TO: Joint Procedure Committee
FROM: Sara Selby
RE: Rule 5.1, N.D.R.Crim.P., Preliminary Examination
5.1(a): The revised version of Fed.R.Crim.P. 5.1 is formatted differently than its North Dakota equivalent, and contains several sentences transferred from Fed.R.Crim.P. 5. In the North Dakota rules, these sentences fit more closely with N.D.R.Crim.P. 5's discussion of waiver of the preliminary hearing at the initial appearance, and they should be retained in their current location. The new federal rule also contains some additional details about selecting a district, scheduling, and extending the time periods for holding preliminary hearings. Fed.R.Crim.P. 5.1(b)'s provisions on selecting a district are irrelevant to North Dakota practice. Fed.R.Crim.P. 5.1(c)-(d) contain provisions on time limits for scheduling preliminary hearings that were previously part of Fed.R.Crim.P. 5(c). As N.D.R.Crim.P. 5 did not contain provisions similar to those in the equivalent federal rule, there seems to be no reason to incorporate it as a component of N.D.R.Crim.P. 5.1 now.
The revised version of Fed.R.Crim.P. 5(e) arranges its sentences differently than N.D.R.Crim.P. 5.1(a), describing the process of the preliminary hearing before the results of the hearing. Although this proceeds logically in sequence from the beginning of the hearing to the finding, N.D.R.Crim.P. 5.1(a)'s statement of the purpose of the preliminary hearing followed by the components of the hearing is also logical. Therefore, rearranging the North Dakota rule does not seem necessary. Another difference is that the North Dakota rule uses "arraignment" while the federal rule says vaguely that the defendant should be required to appear for "further proceedings." N.D.R.Crim.P. 5.1(a) formerly contained language more similar to that of the federal rule, but the Joint Procedure Committee decided to amend the language to the current version because the old version improperly implies that the magistrate schedules the arraignment and because the provision's specification of the court where the defendant should be arraigned was unnecessary. See Minutes of the Joint Procedure Comm. 5-6 (Jan.27-28, 1994). One potential problem with the current North Dakota sentence is that both clauses are in the passive voice. The first clause can be reworded by substituting "if the magistrate finds" for "it appears from the evidence there is." However, rewording of the second sentence is more complicated because the magistrate does not actually schedule the arraignment, as mentioned by the Joint Procedure Committee when they discussed this rule. Id. at 5. Because of this, retaining the passive voice in this clause might be preferable. See Garner, Bryan A, Guidelines for Drafting and Editing Court Rules 4 (1996).
The new version of Fed.R.Crim.P. 5.1 has eliminated the sentence specifying that the finding of probable cause may be based upon hearsay in whole or in part. This is similar to the federal revisions of Fed.R.Crim.P. 4(b), which were amended because the federal committee felt the statement was no longer necessary because case law on the subject is now less ambiguous. However, it is not necessary to remove a provision simply because case law has clarified the proposition, and N.D.R.Crim.P. 4 contains a nearly identical statement about hearsay that is recognized in the rule's explanatory note as a statement of existing case law. It might be advisable to retain this sentence, with the small style change substituting "on" for "upon." See Garner at 34. Both versions of the federal rule specify that the defendant may not object to evidence on the grounds that it was unlawfully acquired, while the N.D.R.Crim.P. 5.1(a) uses the different formulation "the magistrate may receive evidence that would be admissible at trial." Although the two formulations are similar, the North Dakota rule clearly diverges from the older federal rule's emphasis on the defendant's objection. Additionally, the difference between "evidence that would not be admissible at trial" and "unlawfully acquired" evidence may be substantive, as there are types of legally acquired evidence that are inadmissable at trial. Because of this distinction, it seems advisable to retain the North Dakota language.
Another difference between N.D.R.Crim.P. 5.1(a) and the older version of Fed.R.Crim.P. 5.1(a) is that the North Dakota rule does not contain a sentence directing motions to suppress to be made at trial. The Joint Procedure Committee specifically chose to reject the sentence alluding to Rule 12 because information regarding motions to suppress seemed out of place as these motions take place after the arraignment. See Minutes of the Joint Procedure Comm. 7 (Jan.27-28, 1994). Continuing to exclude this information seems reasonable because it more properly belongs in another rule, especially since the revised version of the federal rules has also eliminated this sentence.
