TO: Joint Procedure Committee
FROM: Sara Selby
RE: Rule 7, N.D.R.Crim.P., The Indictment and the Information
7(a): One of the noticeable style differences between N.D.R.Crim.P. 7(a) and Fed.R.Crim.P. 7(a) is that the revised federal rule has been retitled and split into subsections. As the federal and North Dakota provisions were previously identical and the federal rule's use of subsections with shorter paragraphs is preferred, these changes should be incorporated. See Garner at 18. The rules also use different phrases to describe the prosecutions, with the federal rule describing the offenses by the severity of punishment while N.D.R.Crim.P. refers to the different offenses by the more simple titles "felony" and "misdemeanor." As the North Dakota construction is simpler, it should be retained.
A more substantive difference between the two rules is that N.D.R.Crim.P. 7(a) allows felony prosecution on an information while both versions of the federal rule require an indictment unless waived by the defendant. However, the information is more important in North Dakota practice and is specifically allowed in felony cases by N.D.C.C. 29-09-02. Because prosecution of a felony is allowed either by indictment or information, this language should be retained. The North Dakota rule also specifies that misdemeanors and other offenses may be prosecuted by indictment, information, or complaint, while Fed.R.Crim.P. 7(a) refers readers to another federal rule. However, this rule contains the same language as the North Dakota rule. See Fed.R.Crim.P. 58(b). As North Dakota does not have a section comparable to Fed.R.Crim.P. 58(b), the current language should be retained.
An additional difference is that N.D.R.Crim.P. 7(a) includes the phrase "in the district court," which the Joint Procedure Committee questioned after county courts were eliminated. See Minutes of the Joint Procedure Comm. 9 (Sept. 23-24, 1993). However, the Committee decided to leave the phrase in place to clarify that felonies can only be prosecuted in the district court. See id. Another difference is that the North Dakota Rule uses the phrase "including appeals" when specifying that misdemeanor and other offenses must be prosecuted by indictment, information, or complaint. This phrase was included with the intention of overruling a previous court decision and including municipal appeals to the district court in the language of the rule. See Minutes of the Joint Procedure Comm. 4 (Jul. 25-26, 1968); State v. Bauer, 125 N.W.2d 155 (N.D. 1963).
7(b): N.D.R.Crim.P. has intentionally omitted the section discussing waiver of indictment. As there is no right to prosecution by indictment in North Dakota, this section is unnecessary. See N.D.C.C. 29-09-02
7(c): One of the most noticeable differences between Fed.R.Crim.P. 7(c) and N.D.R.Crim.P. 7(c) is that the federal rule contains several subsections instead of one long paragraph. Although this difference existed even before the 2002 revisions, it might be advisable to adapt a similar format for the North Dakota rule to shorten the section's paragraphs. The North Dakota rule does not contain the information included in Fed.R.Crim.P. 7(c)(2), so only two subsections are needed. As in the federal rule, the subsection (1) could be titled "In General" and contain the majority of the information. Subsection (2) could be titled "Citation Error" and contain the last sentence about the effect of a citation error.
Another difference between the North Dakota rule and its federal counterpart is that the North Dakota rule contains a sentence specifying that the indictment or information identify the defendant. This language was originally found in N.D.C.C. 29-11-14, one of the statutes that N.D.R.Crim.P. 7 superceded. In the Joint Committee Proceedings, members amended N.D.R.Crim.P. 7(c) to include this provision, stating that there should be "language such as found in a warrant" about describing the identity by methods other than true name. See Minutes of the Joint Procedure Comm. 5 (Mar.23-25, 1972). Because this provision was specifically included in the rule when N.D.C.C. § 29-11-14 was superceded, it should be retained. The North Dakota rule substitutes "prosecuting attorney" for "attorney for the government," and this natural and more concise terminology should be maintained.
