. The member said that things happened so fast once a case went to trial that, if a judge cannot reserve decision, the tendency is to simply deny the motion. Being able to reserve judgment allows a judge the time to think about the motion without delaying the trial.
A member said it was unrealistic, as required on lines 17-18, for a judge who reserves decision to decide the motion based on evidence existing at the time the motion was made and forget everything that happened after the motion was made, including possibly the jury verdict.
A member said the proposal would give the judge a chance to let the jury take a shot at making the decision rather than deciding up front to grant an acquittal. The member said that if a judge believes there should be an acquittal, that decision should be made before the case goes to the jury. A member said that when the jury says "we find the defendant guilty"
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that should end the trial court's part of the case.
A member said that Rule 29 motions were rarely granted and that it was unlikely that more would be granted if the proposal was adopted and judges were given the ability to enter judgment of acquittal after a jury verdict. A member said one result would be courts receiving more written motions for acquittal after the jury came back with a verdict.
A member said the proposal would give trial judges more time to think about whether judgment of acquittal should be granted rather than rejecting motions. The member commented that another train stop on the road to prison is not a bad thing.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED 11-2.
RULE 29.1, N.D.R.Crim.P. - CLOSING ARGUMENT (PAGES 226-229 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Mr. McLean MOVED to approve the amendments. Judge Schmalenberger seconded.
A member asked why the Committee had not adopted the rule previously. Staff explained that they decided to defer to statute for closing argument procedure. A member commented that, by adopting the rule, the courts would be taking charge of their own procedure.
A member noted that the rule allowed the prosecution to have the last word; the member said this was standard, but it was also something that defendants consistently do not understand and find objectionable. A member replied that the prosecution has the burden of proof so they get the last word.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously.
RULE 30, N.D.R.Crim.P. - JURY INSTRUCTIONS (PAGES 230-239 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Judge Kleven MOVED to approve the amendments. Judge Foughty seconded.
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Judge Simonson MOVED to delete lines 45-45 referencing N.D.R.Ct. 6.8 because the rule only applies to civil cases. Judge Schmalenberger seconded. The motion CARRIED 13-0.
A member commented that the requirement on lines 19-20 was unreasonable in a criminal case because submission of certain instructions is contingent on whether the defendant testifies, a decision that may not be made until late in the case. The member said lines 19-20 potentially could work to prohibit a defense attorney from requesting certain instructions. The member said the federal rule did not have a similar restriction.
Mr. Hoffman MOVED to delete lines 19-20. Mr. Sturdevant seconded.
A member said deleting the lines would create more trouble for defense attorneys because it gave flexibility, allowing late filing of instructions.
The motion was DEFEATED 3-11.
A member asked about the new language on lines 71-78. Staff explained that the Committee had recently approved identical language for N.D.R.Civ.P. 51. A member commented that the language was consistent with case law.
A member said that the requirement to preserve a jury instruction objection seemed new. A member replied that the Supreme Court has always required preservation of objections. Staff explained that the Committee, in considering the civil jury instruction rule, had decided not to adopt certain language requiring multiple objections and that the language in the proposal reflected the choices the Committee made in amending the civil rule.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously.
RULE 31, N.D.R.Crim.P. - VERDICT (PAGES 240-247 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Mr. Kuntz MOVED to approve the amendments. Judge Kleven seconded.
A member said that addition of new language about attempt was a substantive change.
Judge Kleven MOVED to strike subdivision (c) at lines 16-22. Mr. Kapsner seconded.
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A member asked whether, if the language was removed, lesser included offenses would be automatically included in a charge. A member said that lesser included offenses generally came into play when jury instructions were requested. Staff explained that the case law indicated that lesser offenses were automatically included in greater offenses and they did not need to be separately charged.
A member said that in practice, defendants sometimes ask the jury to address only the offenses charged in the information and that, if subdivision (c) was deleted as proposed, it might not be possible for prosecutors to argue successfully that lesser included offenses automatically should go to the jury.
A member said that just taking attempt out of the subdivision would be preferable to deleting it.
The motion was DEFEATED 0-14.
