TO: Joint Procedure Committee
FROM: Sara Selby
RE: Rule 4, N.D.R.Crim.P., Arrest Warrant or Summons Upon Complaint
4(a)(1): The first differences between the North Dakota rule and the updated federal rule are in the first sentence of (a)(1). The federal rule changes the sentence's wording so that it is in the active voice. As the North Dakota and old federal provisions are similar and the change is stylistic, it seems advisable to reword the first sentence of the North Dakota rule so that it is also in the active voice. In this same sentence, the updated federal rule chooses to use the phrase "one or more affidavits" while the North Dakota rule uses "any affidavit." As the North Dakota rule was amended to use this wording instead of the language in the old federal rule, it should be preferred to the newly amended federal language. See Minutes of the Joint Procedure Comm. 15 (Nov.20, 1969). However, the updated federal rule consistently replaced "any" with "a" or "an" in its style revisions, so the phrase "an affidavit" might be the preferred option. The North Dakota rule also includes the word "criminal" before "offense," which differs from both the old and the updated federal rules. This word adds specificity to the provision, and it should be retained.
The clause "a warrant for the arrest of the defendant upon the complaint shall issue" should be changed to "the magistrate must issue an arrest warrant." There are no substantive differences between these two options, and the second option conforms to the federal rule's preference for the active voice and it's avoidance of the word "shall." The updated federal rule uses the word "judge" instead of "magistrate," but it is questionable whether this revision would be appropriate for the North Dakota rule. The updated federal rule uses "judge" to clarify that the person should be a federal judicial officer rather than a state or local magistrate. However, North Dakota faces no such problem, and the word "magistrate" has been defined in N.D.C.C. § 29-01-14. Because of this, it seems advisable to continue to use the word "magistrate" throughout the rule. The first sentence of (a)(1) also contains a parenthetical directing readers to (a)(2) for more information about exceptions to the rule. This is not a component of the federal rule, but given the greater length of the North Dakota rule it is necessary to provide this signal guiding readers to related information.
One of the most visible differences in the North Dakota rule is that it contains several sentences about the process of obtaining a warrant. The old federal rule contained one sentence stating that hearsay evidence could be considered when examining whether there was probable cause to issue a warrant, but the drafters of the updated rule felt this provision was no longer necessary because case law confirmed that hearsay was admissible in these situations. However, the North Dakota rule contains not only a brief statement that hearsay is admissible, but also defines the requirements for hearsay to be accepted. Comments during the 1972 revision of the rules indicate that committee members felt the hearsay provision could aid officers in understanding the requirements for issuing a warrant, suggesting they felt it was far from unnecessary. Minutes of the Joint Procedure Comm. 9 (Jan.27-28-29, 1972). As there is no compelling reason to eliminate the hearsay provision, it should be retained. While the substance of the rule should be preserved, some style revisions might improve its clarity. The phrase "shall be based upon evidence" should be replaced by "must be based upon evidence." Additionally, the commas surrounding the interruptive "which may be hearsay in whole or in part" would conform more closely to the Guidelines for Drafting and Editing Court Rules if they were replaced by dashes. See Garner, Bryan A, Guidelines for Drafting and Editing Court Rules 10 (1996).
The North Dakota rule also contains provisions allowing the magistrate to examine the complainant or witnesses under oath and providing additional procedural protections in cases where the magistrate is not admitted to practice law in North Dakota. Although these provisions are not contained in the federal rule, the Joint Procedure Committee's minutes indicate that it considered the ability of the magistrate to examine the complainant or witnesses under oath an to allow a means besides the complaint for the judge to ascertain whether there is probable cause. Minutes of the Joint Procedure Comm. 10 (Jan.27-28-29, 1972). The history also indicates the Joint Procedure Committee was concerned about magistrates not learned in the law improperly interpreting probable cause requirements, and that they took care extending the statute to all magistrates who might not have proper knowledge of these requirements. Minutes of the Joint Procedure Comm. 7e (Jan.27-28-29, 1972).
