TO: Joint Procedure Committee
FROM: Sara Selby
RE: Rule 8, N.D.R.Crim.P., Joinder of Offenses and of Defendants
Before 2002, N.D.R.Crim.P. 8 and Fed.R.Crim.P. 8 were nearly identical, but recent revisions of the federal rules have created several style differences. The first is that the federal rule has changed its title from "Joinder of Offenses and of Defendants" to "Joinder of Offenses or Defendants." This conforms with the style recommendation to minimize "of" phrases, and it should be adapted. See Garner, Bryan A., Guidelines for Drafting and Editing Court Rules 4 (1996).
One of the few differences between North Dakota rule and the pre-revision federal rule is that the N.D.R.Crim.P. 8 allows joinder in the complaint as well as the indictment and the information. This change was made when the rule was first adapted, and should be retained. See Minutes of the Joint Procedure Comm. 5-6 (May 3-4, 1968).
While the North Dakota and federal rules were previously almost identical, the 2002 revisions have created several style differences. The revised Fed.R.Crim.P. 8(a) has been reworded to use active voice, use a numeral for the word "two" instead of spelling it out, used long dashes instead of commas around the phrase "whether felonies or misdemeanors or both," and insert commas into the list of acts that can be charged in two separate counts. These revisions conform to current style guidelines and should be adapted. See Garner at 3, 8, 15.
The revised version of the federal rule also rewords the last item in the list so that the clause begins with the word "are" like the previous two items. This eliminates the phrase "on two or more acts or transactions," which is unnecessary because the introduction to the list already specifies that it is discussing cases of two or more offenses. Additionally, the items on the list are now in parallel form, the recommended style. These style revisions conform to the currently recommended style for drafting rules without changing the substance of any provisions, and they should also be incorporated. See Garner at 23.
The first sentence of the revised Fed.R.Crim.P. 8(b) has been reworded to use active voice in the same way as the previous section, and N.D.R.Crim.P. 8(b) should be revised accordingly. The federal rule adds a comma after the word "transaction," also substitutes "the" for "such," and separates the second sentence into two shorter sentences. See Garner at 13, 34. This conforms with current style guidelines, and N.D.R.Crim.P. 8(b) should incorporate these changes to maintain a uniform style.
The only pre-revision difference between the state and federal rules was the North Dakota rule's use of "one or more offenses" in contrast to the federal rule's "an offense or offenses." This phrase has been part of the North Dakota rule since the rule was first drafted and seems to read more naturally, so it should be retained. See Minutes of the Joint Procedure Comm. 5-6 (May 3-4, 1968).