Mr. Kapsner MOVED to amend lines 16-18 to delete reference to attempt and to delete lines 19-22. Ms. Schmitz seconded.
A member said that the language in the proposal essentially said that attempts would be treated similar to lesser included offenses while clarifying that attempts had to qualify as separate offenses to get such treatment.
A member said attempt was a separate offense and that instructions had to be made on the elements of attempt. A member responded that any lesser included offense would also be a separate offense stated in the code. A member said the difference was that the criminal complaint would charge a defendant with attempt while a lesser included offense would not need to be charged separately.
A member said if the proposed change was made and a prosecutor wanted to charge attempt, the attempt would have to be charged out separately and could not be treated in the same way as a lesser included offense. A member said leaving the attempt language in the proposal would do no harm and that removing it may create an ambiguity.
A member said that it's not uncommon for a prosecutor to charge a defendant with a crime and then to ask for jury instructions on the crime and attempt at the close of the case. The member said this was unfair and created notice issues. The member said that because attempt was a separate offense in the code it was different that a lesser included offense.
A member explained that attempt as defined by the code involved acting with the
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culpability needed for a crime and taking a substantial step toward committing the crime. The member said the elements of the crime did not need to be proved in such a case--just the elements of the separate offense of attempt. The member said because proving the elements of the crime was not necessary, attempt was different than a lesser included offense.
A member said that if attempt were to be included in the rule, the Committee would also have to look at including other separate offenses that could apply in any case, such as conspiracy.
A member asked whether the members of the Committee were confident that attempt always needed to be charged as a separate offense and could not be treated at the jury instruction stage like a lesser included offense. A member said if the attempt language were removed there would be ambiguity about attempt ever being addressed by the jury if not it was not charged out as a separate offense.
A member said that, if the motion is passed, there should be a notation in the explanatory note indicating that reference to attempt was removed because attempt is a separate offense and not a lesser included offense.
A member said that there was no reason for attempt to be referenced in the rule when it was a crime in its own right. A member said attempt needed to be charged out as a separate offense so that the defendant would have notice, and that removing reference to attempt from the rule would facilitate this.
The motion to change the language on lines 16-22 to eliminate reference to attempt CARRIED 12-3.
A member said that lines 40-43 contained an improper statement of law. The member said it was the prosecution's burden to disprove any defense, except for affirmative defenses. A member said the old language of the rule left defenses to be considered on a case-by-case basis.
Mr. Hoffman MOVED to revert to the old language on lines 40-43. Judge Simonson seconded.
A member asked whether deletion of the term "defendant" from lines 40-43 would be more useful, as the paragraph would then encompass affirmative defenses.
Mr. Kapsner MOVED a substitute motion to delete the entire paragraph at lines 40-43. Ms. Schmitz seconded.
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A member said that it is possible that it might be useful to have the possibility of asking for a special verdict in a criminal case so deletion of the entire paragraph would not be helpful.
Motion to substitute was DEFEATED 0-15.
Judge Schmalenberger MOVED to substitute a motion that would eliminate the term "defendant" from the paragraph. Mr. Kuntz seconded.
A member suggested the motion would not be useful because no one other than the defendant would raise a defense. A member responded that a judge has an obligation, if the evidence shows there is a defense, to instruct the jury on it. A member said that case law says that the jury must look at all the evidence, and that a defense therefore can come from evidence put in by the state.
Without objection, the language of the first line of the proposed substitute was changed to read "If any other defense."
A member said that it should not be the court's responsibility to find defenses for the defendant and the language of the paragraph should indicate that a defendant must raise the defense.
The motion to substitute CARRIED 10-5.
The motion as substituted CARRIED 12-3.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED 14-1.
RULE 32, N.D.R.Crim.P. - SENTENCING AND JUDGMENT (PAGES 248-263 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Mr. Mack MOVED to approve the amendments. Judge Foughty seconded.
A member said that it would be useful for staff to work on adding a requirement to the rule that would allow the use of transfers under N.D.R.Crim.P. 20 in probation revocation proceedings.
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A member asked whether the use of "unnecessary" on line 6 of the proposal was more limiting that the use of "unreasonable" which is the term used in the existing rule.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED 14-1.
