TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 13, N.D. Sup. Ct. Admin. Order; Interactive Television Pilot Project, East Central Judicial District
Pursuant to a request from the East Central Judicial District, the Supreme Court recently approved Administrative Order 13, which allows the ECJD to undertake an Interactive Video pilot project. The Supreme Court has forwarded Administrative Order 13 to this Committee for review and comment.
Administrative Order 13 is a modified version of Administrative Order 11, under which the South Central Judicial District has operated its own ITV pilot project since March 2000. The goal of the SCJD pilot project was to establish an ITV system that would link judges with remote sites in rural areas of the district. The memo from Judge Racek, which is included as part of the meeting materials, suggests that the main goal of the ECJD project is to put in place a system under which routine criminal procedures can be conducted by ITV from the new Cass County jail.
Administrative Order 13, as adopted by the North Dakota Supreme Court, will allow most routine criminal proceedings to be conducted by ITV. ITV testimony, however, is not allowed in a criminal case unless the defendant consents.
The ECJD and the Supreme Court both recognize that North Dakota's procedural rules may bar certain ITV proceedings allowed by Administrative Order 13. This is why the following rules were waived under Administrative Rule 13(A) so that the pilot project could go forward:
N.D.R.Civ.P. 43 (a), which requires the taking of witness testimony in "open court;"
N.D.R.Crim.P. 5 (a), which requires that an initial appearance be made "before the nearest available magistrate;"
N.D.R.Crim.P. 10, which requires an arraignment to be conducted in "open court;"
N.D.R.Crim.P. 11 (b), which requires the court to address the defendant "personally" before accepting a guilty plea;
N.D.R.Crim.P. 15 (f), which requires the presence of the defendant at any deposition to perpetuate testimony;
N.D.R.Crim.P. 17.1 (b), which requires the omnibus hearing to be conducted in the presence of the defendant;
N.D.R.Crim.P. 26, which requires the testimony of witnesses to be taken in "open court;"
N.D.R.Crim.P. 32 (f), which requires any probation revocation hearing to be conducted in "open court" with the defendant "present;" and
N.D.R.Crim.P. 43, which is the general rule discussing the presence requirement in criminal cases--it allows the defendant in misdemeanor cases to waive the presence requirement if such waiver is in writing.
The rules waived fall into two general categories: those requiring certain procedures to take place with the defendant present before the court and those requiring witnesses to testify publicly in the presence of defendant. As discussed in the Memorandum of Matt Kipp, the requirement that a defendant be "present" for certain proceedings seems to arise from the rules and traditional practice--the requirement that witnesses testify in public and in the presence of the defendant arises from the confrontation clause of the Sixth Amendment.
Included in the meeting materials is the draft order originally proposed by the ECJD and Administrative Rule 11, which Administrative Rule 13 is based upon. Some changes were made to Administrative Rule 11 in the process of crafting a rule that would suit the ECJD's needs: the requirement for advance notice of intent to use ITV in a criminal proceeding was eliminated as was language that would have prevented ITV proceedings from going forward over objection of a party.
The Supreme Court submitted Administrative Order 13 to the Committee for comment. Does the Committee have any comments or recommendations for amendments or changes in regard to this order?