However, some stylistic revisions are needed to preserve continuity throughout the rule. The phrase "shall be recorded" should be replaced with "must be recorded," and the phrase "by a court reporter" should be eliminated in the interest of brevity. The sentence starting with "If the magistrate before whom the complaint is made is someone other than a person has not been admitted to practice law in this state, he shall not issue a warrant" should be reworded to use the active voice, and "shall not" should be replaced by "may not." The phrase "or other written evidence submitted to him" should also be altered to eliminate the somewhat outdated use of gender-specific language. Eliminating the words "submitted to him" would both shorten the sentence and preserve the current meaning. The phrase "a warrant may issue" should be reworded to use the active voice and maintain a consistent style throughout the rule.
4(a)(2): In the North Dakota rule, section (a) is spit into four subsections, while federal rule contains all the information on issuance of warrants and summons in the same paragraph. However, combining the subsections of the North Dakota rule would result in an unnecessarily lengthy paragraph, so the separate subsections should be retained. One important substantive difference is that both versions of the federal rules allow a summons to be issued upon request of the prosecutor, while the North Dakota rule allows a summons to be issued if the magistrate has reason to believe the defendant would appear or if the defendant was a corporation. The Committee discussed this difference explicitly during the 1972 revisions, and endorsed the current North Dakota provision on the grounds that it encouraged the use of the summons. Minutes of the Joint Procedure Comm. 11-12 (Jan.27-28-29, 1972). This substantive difference is tailored to the needs of the state, and should be retained. To maintain consistent style throughout the rule, the sentence structure should be rearranged to use the active voice.
4(a)(3): The first sentence of (a)(3) contains wording that is different from that used in a similar sentence in both versions of the federal rules. North Dakota uses the phrase "who has been duly summoned fails to appear" while the federal rule uses "fails to appear in response to a summons." Although this difference exists in the old version of the federal rules as well and is not the result of the December 2002 revisions, the federal language has the advantage of greater clarity and might be a better choice. Additionally, (a)(3) contains a provision allowing for relief if it is merely anticipated that the defendant will not appear, which is not included section (a) of either version of the federal rules. This anticipatory remedy contemplates situations in which there is reason to believe the defendant will not appear before the specified date, and it should be retained as an important substantive difference between the two rules. However, the word "he" might be reasonably updated to "the defendant," and the clause about issuing an arrest warrant should be reworded. There is some difficulty in choosing a word to replace "shall" in this context. The notes to the revised federal rule state that the wording change was intended to allow the judge discretion in issuing warrants. This does not necessarily mean that North Dakota must adopt this rule, and it might be better to replace the old wording with "a magistrate must issue an arrest warrant" to retain the current substance while updating the style.
The second sentence of (a)(3) contains language on the procedural steps taken when a defendant corporation fails to appear in response to a summons. This language is not included in the federal rule, but seems to contemplate a situation that the federal rule chooses not to speak to. Because this unique language was written in contemplation of the special circumstances surrounding a defendant corporation, it should be retained. This sentence also contains the "duly summoned" language, which can be replaced by "fails to appear in response to a summons."
Additionally, the current ND rule contains both passive voice and gender-specific language in the phrase "a plea of not guilty shall be entered by the magistrate if he is empowered to try the offense." Rewording this sentence so that it begins, "a magistrate who is empowered to try the offense" eliminates both problems. However, this leads to a question whether the magistrate "must" or "may" enter a plea of not guilty. Shall means "has a duty to," which is closer to "must" than "may." However, North Dakota rule has a clause stating that after the plea has been entered, the magistrate "may" proceed to trial. This might suggest that "may" is the preferred word to replace shall in this context. However, given the implications of the word "shall," it seems like a better choice to substitute "must." A later clause in the same sentence currently stating, "if the magistrate is not so empowered" should probably be altered to "a magistrate who is not so empowered" so that it mirrors the first clause. This clause contains another "shall," though the provision's language about proceeding as if the defendant had appeared suggests that "must" is the appropriate substitute in this situation. The use of "must" in this clause might strengthen the argument that "must" is preferable to "may" in the previous clause as well.