RULE 32.1, N.D.R.Crim.P. - DEFERRED IMPOSITION OF SENTENCE (PAGES 264-266 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Judge Kleven MOVED to approve the amendments. Mr. Kapsner seconded.
A member reminded the Committee that the rule had been discussed at length in the past because of the 61-day file sealing deadline. It had been suggested that this was not always long enough for prosecutors to check for problems.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously.
RULE 33, N.D.R.Crim.P. - NEW TRIAL (PAGES 267-272 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Judge Foughty MOVED to approve the amendments. Ms. Moore seconded.
A member asked whether the material at lines 16-18 was new. Staff explained that it was taken from the federal rule.
Mr. Kapsner MOVED to delete lines 16-18 and to restore lines 27-28. Judge Kleven seconded.
A member asked why the period to make a motion for a new trial based on grounds other than newly discovered evidence was only seven days. A member observed that the appeal deadline in criminal cases had been 10 days until 2003, when the appellate rules were amended.
The motion to delete lines 16-18 and restore lines 27-28 CARRIED 14-0.
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A member asked the reason for the 30 days after discovery requirement for new trial motions based on newly discovered evidence.
Mr. McLean MOVED to amend lines 11-13 by deleting language requiring new trial motions based on newly discovered evidence to be made within 30 days after the discovery of the evidence. Mr. Hoffman seconded.
A member commented that the reason for the 30 day requirement was to ensure that the newly discovered evidence did not become stale. The member admitted that a jailed defendant had reason to act quickly on newly discovered evidence, but said that in some circumstances the defense has a rationale to let evidence go stale so it cannot be investigated by the prosecution. The member said if there is newly discovered evidence, it should be put on the table as soon as possible.
A member said that one piece of newly discovered evidence may lead to more evidence and that requiring a motion within 30 days of discovery of the first evidence could place too much of a burden on the defense. The member said the defense should be allowed to put its evidence in order.
A member said the 30 day requirement was not a barrier to consideration of newly discovered evidence because such evidence could be considered in the context of post conviction relief proceedings.
A member said that if the change is made, language should be added to the explanatory note providing the rationale for the change. A member replied that the Committee had been working for the last 10-15 years to cut down on material in explanatory notes because it can become outdated and distract from the actual language of the rule. A member said someone looking for an explanation could look in the minutes.
The motion to eliminate the 30-day requirement CARRIED 8-6.
A member said the first motion deleting language should be revisited because the deletion detracted from the organization of the rule.
Mr. Sturdevant MOVED to reinstate lines 16-18 and to strike lines 27-28. Ms. Moore seconded.
A member said this would cause repetitive language in the rule. A member responded that subdivision (b) of the rule dealt with timing and subdivision (c) dealt with support for motion and that the repetition of language was only in the paragraph titles.
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The motion CARRIED 10-4.
Mr. Kapsner MOVED to delete lines 16-21. Judge Foughty seconded.
A member said that the rationale behind the motion was to eliminate the extra language inserted from the federal rule and go back to where the rule stood previously. Without objection, Mr. Kapsner's motion was tabled and staff was instructed to redraft the proposal to eliminate the disputed excess language drawn from the federal rule and to bring the rule back for further consideration at the next meeting.
A member said that staff's redrafting work should include a reworking of the 7-day deadline for new trial motions. Members said the 7-day deadline seemed short. A member said that the rule allowed a longer deadline when the court allows. The Committee consensus was that 10 days would be a better period.
RULE 34, N.D.R.Crim.P. - ARREST OF JUDGMENT (PAGES 273-277 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Judge Foughty MOVED to approve the amendments. Mr. Sturdevant seconded.
A member pointed out that, as in the case of Rule 33, the short seven day deadline was also part of this rule. Without objection, staff was instructed to conform the deadline with the new deadline adopted for Rule 33.
A member said the new language in line 9 was unnecessary. The member said that a court did not need to "accept" a verdict or finding of guilty.
Judge Simonson MOVED to delete "the court accepts" from line 9. Mr. Kapsner seconded. The motion CARRIED unanimously.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously.
Staff explained the proposed amendments to the rule. Mr. Kapsner MOVED to
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approve the amendments. Ms. Moore seconded.