N.D.R.Crim.P. 7(c) also contains a provision stating that prosecutions other than municipal appeals must be carried on in the name and by the authority of the state of North Dakota, a provision that does not appear in the federal rules. This provision requiring that prosecutions incorporates language from N.D. Const. § 9, and it should be retained. The clause excepting municipal appeals from this requirement allowed them to continue to be filed in the name of the municipality now that county courts have been eliminated and municipal appeals are heard in district court. Additionally, N.D.R.Crim.P. 7(c) contains an "except as required by this Rule" exception to the provision stating indictment need not contain matters not necessary to the statement. This was probably included because the previous sentence's requirement that conclude "against the peace and dignity of the State of North Dakota" could be considered a formal conclusion, and it should be retained. This same sentence also contains the additional phrase "or any matter not necessary to the statement," which further highlights the policy of not requiring legal formulas and should be retained. In this sentence, N.D.R.Crim.P. 7(c) also substitutes "indictment or information" for the federal rule's "it." As the North Dakota formulation eliminates any potential ambiguity that may arise from the more vague "it," the current language should be retained.
Another difference is that the revised federal rule uses the active voice in the sentences discussing references to allegations in other counts and on allegations about the means used to commit the crime. As the North Dakota language is identical to the old federal language and the active voice is the preferred style, this new federal language should be incorporated. See Garner at 4. The revised version of Fed.R.Crim.P. 7(c) makes another style change to the sentence about alleging the means used to commit the crime. It moves the phrase "for each count" to the beginning of the sentence so it can be next to the word it modifies, another change the North Dakota rule should incorporate. See id. at 10.
Yet another difference is that the both federal rules contain a subsection on criminal forfeiture while the North Dakota rule remains silent on this subject. Even the first proposed version of N.D.R.Crim.P. 7(c) did not include this provision, and it is likely that it is unnecessary. See Minutes of the Joint Procedure Comm. 2 (Jul. 25-26, 1968). The last sentence of N.D.R.Crim.P. 7(c) should be moved into a separate subsection (2) titled Citation Errors. The sentence should also be reworded to replace phrases using the "for...of" construction with alternatives that use the more concise "to..." construction. See Garner at 11. While the style of this subsection should change slightly, certain components should be retained. One of these is the North Dakota rule's reference to the information, which should be retained. Another component of N.D.R.Crim.P. 7(c) that should be retained is the use of the phrase "prejudicially misled." This phrase is shorter than either federal rule's language and has the advantage of not using the cumbersome word "thereby" as the revised federal rule does. See id. at 8.
7(d): The major substantive difference between N.D.R.Crim.P. 7(d) and Fed.R.Crim.P. 7(d) is that the federal rule only allows the court to strike surplusage on the motion of the defendant, while the North Dakota rule allows either party or the court itself to make a motion to strike it. The Explanatory Note to N.D.R.Crim.P. 7(d) states, "The purpose of Subdivision (d) is to protect the defendant against prejudicial allegations of irrelevant or immaterial facts." With this goal of protection in mind, it seems sensible to retain this language allowing the court to strike irrelevant information even if the defendant neglects to request it be stricken. The federal rule does not include the phrase "unnecessary allegations may be discarded as surplusage." This phrase seems to mean the same thing as the later clause "the court may strike surplusage from the information or indictment." Because these phrases are redundant, it might be advisable to eliminate the one starting with "unnecessary." There are also several style differences between the federal and state rules. The federal rule has been reworded so that the sentence starts with the prepositional phrase. This moves it closer to the word it modifies and makes the sentence more readable, and the change should be incorporated. See id. at 10. The federal rule also replaces the word "upon" with "on," a change that should also be adapted. See id. at 34.
7(e): There are several style differences between N.D.R.Crim.P. 7(e) and the revised version of Fed.R.Crim.P. 7(e). The most apparent is the title, which the federal rule has changed to "Amending an Information." As there seems to be little difference between the two phrases, it might be easier to adjust the North Dakota rule's title. Additionally, the federal rule rearranges the sentence to put the exception in front of the main clause. This is the currently preferred style and should be incorporated. See id. at 8.