4(a)(4): The provision allowing more than one summons or warrant to be issued on the same complaint should be reworded to use the active voice, but otherwise needs no revisions.
4(b)(1): There are several substantive differences between North Dakota's (b)(1) and the comparable federal provisions. The North Dakota rule requires that the warrant be in writing in the name of the state of North Dakota, include the title of the magistrate's office and the magistrate's signature, and contain the date of issuance and the municipality or county where the warrant was issued. These additional procedural steps are either intended to provide additional protections, and they should be retained. The federal rule makes a substantive change of wording from "before the nearest available magistrate" to "without unnecessary delay", which it felt more accurately reflected the idea that the defendant should be brought before a magistrate quickly. However, this is a substantive change, and as nothing in the history of the ND rules reflects a preference for closeness over quickness, it's debatable whether it should be changed just because the federal rule was revised.
There are also a number of form differences between North Dakota's (b)(1) and the revised federal rule's section (b). The most noticeable is that the revised federal rule has changed its previous paragraph format into a list format. The Guidelines for Drafting and Editing Court Rules recommends this format for longer paragraphs of requirements, and since the North Dakota list of requirements is longer than the federal rule, it might be advisable to adapt the list format. See Garner at 21. To complement the list format, phrases such as "it shall" should be eliminated so that all items on the list begin with a verb. Additionally, semicolons should be substituted for periods and commas at the end of list items, and the word "and" should be eliminated in some places. "His office" should be replaced with "the magistrate's office" to eliminate gender-specific language. Additionally, "It shall specify the name of the defendant, or if his name is unknown, a name or description by which he can be identified with reasonable certainty" should be replaced by the federal rule's "contain the defendant's name, or if it is unknown, a name or description by which the defendant can be identified with reasonable certainty" to eliminate excess words and gender-specific language. North Dakota's subsection (E) uses the phrase "against the defendant" while the comparable provision in both versions of the federal rule contains the phrase "in the complaint." There seems to be nothing in the to indicate why "against the defendant" is not acceptable statutory language, so it should be retained.
The North Dakota rule also includes a provision allowing recommended bail to be included in the warrant, while the federal rule is silent on this matter. The explanatory to Rule 4 states that this provision was included because of the sentiment that the magistrate issuing the warrant would be in a better position to determine an appropriate amount of bail than the magistrate the defendant will appear before following the arrest. Because this is an important, thought-out substantive difference, it should be retained.
4(b)(2): Subsection (b)(2) contains some wording differences from the revised federal rule, using "shall" instead of "must" and "shall summon" instead of "must require." However, as these differences are purely stylistic, the provisions should be altered to conform to the style of the federal rule. Another wording difference is that the North Dakota rule uses the language "the magistrate issuing it or another designated magistrate" while the federal rule uses the shorter "a magistrate." Since the phrase "a magistrate" encompasses the two provisions of the North Dakota phrase and avoids the outdated "therein," the federal language is probably preferable.
Subsection (b)(2) also contains a statement requiring a summons to inform the defendant that a warrant for his arrest will issue if he fails to appear, a provision that does not appear in the federal rules. This provision was the source of discussion during the 1972 amendment proceedings, with the Joint Procedure Committee deciding to retain the provision because they wanted to have some sort of remedy for failure to appear. Minutes of the Joint Procedure Comm. 13-14 (Jan. 27-28-29, 1972). As this is a substantive issue previously deemed important by the Committee, the provision should not be altered simply because the federal rules have made some changes.
4(c): There are several differences between the organization of the federal and North Dakota rules in section (c), with both versions of the federal rule discussing return in the same section as execution and service and the North Dakota rule giving return a separate subheading. The North Dakota rule separates the information on return because it differs in subject matter from information on execution and service, and this separation should be retained. The headings of the subsections also differ, with the North Dakota rule dividing the subsections into those discussing warrants and those discussing summons while the federal rule uses general features of the process such as territorial limits as headings. Although these differences are differences of form, they existed even before the December 2002 revision of the federal rules. North Dakota's method of organization seems to be as coherent as that of the federal rule, and without a compelling reason there seems no reason to completely reorganize this section.