Mr. Kapsner MOVED to change the seven day deadline in line 9 to conform to the deadline in Rules 33-34. Judge Schmalenberger seconded.
A member asked whether it was appropriate to put any deadline on correction of clear error.
Mr. Kapsner MOVED a substitute motion to delete completely the deadline language in line 9. Mr. Mack seconded. Motion to substitute CARRIED unanimously.
The substituted motion CARRIED unanimously.
Mr. Kapsner MOVED to add language to line 9 "after giving any notice it considers appropriate." Judge Simonson seconded.
A member said giving notice is appropriate if the court is considering correcting a sentence because of clear error.
The motion CARRIED 13-0.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously.
RULE 36, N.D.R.Crim.P. - CLERICAL MISTAKES (PAGES 286-289 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Judge Schmalenberger MOVED to approve the amendments. Mr. Mack seconded.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously.
Staff explained the proposed amendments to the rule. Mr. Mack MOVED to approve the amendments. Judge Foughty seconded.
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The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously.
Staff explained the proposed amendments to the rule. Judge Kleven MOVED to approve the amendments. Mr. Sturdevant seconded.
Mr. Kapsner MOVED to delete lines 4-6 referring to stay of death sentence. Judge Simonson seconded.
A member said if the effect of the proposed deletion would be that a court could not stay a death sentence if the legislature brought back the death penalty. A member responded that the rule could be amended again if that happened.
The motion CARRIED 10-5.
A member said that the proposal's use of the term "costs" was outdated as these had generally been replaced by fees in criminal cases.
Judge Fought MOVED to add the term "fee" to lines 11, 14 and 15 so that the proposal would read "fine, fee or costs" in those locations. Judge Schmalenberger seconded.
The motion CARRIED 15-0.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously.
RULE 41, N.D.R.Crim.P. - SEARCH AND SEIZURE (PAGES 305-329 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Mr. McLean MOVED to approve the amendments. Judge Foughty seconded.
A member asked whether North Dakota has magistrates. Committee members responded that it does, such as city judges and referees who can act as magistrates. For example, law trained municipal judges can issue search warrants in the city where they have
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jurisdiction.
A member said that some of the changes appeared to be substantive. The member said that warrant application by fax was allowed under the current rules. The member said the specific procedure for a fax warrant was not set out separately in the proposal.
A member said that the proposal made such significant stylistic changes that it was impossible to tell whether substantive changes were also being made.
Mr. Kapsner MOVED to instruct staff to revisit the current rule and make stylistic changes without using the
Mr. Kapsner MOVED that staff redraft the amendments to the rule and return it for consideration at the April meeting. Mr. Hoffman seconded. Motion CARRIED 13-2.
RULE 43, N.D.R.Crim.P. - PRESENCE OF THE DEFENDANT (PAGES 330-340 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Mr. Kuntz MOVED to approve the amendments. Ms. Schmitz seconded.
Without objection, reference to "nolo contendere" was removed from the proposal at line 36. Without objection, a repetitive use of the word "initial" was removed from line 6.
Mr. Kapsner MOVED to delete lines 24-25 regarding organizational defendants. Judge Schmalenberger seconded.
A member said that if the language was removed, there would be questions about who should be designated to be present for the organization. A member said that would up to the judge, and it would be difficult to define which person should be present by rule given the many different types of organizations. A member said the code defined who could act on behalf of a given business organization and that judges could look to the code for an appropriate representative.
The motion CARRIED 10-4.
A member observed that there were many occasions when it would be desirable to use Rule 43's provision allowing sentencing when the defendant is absent in felony cases, such as when proceedings are running concurrent with those in other counties or when defendants
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are in prison in other states.
A member said that a defendant should be in court to be sentenced. A member said one point of the rule was to make a defendant face the court to receive punishment.
A member said lines 43-45 were confusing. The member asked why a trial for a defendant who had pleaded guilty would need to continue if the defendant is considered to have waived presence. A member said this would happen if the defendant pleaded guilty and skipped before sentencing.
