MINUTES OF MEETING
Joint Committee of the Judicial Council
and the State Bar Association
on Rules of Criminal Procedure
July 10-11, 1975
The meeting was called to order at 1:30 p.m. by Justice Paul Sand, Chairman.
Honorable Eugene A. Burdick
Honorable Roy A. Ilvedson
Honorable Gerald A. Glaser
Honorable Larry Hatch
Honorable Wm. S. Murray
Honorable Harry Pearce
Mr. Larry Kraft
Mr. Kent Higgins
Honorable Robert Vogel
Honorable Paul M. Sand
Justice Sand reported to the committee that the executive committee consisting of Justice Vogel and John Graham have discussed the matter of staff for the committee and they ask the full committee to approve Duane Houdek, a University of North Dakota Law School graduate, to do the research and preparatory work between meetings. Judge Murray MOVED, seconded by Mr. Kraft, that Duane Houdek be hired as a staff member of the Criminal Rules Committee. Motion CARRIED.
The Committee discussed Grant No. 6-9 (A-2) for the Procedural Rules Study. This grant will allow the out-of-town members to be reimbursed for their mileage and travel expenses, and provides funds for the salaries of the staff legal researcher and legal secretary.
It was brought to the Committee's attention that John C. McClintock has been named chairman by the Bar Association to represent attorneys on the Joint Committee.
SENTENCE AND JUDGMENT - RULE 32
A proposed revision of Rule 32(f) was presented to the Committee by Mr. Kent Higgins (Appendix A). Also discussed was Judge Hamilton Englert's letter of July 7
and the attachment with regard to this rule (Appendix B). Any action has been deferred until the full committee has had an opportunity to study the proposed revisions and comment.
APPEAL AS OF RIGHT TO DISTRICT COURT, OR COUNTY COURT WITH INCREASED JURISDICTION; HOW TAKEN - RULE 37
See proposed revision drafted by Judge Pearce (Appendix C).
It was MOVED that this committee contact the Allen Smith Company and draw their attention to the fact that there is no annotation to Section 33-12-34 referring to Rule 37(b). Motion seconded by Judge Hatch. Motion CARRIED.
CRIMINAL CONTEMPT - RULE 42
The Criminal Rules and the new Criminal Code are in conflict as to Rule 42 regarding contempt. It was the consensus of the Committee that this rule be studied further and that action be delayed.
CORRECTION OR REDUCTION OF SENTENCE - RULE 35
The Committee directed that Mr. Houdek check the statutes that were enacted permitting suspension or reduction of sentences and that he determine the authority for this.
NORTH DAKOTA RULES OF APPELLATE PROCEDURE COSTS - RULE 39
Judge Glaser proposed a change to Rule 39 in that the standards of the rule insofar as costs are concerned should not be applied to criminal appeals. (See Appendix E)
PROCEDURE RULES COMMITTEE GRANT #6-9 (A-2)
Judge Murray MOVED that inasmuch as this grant provides funds that this Committee is authorized to disburse moneys to members in connection with their travel expenses and mileage; seconded by Mr. Higgins. Motion CARRIED.
INSTRUCTIONS - RULE 30
Judge Pearce drafted proposed revisions to Rule 30 which are indicated in Appendix D. Justice Vogel MOVED that within the proposed revision to Rule 30(c) "before closing arguments" be deleted and add "at an earlier time". Motion seconded by Judge Glaser and CARRIED.
It was MOVED by Mr. Higgins and seconded by Justice Vogel that at the beginning of Rule 30(b) "At the close of the evidence and" be added. Motion lost.
Mr. Higgins MOVED that in Rule 30 (a), line 1, the word "or" should be deleted and insert the word "and". Motion failed for lack of a second.
It was MOVED by Mr. Higgins that in the title of Rule 30(e) following the word "objections" the words "before or" be added. Motion withdrawn by Mr. Higgins.
Mr. Higgins then MOVED that the heading to Rule 30(e) read "Objections to Instructions"; motion seconded by Justice Vogel. Motion lost.
With regard to Rule 30(b) Justice Vogel MOVED that the following language be added to the beginning of the rule "At any time during the trial, the court may and immediately". motion seconded and CARRIED.
Judge Glaser MOVED that under subsection (e) of Rule 30 the fourth line be amended thus: Insert the word "given" immediately after the words "to any instruction" make the word "omission" plural, delete "of" and insert "from", make "instruction" plural, and add the word "given", so that the fourth line would read as follows: "to object to any instructions given or omissions from instructions given." Motion seconded by Mr. Higgins and CARRIED.
With regard to Rule 30(h), Mr. Higgins MOVED that in the second line of that subsection "information" be deleted and "instructions" be substituted. Motion seconded by Judge Pearce and CARRIED.
Mr. Kraft suggested that subsections (g), (h), (i), (j), (k) and (1) be studied further along with consideration of Rule 523 of the Uniform Rules of Criminal Procedure.
Under subsection (1) of Rule 30, Judge Pearce MOVED, seconded by Judge Glaser, that the reference to municipal courts be deleted. Motion CARRIED.
Mr. Higgins MOVED, seconded by Judge Glaser, that the following words be added to the end of subsection (1) of Rule 30: "except that the instructions may be given orally if all parties consent." Motion withdrawn.
With reference to subsection (1), Mr. Higgins MOVED a substitute motion stating that "Instructions shall not be given in county justice courts except where the justice is an attorney in which case the court shall give instructions as provided in this rule except that such instructions may be given orally." Motion seconded by Judge
Pearce and CARRIED.
NEXT MEETING DATE
The next meeting is scheduled to begin at 1:30 p.m., October 1 1975, and will continue October 2.
Judge Glaser MOVED for adjournment. Motion CARRIED.