4(c)(1): There are several differences between 4(c)(1) and comparable sections of the federal rule. North Dakota's provision stating warrants shall be directed to all peace officers and executed only by a peace officer is similar to the federal provision stating that only a marshal or authorized officer may execute a warrant. Although the statement that the warrant be directed to all peace officers in the state is not a component of the federal rule, it is a provision sensibly tailored for a state judicial system and should be retained. There has been some discussion about the appropriate term to use for the authorized officers, and during the 1972 revisions the committee considered changing the term from "peace officer" to "law enforcement officer. Minutes of the Joint Procedure Comm. 15-(Jan. 27-28-29, 1972). However, the committee decided to continue using "peace officer" because it was defined by North Dakota statute and because, as Judge Erickstad described the situation, "it would be easier to drop the issue than continue trying to resolve the 'peace officer' problem." Minutes of the Joint Procedure Comm. 15-(Jan. 27-28-29, 1972). However, 12-04(13) now states: "'Law enforcement officer' or 'peace officer" means a public servant authorized by law or by a government agency or branch to enforce the law and to conduct or engage in investigations or prosecutions for violations of the law. Since "law enforcement officer" is also defined, some objections to changing the terminology have been removed. However, the North Dakota Rules of Court continue to use the phrase "peace officer," and it is preferable that the rules use consistent terminology. For these reasons, it might be better to retain the term "peace officer." See N.D.R.Ct. 6.6. While the greater part of subsection (c)(1) should be maintained in its current form, the word two instances of the word "shall" should be modified to "is" and "may" respectively
The second sentence of 4(c)(1) also contains several differences from the federal rule. While both rules have a provision stating that the warrant is executed by the arrest of the defendant, the North Dakota rule places it in the second sentence while the federal rule uses it in the first section. However, because the North Dakota rule contains additional information about how the warrant should be directed, it makes sense to put this information in front of information about the later step of executing the warrant. The North Dakota rule also contains a provision that allows the warrant to be executed in any county of the state by any peace officer of the state, which is similar to the federal rule's location limits when differences in jurisdiction are accounted for.
The third sentence of the North Dakota rule contains few substantive differences from the federal rule, but there are a number of style differences. The federal rule begins, "Upon arrest, an officer possessing the warrant" while the North Dakota rule use a somewhat longer phrase to express the same information. Because it is desirable to reduce the length of the rule's paragraphs, the shorter federal sentence might be preferable. The North Dakota rule should insert the phrase "or a copy" after "possessing the warrant" as this phrase was in the original (c)(1). However, the word "thereof" should be eliminated as unnecessary and the word "shall" should be replaced by "must." In the phrase "show the warrant or a copy thereof to the defendant," the already-used phrase "the warrant or a copy thereof" could be replaced by "it" without altering the clarity of the sentence.
There are also some potential style changes in the fourth sentence of (c)(1). The word "thereof" should again be eliminated, and the phrase "have the warrant or a copy in his possession" could easily be altered to "possess the warrant," a phrase which would be shorter and closer to the federal language. Changing "he shall then" to "the officer must" is another modification that would eliminate gender-specific pronouns and bring the style closer to that of the federal rule. One difference that exists between the North Dakota rule and both versions of the federal rule is that the North Dakota rule uses the phrase "of the offense charged and of the fact that a warrant has been issued" while the federal rules use "of the warrant's existence and of the offense charged." Although this version existed even before the 2002 revisions, the lack of substantive difference and the federal rule's shorter length make it a more attractive option. The revised federal rule replaces the phrase "upon request" with "at the defendant's request." This has the benefit of clarifying who must make a request for the warrant to be shown, and should be incorporated into the North Dakota rule. Additionally, the phrase "he shall" should be changed to "must," since the new wording of the sentence eliminates the need for a pronoun in that position.