A member asked why people should be allowed not to show up for their sentencing, as provided in line 39. A member responded that defendants do skip bail and the provision allows the court to go ahead and sentence the no shows. A member said the alternative (without the rule) was to suspend proceedings and issue a warrant.
A member said that it seems like a defendant could waive presence for sentencing under subdivision (c) of the proposal even though presence was required under subdivision (a) for felony sentencing. A member suggested that subdivision (c) referred to "continued presence" which was a different concept than simple presence--the defendant would have had to be present at some point for there to be continued presence.
A member said subdivision (c) seemed geared toward a defendant who showed up for the trial, saw the jury selected and the trial commenced, and took off at some point, or skipped sentencing, or disrupted the trial.
A member said that the language of the unamended current rule seemed to make it clearer that the provisions applied after the trial had commenced. A member said that title of subdivision (c), "Waiving Continued Presence," was not clear and might be one cause of confusion. A member suggested that the title language might be tied to some federal decision that equates fleeing with waiving.
Ms. Schmitz MOVED to amend the title of subdivision (c) on line 24 to read "When Waived." Mr. Hoffman seconded. The motion CARRIED 12-2.
A member said that the new language in subdivision (c) changes the presence requirement. A member said that the rule had never been interpreted to mean that a defendant could be sentenced on a felony when they were not present, even if they were not present due to fleeing. Members said it was clear under the new language that an absent felony defendant could be sentenced.
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A member said that the rule should not be changed if the Committee believes that the new language could be interpreted in a broader manner than the old language. The member said defendants should be present for sentencing.
Ms. Schmitz MOVED to delete "or who had pleaded guilty" from lines 35-36, to delete line 39, and to delete "and sentencing" from line 44. Mr. Kapsner seconded.
A member said that it should be in the court's discretion to sentence a defendant who takes off after pleading guilty. The matter could then be brought to a conclusion at a lower cost.
A member said that by deleting some words in rewriting the rule's language, the sense and substance of the rule has been changed. The member said the current rule language is designed to prevent a mistrial if the defendant flees, not to allow sentencing in a defendant's absence. A member said the problems the Committee has identified with ther proposed subdivision (c) could be corrected by using the language of the current subdivision (b) rather than the proposed new language.
A member said it was important to keep the language about pleading guilty and sentencing in subdivision (c).
The motion to remove sentencing provisions from subdivision (c) was DEFEATED 0-14.
Mr. Hoffman MOVED to substitute the proposed language at line 34 with the language of the current subdivision (b). Mr. Kapsner seconded. The motion CARRIED 10-5.
A member said that proposal as amended required the presence of an organizational representative at all stages. The member questioned whether this would be possible when an out-of-state organization is the defendant. A member replied that if an organization is a defendant a representative needs to be presentan organization should not be treated differently than an individual. A member said if an organization decides not to be present, an action could not go forward without extradition of an organizational defendant.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED 11-4.
RULE 44, N.D.R.Crim.P. - RIGHT TO AND APPOINTMENT OF COUNSEL (PAGES 341-346 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Judge McLean MOVED to approve the amendments. Judge Kleven seconded.
A member asked whether the new requirement for a court inquiry into joint representation was something that happened in courts now, even though not required by the current rule. Members responded that it was done informally.
A member asked whether the system would change if the legislature approved a public defender system. A member said the legislation was not yet finalized and there were many ways where things could change.
A member asked whether anyone had used the provision at lines 16-18 which requires the court to appoint counsel at the defendant's expense if the defendant was unable to obtain counsel otherwise. Members said it was rarely used but necessary to have.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously.
RULE 45, N.D.R.Crim.P. - TIME (PAGES 347-354 OF THE AGENDA MATERIAL)
Staff explained the proposed amendments to the rule. Mr. McLean MOVED to approve the amendments. Judge Foughty seconded.
A member asked who would determine when the clerk's office would be inaccessible due to weather. A member responded that this does happen, as in the Grand Forks flood, and the issue would probably be decided on a case-by-case basis.
The main motion to approve the amendments and add the rule to the Criminal Rules Package CARRIED unanimously.
The meeting adjourned at approximately 11:45 a.m., on January 28, 2005.
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Michael J. Hagburg