5.1(b): There are a several style differences between the revised version of Fed.R.Crim.P. 5.1(f) and the substantively similar N.D.R.Crim.P. 5.1(b). The North Dakota rule is in passive voice, while the federal rule is in a more succinct and easily readable active voice. The North Dakota rule also contains the additional clause "after hearing the evidence on behalf of the respective parties in a preliminary examination," which does not appear in either federal rule. Because this difference existed before the revisions, it may be advisable to retain it. "If the magistrate hears evidence on behalf of the respective parties in a preliminary examination, and finds either a public offense has not been committed or there is not sufficient cause to believe the defendant guilty of the offense" might satisfy both requirements. However, eliminating the unique language and adapting the federal sentence "If the magistrate finds no probable cause to believe an offense has been committed or the defendant committed it" might be another solution. The second clause of the sentence should also be reworded to use the active voice and to eliminate unnecessary words.
N.D.R.Crim.P. 5.1(b) lacks the sentence in both the federal rules specifying that a discharge does not preclude the government from a later prosecution for the same offense. According to the minutes of a 1972 meeting of the Joint Procedure Committee, "Judge Muggli noted that the last sentence of Rule 5.1(b), which states, 'The discharge of the defendant from instituting a subsequent prosecution for the same offense,' makes provision for [Section 29-07-18's language on discharging the accused]." See Minutes of the Joint Procedure Comm. 12 (Mar. 23-24-25, 1972). As this language was later eliminated, continuing it excluding it from the current version of the North Dakota rule seems advisable.
5.1(c):The second sentence of N.D.R.Crim.P. 5.1(c) requires that a verbatim record be made upon the request of either party. Members of the Joint Procedure Committee have previously noted that some attorneys inaccurately believe they must request that a record be made of the proceedings See Minutes of the Joint Procedure Comm. 7-8 (Jan.27-28, 1994). In reality, a preliminary hearing is automatically recorded because it takes place in a court of record and parties must only make a request when they want a transcript. See id. The Joint Procedure Committee voted to remove the second sentence in 1994, but the Court later rejected the Committee's recommendation. See id. at 8. Because the sentence continues to have the potential for misinterpretation, it might be advisable to find alternative language. The revised version of Fed.R.Crim.P. 5.1(c) states, "The preliminary hearing must be recorded by a court reporter or by a suitable recording device. A recording of the proceeding may be made available to any party upon request." These two sentences are clear and succinct, and they might be a good substitute for the more ambiguous North Dakota language. However, the federal rule's phrase"by a court reporter or by a suitable recording device" should not be adapted, as discussion of the differences among court reporters, court recorders, and recording devices would not be a useful addition to the rule. Additionally, instead of using "upon" as the federal rule does, it might be advisable to use "on" as it is the word preferred by the Guidelines. See Garner at 34. The new federal language also uses passive voice, which is generally not preferred. However, passive voice construction is acceptable when using the active voice would narrow the meaning of the sentence, and as N.D.R.Crim.P. 5.1(c) contains several sentences where using the active voice would require the actor to be specified it may be better to leave the rule in the passive voice. See id. at 4.
The Second sentence of N.D.R.Crim.P. 5.1(c) states, "Upon request of either party, a copy of the transcript of the record of proceedings must be furnished to the defendant and the State." The slightly different federal rule states, "A copy of the recording and a transcript may be provided to any party upon request..." The federal language is more concise and should be adapted, though the word "upon" should be replaced with "on." See Garner at 34. The third sentence of N.D.R.Crim.P. 5.1(c) contains specific provisions about defendant's payment of costs, but this is not a substantial difference as Fed.R.Crim.P. 5.1(g) makes reference to Judicial Conference regulations applicable to the same subject. This last sentence contains some style problems as it is in the passive voice, and it should be revised so that both clauses use the active voice.
Another difference between the state and federal rule sis that the pre revision version of Fed.R.Crim.P. 5.1(c) begins with a sentence stating that the magistrate must transmit the papers from the proceeding to the clerk of the district court. However, this provision is unnecessary in N.D.R.Crim.P. 5.1(c) as preliminary hearings are held in district court. See Minutes of the Joint Procedure Comm. 7 (Jan.27-28, 1994). The new federal rule also includes two subsections discussing the production of a witness's statement. However, there is no North Dakota equivalent to Fed.R.Crim.P. 26.2 because under N.D.R.Crim.P. 16 witness statements are discoverable at any time during the proceedings and not only after a witness has testified. Because N.D.R.Crim.P. 16 contains the provisions on the sanctions for failing to comply with its provisions, there is no need for N.D.R.Crim.P. 5 to incorporate similar provisions.