TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 51, N.D.R.Crim.P., Exceptions Unnecessary
Attached are proposed amendments to Rule 51. The amendments are form and style amendments in the spirit of the December 2002 federal criminal rule amendments and are based on the amendments to Fed.R.Crim.P. 51.
The proposal includes a new subdivision (b) on preserving a claim of error. The subdivision is based on the federal rule. The Committee rejected language that is now part of this subdivision when the rule was originally promulgated.
Excerpts from the Committee's original discussion on adopting this rule are attached. They show that Judge Burdick and future Justice Sand suggested that only the first sentence of the federal rule be included in the North Dakota rule and that the rest of the federal language was unnecessary. Judge Burdick indicated that exceptions were only used with jury instructions (and that the jury instruction rule covered these) so no further discussion of the use of exceptions was needed in the rule.
Under the Committee's amendments to Rule 30, the jury instruction rule, reference to "exceptions" was removed. Rule 30 now talks about objections. The language in proposed subdivision (b) also focuses on objections, rather than on the extinct exception, so the Committee may wish to consider including the subdivision as part of the rule.