MINUTES OF MEETING
Joint Committee of the Judicial Council
and the State Bar Association
on Rules of Criminal Procedure
September 27, 1974
The meeting was called to order at 10 a.m. by Justice Robert Vogel, Chairman.
Hon. Robert Vogel, Chairman
Mr. Wallace Berning
Honorable Eugene Burdick
Mr. John Graham
Mr. Kent Higgins
Honorable Roy Ilvedson
Mr. Larry Kraft
Honorable Norbert Muggli
Honorable Wm. S. Murray
Jon Nelson, Law Clerk
Linda Ohlsen, Secretary
It was MOVED by Judge Burdick, seconded by Judge Murray, that the minutes be approved as submitted. Motion CARRIED.
COMPARISON BETWEEN RULES OF CRIMINAL PROCEDURE AND ABA STANDARDS
A report was submitted by Professor Kraft stating differences between the North Dakota Rules of Criminal Procedure and the A.B.A. Standards. It was agreed by the committee members that since the report is lengthy, they would deliberate on it on their own time and bring their thoughts or recommendations to the next meeting. (See Appendix A)
INSTRUCTIONS - RULE 30
Discussion of the points raised by Professor Tom Lockney of the UND Law School (Appendix B) was had by the committee. Professor Kraft stated that Rule 30 could be amended to include essentials of Trial by Jury Standard 5.3 incorporating the essentials of N.D.C.C. 29-22-05 and also by providing guidelines for denial of a request and the authority to repeat, for proper context, other instructions than those requested. Judge Burdick stated that the instructions are covered by the reference to the statute and stated that the Uniform Rules of Criminal Procedure cover it by Rule 523 and 534.
In regard to point 2 (Appendix B) clear non-compliance with the probation standard by allowing a probation
agent to make the arrest, Standards Relating to Probation 5.2(b) "Probation Officers Should Not Be Authorized to Arrest Probationers"; it is the consensus of the committee that it would not be practical to say that probation officers do not ignore violations that they are aware of. Justice Vogel stated that he feels it would be good if a probation officer could have the authority to arrest when there is a violation. Judge Burdick advised the committee that he does not favor arrest for violation. He favors serving notice of hearing rather than the bench warrant. The U.S. Supreme Court is going far in requiring preliminary hearings as described by Judge Muggli from the meeting of the Five State Judicial Conference. There is a preliminary hearing before the probation officer and then the court hearing. Judge Burdick advised that if you hold an individual more than 72 to 96 hours you should have a detention hearing whether there are sound reasons to keep him in detention until the hearing. Judge Muggli would like to hear from some of the probation officers before making any changes.
Having sat on the Parole Board, Justice Vogel stated that he did not remember any complaints; and on the Task Force of Corrections on Criminal Justice Commission a subject which came up was the adoption of the standard of the National Advisory Commission which calls for a unified corrections system. The adoption of the standard of the National Advisory Commission, if applied to North Dakota, would mean unified control over the Penitentiary, the Industrial School and Parole. The chairman requested of the committee members their viewpoint of having probation and parole under the Director of Institutions. Judge Muggli stated it should be. Professor Kraft was of the opinion that it should be under a separate agency. Judge Burdick stated that there is a good reason for having a separate "agency", "department" or "officer" to be in charge of the corrections program so that he could serve as an ombudsman to see where the system is going wrong, where otherwise you have the agency policing itself. He feels that if this "department" of corrections could be set up by someone who has a professional overlook rather than the Director of Institutions you are more likely to have reform. Judge Burdick went on to say that if you take a look at the model Public Defender Act, the Defender General would be the man to take care of this. The Defender General, separate from the Attorney General, but having a parallel role, would handle the area of corrections to try to make sure the department was working fairly.
Mr. Higgins would be very reluctant to see a corrections department under the Attorney General or a Defender General. The logical function of the department of corrections is that its efforts should be to get people out of institutions and keep them out.
Another point raised by Professor Lockney - Why is N.D.C.C. 12-53-15 repealed rather than 12-53-10? Judge Burdick MOVED that the committee should reconsider the revocation of probation under Rule 32 in light of this point raised by Tom Lockney and consider either adopting or expanding to include Rule 641 of the Uniform Rules of Criminal Procedure and put Rule 32(f) on the next meeting agenda. Mr. Higgins seconded the motion. Motion CARRIED. Judge Burdick will also see that copies of the Uniform Rules of Criminal Procedure be distributed to each member of the committee.
Judge Burdick MOVED that the committee place on the agenda of the next meeting Rule 30(c) for reconsideration; seconded by Judge Murray. Motion CARRIED.
RIGHT TO AND ASSIGNMENT OF COUNSEL - RULE 44
Point 4 raised by Professor Lockney is with regard to Rule 44 - does the Court have the authority to overrule by Rule the effect of State v. Heasley, 180 N.W.2d 242 (N.D. 1970), which would seem to be a rule change affecting substantial rights? Discussion followed. Judge Muggli MOVED that Rule 44 be reconsidered and placed on the next meeting's agenda, and also that Jon Nelson research this question. Mr. Higgins seconded the motion. Motion CARRIED.
SENTENCE AND JUDGMENT, PLEA WITHDRAWAL - RULE 32(d)
Professor Lockney stated that consideration might be given to amending Rule 32(d) to simplify the rule and bring it more closely into compliance with Standards Relating to Pleas of Guilty 2.1. It was MOVED by Mr. Berning, seconded by Judge Muggli, that no action be taken on Rule 32(d). Motion CARRIED.
