RULE 23. TRIAL BY JURY OR BY COURT
(a) Jury Trial. If the defendant is entitled to a jury trial, the trial must be by jury unless:
(1) the defendant waives a jury trial in writing or in open court;
(2) the prosecuting attorney consents; and
(3) the court approves.
(b) Jury Size.
(1) Felony Cases. In felony cases, a jury consists of twelve qualified jurors unless this rule provides otherwise.
(2) Misdemeanor Cases.
(A) In Class A misdemeanor cases, a jury consists of six qualified jurors unless the defendant demands a jury of twelve. The defendant's demand must be in writing and filed with the clerk not later than the time set for making pretrial motions.
(B) In other misdemeanor cases, a jury consists of six qualified jurors.
(c) Stipulation for a Smaller Jury. At any time before verdict, the parties may stipulate in writing or in open court, with the court's approval, that the jury may consist of fewer than twelve persons.
(d) Court Trial. In a case tried without a jury, the court must find the defendant guilty or not guilty.
Rule 23 was amended, effective March 1, 2006.
Rule 23 is adapted from Fed.R.Crim.P. 23 and governs trial by jury or by court in all criminal actions in this state. Rule 23 differs from the federal rule in that the federal rule permits only a written waiver of jury trial. The right to trial by jury is more extensive under North Dakota law than federal law. See N.D. Const. art. I, § 13; N.D.C.C. §§ 29-01-06, 29-16-02, 29-17-12, and 40-18-15.
Rule 23 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Subdivision (b) implements the provisions of N.D.C.C. § 29-17-12 by clarifying when a request for a jury of 12 in a Class A misdemeanor case must be made to be timely.
Subdivision (c) permits either a stipulation in writing before trial that the case be tried by a jury composed of less than twelve or a stipulation during the trial consenting that the case be submitted to less than twelve jurors. The second alternative is useful in case it becomes necessary during the trial to excuse a juror because of illness or some other cause and no alternative juror is available. The federal rule, as amended in 2002, permits a trial by a jury of eleven without a stipulation if the court finds it necessary to excuse a juror after the jury has retired to consider its verdict. Subdivision (c) does not follow the federal rule in this respect because the North Dakota Constitution, art. I, § 13, provides that "A person accused of a crime for which he may be confined for a period of more than one year has the right of trial by a jury of twelve [and] the legislative assembly may determine the size of the jury for all other cases, provided that the jury consists of at least six members."
Subdivision (d) differs from the federal rule in that it requires only a finding of guilty or not guilty, while the federal rule provides for the court to make specific findings of fact if a party requests.
SOURCES: Joint Procedure Committee Minutes of January 27-28, 2005, pages 18-19; April 28-29, 1994, page 7; April 20, 1989, pages 10 and 15-17; December 3, 1987, page 14; September 18-19, 1986, page 3; September 26-27, 1985, pages 3-5; June 22, 1984, page 19; February 20-23, 1973, pages 13-14, 17; October 17-20, 1972, pages 18-23; February 20-21, 1969, pages 1-3; July 26-27, 1968, pages 11-13; Fed.R.Crim.P. 23.
CONSIDERED: N.D.C.C. §§ 27-08-40, 27-08-41, 29-16-02, 33-12-19, 40-18-15.