4(c)(2): The provision discussing service of a summons should be retained in its substantive form. Although the federal rules specify certain procedures for delivering a summons, the North Dakota rule allows the summons to be served in the manner defined in the its Rules Civil of Procedure. As this procedure is outlined elsewhere, there seems to be no need to describe it in detail here. Additionally, maintaining this reference language prevents the civil and criminal summons procedures from diverging if there are later revisions to the North Dakota Rules of Civil Procedure. While the substance of the subsection should be preserved, some minor style modifications are recommended. The phrase "shall be" should be replaced by "is" and the second sentence should be reworded so that it is in the active voice.
4(d) : As discussed above, subsection (d) differs from the federal rule in placing the return provisions in a separate section. As the return information differs in substance from the other information discussed in 4(c), this difference should be retained. However, the form of the federal rule also differs in its choice to break up the sentences into three subsections. As these subsections do not entail a substantial reorganization of the information and reduce the length of the paragraph, they should be incorporated into the North Dakota rule. The rule should be divided so that the first two sentences discussing the return of a warrant are in subsection (1), the sentence discussing the return of a summons is in subsection (2), and the section's last sentence discussing the delivery of an unexecuted warrant or unserved summons to a peace officer in subsection (3).
4(d)(1): The first sentence of subsection (d)(1) should be reworded so that it uses the active voice, replaces the word "shall" with "must," and eliminates the word "thereof." Additionally, the federal rule uses "in accordance with" instead of "pursuant to." This echoes the Guidelines for Drafting and Editing Court Rules' recommendation to avoid "pursuant to." See Garner at 34. The Committee could follow the federal rule and replace the phrase with "in accordance with," though if it chose it might also follow the Guidelines' suggestion of "under" as a replacement word. Id. In the second sentence, "shall" should again be replaced by "must." Both versions of the federal rule choose to use the phrase "returned to and canceled by the magistrate who issued it," while the North Dakota rule uses, "returned to the magistrate who issued it and shall cancel it." There is no difference in the meaning of these two phrases, the federal rule's placement of the two verbal phrases emphasizes that both return and cancel are actions to be taken, while the North Dakota's placement of "cancel it" could lead to confusion about the order of events. For this reason, the wording of the federal rule might be preferred as less ambiguous.
4(d)(2): Subsection (d)(2) contains similar language to a provision of the revised federal rule, but the two rules arrange the sentence differently. The revised federal rule has substituted "must return it" for "shall make return thereof" and has moved "on or before the return day" so that it is next to "it," the word it modifies. Both of these style changes should be adapted as they make the sentence more readable. The revised federal rule has also eliminated the phrase "to the magistrate before whom the summons is returnable." While this shortens the paragraph, it leaves room for misunderstandings about who to return the summons to. Because of this potential problem, it seems appropriate to retain the sentence in the North Dakota rule.
4(d)(3): Subsection (d)(3) contains few substantive differences from the relevant federal provision. The North Dakota rule contains the phrase "made while a complaint is pending," which the federal rule eliminates in its revised version. The phrase is probably superfluous since the later clause of the sentence specifies the provision applies only to unserved summonses and unexecuted warrants. However, it may serve to clarify the time frame of this process, and it does not add an unmanageable amount of words to the statute. The revised federal arranges the sentence differently, replacing the phrase "a warrant returned unexecuted and not canceled, or a summons returned unserved, or a duplicate thereof, may delivered by the magistrate" with the more streamlined "a magistrate may deliver an unexecuted warrant, an unserved summons, or a copy of the warrant or summons." As the revised version of the federal provision uses the active voice and avoids uses simpler wording, it might be preferable to the North Dakota rule's current organization of the sentence.
4(e): Section (e) discusses the procedure for amending a warrant or summons, and contains information not found in the federal rule. This should be retained in the revised version of the North Dakota rule, since the language touches on an important substantive point. The word "shall" should be replaced by "may." The sentence uses the passive voice, which is generally disfavored by the Guidelines for Drafting and Editing Court Rules. Garner at 4. However, the Guidelines do permit the passive voice when naming the actor would unduly narrow the meaning. Id. In this case, specifying who is prohibited from discharging a person arrested under a defective warrant might unduly narrow the meaning of the rule by forcing a choice between several actors. While active voice sentences are preferred, changing the voice of the sentence does not seem to be worth the necessary changes.