MINUTES OF MEETING
Joint Committee of the Judicial Council
and the State Bar Association
on Rules of Criminal Procedure
October 1-2, 1975
The meeting was called to order at 1:30 p.m. by Justice Paul Sand, Chairman.
Honorable Eugene A. Burdick
Honorable Gerald G. Glaser
Mr. Kent Higgins
Mr. Larry Kraft
Honorable Paul M. Sand
Honorable Robert Vogel
DISCOVERY AND INSPECTION - RULE 16
Judge Burdick explained that there is a noteworthy distinction between Rule 16 N.D.R.Crim.P. and Rule 421, Uniform Rules of Criminal Procedure: Rule 16 provides that upon motion the defendant may have access to materials in the possession of the prosecuting attorney; Rule 421 provides that the prosecuting attorney must furnish materials in his possession to the defendant upon request.
It was MOVED by Justice Vogel that Duane Houdek be requested to draft Rules 421 through 438 of the Uniform Rules of Criminal Procedure into a form of substitution for Rules 12.1, 12.2, 15 and 16, N.D.R.Crim.P. Motion seconded by Judge Burdick. Motion CARRIED.
DISMISSAL - RULE 48
It was MOVED by Judge Burdick, seconded by Kent Higgins, that Duane Houdek prepare a comparison of the Federal Time Rule and the Uniform Commissioner's Time Rule (Rule 722) by the next meeting. Motion CARRIED.
MOTION FOR JUDGMENT OF ACQUITTAL - RULE 29
Proposed Rule 29 as amended was discussed by the committee members (see Appendix A). Judge Burdick MOVED that Rule 29 be redrafted using Rule 522 (a) of the Uniform Rules of Criminal Procedure as a substitute for (a) as it was proposed; that Rule 522 (b) of the Uniform Rules be substituted for (b) as it was proposed; and that Rule 551 of the Uniform Rules be substituted for (c) as it was proposed. Motion seconded by Mr. Higgins. Motion CARRIED.
NORTH DAKOTA RULES OF EVIDENCE
Rules of Evidence as proposed amendments are accepted will show the new language underscored and the language deleted will be indicated by the use of dashes.
The Joint Committee on Criminal Rules went through the draft of the Proposed Rules of Evidence as proposed by the Procedures Committee of the State Bar Association of North Dakota.
Rule 101 will be studied by the committee along with a review of the Administrative Practices Act as to the application of rules of evidence to such agency.
Committee members unanimously agreed that the only change necessary in Rule 102 is to insert a comma following the word "evidence" in line 3.
In Rule 103, the committee suggested the following changes:
103 (a) line 3 insert the word "is" following the word "party".
103 (a) (1) line 2 insert a comma following the word "evidence".
103 (c) line 3 following the word "means" a comma should be inserted.
The cases should also be updated in the notes.
Rule 104 should be considered noting the following changes:
104 (b) line 1 "When" should be deleted and the word "Whenever" should be substituted. Line 3 should read as follows: "Court shall admit it upon, or in the court's discretion subject to, the introduction of evidence".
104 (c) line 3 "when" should be deleted and the word "whenever" should be substituted. Line 4 "when" should be deleted and the word "whenever" should be substituted.
104 (e) line 1 the word "rules" should be singular.
In Rule 105 line 1 "When" should be deleted and the word "Whenever" should be substituted.
Rule 106 should be considered with the following changes: line 1 ""When" should be deleted and the word
"Whenever" should be substituted. Line 4 should read: "which in fairness ought to be considered contemporaneously with it."
Rule 201 should be considered with the Uniform Rules of Criminal Procedure.
Judge Burdick suggested that the Uniform Rules of Criminal Procedure be studied in conjunction with Rule 301.
Judge Burdick also suggested that the Uniform Rules draft be used for Rule 302. Note also Uniform Rule draft 303.
The committee suggested no changes at this time to Rules 401, 402, and 403.
In Rule 404 the case of Glatt v. Feist, 156 N.W.2d 819 (1968) should be added to the cases considered.
The following changes were suggested in Rule 405:
405 (a) line 2 "Character" should be "character".
405 (b) line 1 add the word "in" following the word "cases".
Rule 406 should be considered along with the draft of the Uniform Rules and it should be noted that the word "occasion" is misspelled in line 4. Also "Admissibility" should preface (a).
In Rule 407 line 1 "When" should be deleted and the word "Whenever" should be substituted. In line 6 the word "when" should be deleted and the word "if" should be substituted.
The Committee suggested that Rule 408 be considered with the following changes:
"Evidence of (1) furnishing,
or offering, or promising to furnish, or (2) accepting , or offering, or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for, or invalidity of, the claim or its amount or amount of the claim or any other claim. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the eExclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations is not required. This rule also does not require exclusion when if the evidence is offered for another purpose, such as proving bias or
prejudice of a witness,
negativing disproving a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution."
In Rule 409 line 1 a comma should be inserted following the word "furnishing", the word "or" should be deleted following the word "furnishing", and a comma should be inserted following the word "offering".
The Uniform Rule should be studied with Rule 410 when considering it. The Committee also suggested that in line 4 following the word "foregoing" the word "withdrawn" should be inserted.
The Uniform Rules should also be studied with Rules 411 when considering it.
Judge Burdick volunteered to study Rule 501, Privileges and will bring proposed changes to the next meeting.
The Committee had no proposed changes to Rules 601, 602, 603 and 604 at this time.
