TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 5, N.D.R.Crim.P.; Initial Appearance Before the Magistrate; Rule 10, N.D.R.Crim.P.; Arraignment; Rule 43, N.D.R.Crim.P.; Presence of the Defendant
The EJDC, through Judge Racek's memo, made two suggestions in regard to general rules changes that would facilitate use of ITV: that the definition of "presence" (as that term is used in the Rules of Criminal Procedure) be expanded to include presence via ITV and that defendants not be allowed to "opt out" of ITV hearings. As discussed in the previous memo, the Supreme Court responded to these concerns when it issued Administrative Order 13. A larger question is whether these suggestions should be applied to the criminal procedure rules in general.
The Judicial Conference grappled with issues related to ITV in its consideration of amendments to the Federal Rules of Criminal Procedure. Ultimately, the Judicial Conference sent the U.S. Supreme Court amended versions of Fed.R.Civ.P. 5, 10, 26 and 43 which would have allowed ITV proceedings, including the giving of testimony, in criminal cases where the defendant consented to such proceedings.
Simplifying the discussion recorded in the comments to the proposed federal amendments, the Judicial Conference weighed the advantages to the defendant of having criminal proceedings take place in the actual presence of the court and the advantages to the court system of having the option of using ITV and decided that "the court and the defendant should have the option of using video teleconferencing as long as the defendant consents to that procedure."
This view is contrary to the view expressed by the ECJD through Judge Racek's memo:
It will not be cost effective to have the ITV equipment if defendants can opt out. If defendants can choose to appear in person, then some defendants will appear by ITV and some will appear in person. The cost for the ITV equipment will be the same regardless of whether all the defendants appear by ITV or just some of them, but if some defendants can opt out, then the costs of transportation and the Sheriff Department staff are added.
Staff has prepared proposed amendments to N.D.R.Crim.P. 5, 10 and 43 that are consistent with the federal teleconferencing amendments approved by the Judicial Conference and the U.S. Supreme Court. If it chooses to consider these amendments at this time, the Committee may also wish to discuss whether further amendments that would allow ITV proceedings regardless of whether the defendant consents to such proceedings would be appropriate.
The Judicial Conference also proposed amendments to Fed.R.Crim.P. 26 that would have allowed witness testimony to be taken by ITV. The rationale for this proposed change is explained in the Judicial Conference's commentary to the proposed rule. The U.S. Supreme Court, however, rejected the Judicial Conference's proposal. In a statement (which is included as part of the meeting materials) Justice Scalia indicated that allowing ITV testimony was likely unconstitutional under the confrontation clause. Therefore, staff has not prepared any amended rules relevant to ITV testimony. During the effective period of Administrative Rule 13, such testimony will only be allowed when the defendant "knowingly and voluntarily waives his or her right to have the witness testify in person."