7(f): One difference between N.D.R.Crim.P. 7(f) and its federal counterpart is that the federal rule permits a longer time period for the motion for the bill of particulars to be filed. This change was made during one of the first Joint Procedure Committee meetings, and it should be retained. See Minutes of the Joint Procedure Comm. 3 (Jul. 25-26, 1968). Another difference that exists between the revised federal and North Dakota rules is that the new federal rule rephrases "at such later time as the court may permit" as "at a later time if the court may permit." The North Dakota and old federal rule contain identical language and the style revision conforms with the Guidelines' recommendation to avoid the word "such," so it seems reasonable to incorporate this revision. See Garner at 34.
N.D.R.Crim.P. 7(f) also contains two sentences not found in Fed.R.Crim.P. 7(f). The first of these sentences requires that the motion be in writing and specify the particulars sought by the defendant, and the second states the standard for granting a bill of particulars. The first proposed version of N.D.R.Crim.P. 7 omitted these sentences and more closely resembled the federal rule, but additional sentences were added to the draft during the first Joint Procedure Committee meeting to discuss the subject. See Minutes of the Joint Procedure Comm. 2-3 (Jul.25-26, 1968). As these sentences were an intentional departure from a version of the rule that more closely resembled the federal rule, they should be retained.
However, a few changes to the style and the order of the sentences might make the section easier to read. The sentence about granting the motion for a bill of particulars should be rephrased to use the active voice, and "shall" should be replaced with "must." See Garner at 4, 29. It might also be advisable to change "such conditions as justice requires" to "any conditions that justice requires" to avoid the "such...as" formula. See Garner at 34. Another potential problem with the last three sentences is that they disrupt the natural order of the paragraph. The section starts by specifying time limits for filing the bill of particulars, moves to standards for granting it, shifts back into discussion of requirements for the bill of particulars, and ends by discussing amendments. It might be reasonable to place the sentence requiring the motion for a bill of particulars to be in writing after the sentence discussing time periods for filing. After these revisions, the paragraph would first discuss the requirements on the motion, then the standard for granting the motion, and finish by discussing the possibility of amending the bill of particulars after it has been granted.
7(g): There is no federal equivalent of N.D.R.Crim.P. 7(g). This provision superceded N.D.C.C. 29-11-57, and at the time the statute was superceded there was some discussion among the Joint Procedure Committee whether the provision was necessary. See Minutes of the Joint Procedure Comm. 6-7 (Mar.23-25, 1972). After examining a case stating, "all that [N.D.C.C. 29-11-57] has required is that the names of witnesses on whose evidence the information is based be endorsed on such information at the time it is filed. The state's attorney need no longer endorse on the information the names of all witnesses for the prosecution known to him at the time of the filing," the Committee decided to include the language of N.D.C.C. 29-57-11 in a new section (g). See id.; State v. Manning, 134 N.W.2d 91. Because the Committee carefully considered this new section and it incorporates previously existing statutory provisions, it should be retained.
However, several style revisions make this section conform more closely to the other rules. The first sentence could easily be made into two shorter sentences, putting the period after the word "presented." See Garner at 13. Additionally, "thereon" should be replaced by the simpler "on it." See id. at 33. The phrase "at such time as the court by rule or otherwise may allow" breaks the flow of the sentence and is modifying the wrong words. Placing the phase behind "prosecuting attorney" clarifies that the phrase is referring to the time limits that the prosecuting attorney must follow. See id. at 10. The phrase "at such time as the court may prescribe" should be edited to "at a time the court prescribes" to eliminate the use of "such." See id. at 34. Additionally, the phrase "by rule or otherwise" should be moved behind "prescribes" as that is the word it modifies. See id. at 10. The word "shall" in the same sentence should be replaced with the word "must." See id. at 29. The sentence discussing failure to endorse should be reworded to place the interruptive clause "upon application of the defendant" at the end of the sentence. See id. at 9. Additionally, "must" should replace "shall" and "on" should replace "upon." See id. at 29, 34. Finally, the last sentence should be reworded so it is in the active voice. See Garner at 4.