In Rule 605 line 1 "shall" should be deleted and the word "may" should be substituted.
Rule 606 (b) was suggested by the Committee to read as follows:
"(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith,
except that but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury's attention, or whether any outside influence was improperly brought to bear upon any juror ., or whether the verdict of the jury was arrived at by chance. Nor may his affidavit or evidence of any statement by him concerning a matter about what he would be precluded from testifying be received for these purposes."
State v. Hilling, 219 N.W.2d 164 (1974), should be added to cases considered in Rule 607.
The Committee suggested no changes at this time in Rule 608.
Proposed changes for consideration in Rule 609 are as follows:
"(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted
if elicited from him or established by public record during cross examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.
"(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date
,. unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
"* * *
"* * *
"(e) Pendency of appeal. The pendency of an appeal or a post-conviction proceeding therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible."
Glatt v. Feist, State v. Johnson and State v. Erickson are cases that should be added to cases considered in Rule 609.
Also in the committee comment of Rule 609, the Committee suggested that in paragraph 1, line 3, the word "not" following the word "is" should be deleted. In line 4 of paragraph 1, the word "deferred" should be inserted following the word "to".
In Rule 610, the Committee suggested that the following language be considered when studying this rule:
"unless the beliefs or opinions of a witness are contradictory of his testimony or denigrate his oath or affirmation".
The Committee suggested that in considering Rule 611, the word "When" be deleted in line 4 of paragraph (c) and the word "Whenever" be substituted.
In considering Rule 612, the Uniform Rules of Criminal Procedure should be studied.
In Rule 613(b) line 7 the word "rule" should be "Rule".
Rule 614(a) was suggested to read as follows:
"(a) Calling by Court. The Court,
may, on its own motion or at the suggestion of a party, may call witnesses, and all parties are entitled to cross-examine witnesses thus called."
In Rule 615, line 5 the word "which" should be deleted and the word "that" should be substituted therefor.
The Committee had no proposed changes to Rules 701, 702, 703, 704, and 705 at this time.
The Committee suggested the following language change in Rule 706:
"(a) Appointment. The court,
may on motion of any party or its own motion or on the motion of any party may enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless he consents to act. A witness so appointed shall be informed of his duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of his findings, if any; his deposition may be taken by any party; and he may be called to testify by the court or any party. He shall be subject to cross-examination by each party, including a party calling him as a witness."
Subsections (b), (c) and (d) of Rule 706 remain as proposed by the Bar Association committee.
In Rule 801, the Committee suggested that "Hearsay" be added to the title, that the word "article" be capitalized
in line 1, and that Jacob v. Jahner and State v. Jahner be added to the cases considered in the explanatory note.
The Committee suggested the following language change in Rule 802:
"Hearsay is not admissible except as provided by these rules,
or by other rules adopted by the North Dakota Supreme Court, or Legislature by statute.
Proposed changes the Committee made in Rule 803 are as follows:
"(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition,
(such as intent, plan, motive, design, mental feeling, pain, and bodily health ), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will."
In subsection (7) of Rule 803 a comma should be inserted following the word "memoranda" in line 3.
Subsection (8) is proposed to read as follows:
"(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law
, unless the sources of information or other circumstances indicate lack of trustworthiness."
Subsection (22) is proposed to read as follows:
"(22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a felony, to prove any fact essential to sustain the judgment, but not including, when offered by the
Government prosecution in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal or post-conviction proceeding may be shown but does not affect admissibility."
The Committee also suggested that the Uniform Rules of Criminal Procedure should be studied with this rule.
In Rule 804 at the end of subsections (1), (2) and (3) of section (a) the word "or" should be deleted in each instance. The Commissioner's Uniform Rules should also be studied with this particular rule.
The word "When" in line 1 of Rule 806 should be deleted and the word "If" should be substituted therefor.
In studying Rule 901, the Uniform Rules should again be referred to. Section (10) should be changed to read as follows:
"(10) Methods provided by statute or rule. Any method of authentication or identification complying with
law. these rules, other rules adopted by the North Dakota Supreme Court, or statute.
In Rule 902, section (2) the word "hereof" should be deleted in line 4. Sections (3) and (4) should read as follows:
"(3) Foreign public documents. A document purporting to be executed or attested in his official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court,
may, for good cause shown, may order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.
"(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian
or other person authorized to make the certification, by certificate complying with paragraph (1), (2) or (3)
of this rule or complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority. law of the United States or this state."
In Section (5) of Rule 902, line 2, delete the word "purporting" and add the word "a" before the word "public". In Section (6) the word "materials" in line 1 should be singular. Also, in Section (6) the words "newspapers" and "periodicals" should be singular. In Section (9), line 2, the word "documents" should be singular.
The Committee suggested the following language changes in Rule 1008:
"Whenever the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the Court to determine in accordance with the provisions of
rRule 104. However, when an issue is raised (a) whether (1) the asserted writing ever existed, or (b) whether (2) another writing, recording, or photograph produced at the trial is the original, or (c) whether (3) other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact."
Justice Sand, Chairman, requested volunteers to study the various articles of the Rules of Evidence. Those volunteers are: Judge Burdick, Article V Privileges; Justice Vogel, Article VIII Hearsay; Mr. Kent Higgins, Article VI Witnesses. Appointments will be made by Justice Sand to study the remaining articles.
NEXT MEETING DATE
The next meeting of the Criminal Rules Committee will be Thursday, January 29 at 1:30 p.m. and will continue through January 30.