MOTION FOR JUDGMENT OF ACQUITTAL - RULE 29
The committee discussed Professor Lockney's last point - Rule 29, Motion for Judgment of Acquittal. Mr. Higgins MOVED that consideration of the federal language for Rule 29(b) should be placed on the upcoming agenda. The motion was seconded by Mr. Graham and CARRIED.
PLEA BARGAINING - RULE 11
Mr. Kent Higgins reported to the committee that one of the principal objections to plea bargaining is that the public has no access to the way that these decisions are arrived at. He feels that the public has a legitimate grievance. Judge Muggli stated that he insists that the officer (from the police department or sheriff's office) be in the courtroom to give any recommendation he might have to the judge. Judge Ilvedson also stated that the courts need
good public relations for people to continue to have faith in the courts. Justice Vogel requested the committee to postpone action on this rule until the Criminal Justice Commission acts on it.
DISCOVERY AND INSPECTION - RULE 16
In reporting to the committee on Rule 16, Mr. Higgins stated that Rule 16(h)(1) as originally proposed provided for the provision to the defense of a statement by a prosecution witness after the witness had testified in the trial of a case. Rule 16(h)(1) was modified but it was not changed to include the explanatory information included with that provision. Mr. Higgins proposed changes in the language of the explanatory note on page 65 and 66 of the Rules. (See Appendix C).
Judge Muggli requested that since acting on a change of an explanatory note is not required to go before the Supreme Court, that there be an amended sheet prepared reflecting the changes to be inserted in the Rule book. Justice Vogel stated that this could be done.
Mr. Graham suggested that in the second paragraph (Appendix C) "section" is used incorrectly. It should read "subsection".
Judge Ilvedson MOVED that we adopt the suggestion of Mr. Higgins and the language correction in Rule 16. Motion seconded by Professor Kraft. Motion CARRIED. (See Appendix C)
DISCOVERY BY THE PROSECUTION - RULE 16(c)
The committee to study this rule consists of Wallace Berning, Kent Higgins, and Judge Roy Ilvedson. Mr. Berning reported. Judge Burdick MOVED that the committee should reconsider the whole issue of discovery and inspection - Rule 16, stating that discovery and inspection is discussed in subdivision b of 443, Uniform Rules of Criminal Procedure. The motion was seconded by Judge Ilvedson. Motion CARRIED. Discovery and inspection is also discussed under "Discovery and Procedure Before Trial" in the Comparative Analysis of the American Bar Association Standards for Criminal Justice with North Dakota Laws, Rules and Practice.
Judge Ilvedson also stated that the members of the committee should have copies of the Arizona Rules, Uniform Rules of Criminal Procedure and the North Dakota Rules of Criminal Procedure.
REPORT ON ACTION BEING CONTEMPLATED BY CRIMINAL JUSTICE COMMISSION SUBCOMMITTEES ON THE COURTS (KENT HIGGINS) AND CORRECTIONS (JUSTICE VOGEL)
Justice Vogel reported that the Commission suggests the combination of probation and parole with the other correction agencies under a Department of Corrections. The consensus of this committee is that the correction institutions - the North Dakota State Penitentiary, Probation and Parole, Youth Authority, and the State Industrial School should be separate and not under the Director of Institutions. These could be under a Department of Corrections.
Due to the absence of Judge Kirk Smith, Mr. Higgins reported on the subcommittee on Courts by the Criminal Justice Commission. Topics discussed and proposed at the three subcommittee meetings on the courts as outlined by Mr. Higgins include the following:
*Proposed acceptable plan for unification in the court system.
*State Court Administrator for the unified court system.
*Improve the state prosecutor's office by promoting full-time prosecutors.
*Full-time public defenders.
*Establish a method of judicial selection.
*Better time rule for disposition.
A problem with the North Dakota Rules of Criminal Procedure, as stated by Mr. Higgins, is that the Rules merely state "a reasonable time". Judge Burdick MOVED that the matter of designing a better time rule for disposition should be put on the agenda of the upcoming meeting and Jon Nelson shall make a study of other states to see what they have done in this respect. Motion seconded by Mr. Higgins. Motion CARRIED.
SECTIONS SUPERSEDED OR CONSIDERED
It was MOVED by Judge Burdick, seconded by Judge Muggli, that reference to Section 33-07-17, N.D.C.C. should be deleted. Motion CARRIED.
LEGISLATION - JUDICIAL REVIEW OF SENTENCES BY THE SUPREME COURT
Mr. Graham informed the committee that Judiciary "A" has endorsed a document which would be a study calling for an appellate review of sentences. Justice Vogel added that while at the State Trial Judges' Workshop of the National College of the Judiciary in Reno, Nevada, there was discussion of appellate review boards. The boards could
consist of a group of judges, or judges and lawyers, or judges and laymen, so that review would not be by the Supreme Court but by some separate body.
RULES OF CIVIL PROCEDURE
In discussing the Rules of Civil Procedure, with the fact in mind that Mr. Leonard Bucklin's committee of the State Bar Association will shortly be filing recommendations for changes in the Civil Rules, it was the consensus of the committee that Rule 4 of the Rules of Civil Procedure needs change. Rule 4 pertains to Service of Process.
DEPOSITIONS - RULE 15
A letter was received by Chief Justice Erickstad from Mr. Mark Stenehjem regarding Rule 15. Any discussion regarding this has been delayed.
NEXT MEETING DATE
It was MOVED by Judge Burdick, seconded by Mr. John Graham, that the next meeting be held at the call of the chairman. Motion CARRIED.
The Committee stands adjourned until order of the chairman.