TO: Joint Procedure Committee
FROM: Sara Selby
RE: Rule 9, N.D.R.Crim.P., Warrant or Summons Upon Indictment or Information
9(a): The revised federal rule makes some significant style and wording changes to the first sentence of Fed.R.Crim.P. 9(a). It rewords the sentence to use active voice and eliminates the clause upon the request of the prosecuting attorney. The Explanatory Note states no specific reason for eliminating this clause other than its usual statement about changing the style of the rule. As this rewording reduces the number of clauses in the sentence and makes it more readable, the change should be adapted.
Another difference between the N.D.R.Crim.P. 9(a) and the revised version of Fed.R.Crim.P. 9(a) is that the North Dakota rule uses the phrase "if it is supported by a showing of probable cause as required in Rule 4(a)." The old federal was similar, but the revised version uses the exact words from 4(a). As many of the other changes to the federal rule involve replacing identical language with references to other rules, it seems odd to replace the more concise reference to a rule with a reiteration of its contents. Therefore, the reference should be retained. Another change to the first sentence is that "shall" should be replaced by "must." See Garner, Bryan A., Guidelines for Drafting and Editing Court Rules 29 (1996).
Additionally N.D.R.Crim.P. 9(a) uses the phrase "warrant of arrest" instead of the federal rule's "arrest." The current language should be retained as it is more specific, but the phrase should be changed to the more concise "arrest warrant." See id. at 11. The revised federal rule also moves the phrase "the indictment" so it is before the discussion of probable cause rather than after it. This rewording makes the sentence flow more easily, and it should be incorporated.
The first sentence of the federal rule contains a clause stating that a summons may issue upon the request of the prosecuting attorney, while the North Dakota rule has a separate sentence that allows the court to issue a summons on its own motion or on the request of the prosecutor. The revised federal rule conflicts with N.D.R.Crim.P. 4(a)(2), which explicitly places the decision to grant a summons in the hands of the magistrate rather than those of the prosecutor and the importance of probable cause in the decision. See Minutes of the Joint Procedure Comm. 11-12 (Jan.27-28-29, 1972). Because of this difference, the change should not be incorporated.
While the sentence should be retained in its current substantive form, some style changes could bring it closer to the style used in the rest of the rule. "Shall" should be replaced by "may," "upon" should be replaced with "on," and the sentence should be reworded so that the interruptive beginning with "after" is at the beginning. See Garner at 9, 29, 34.
In addition to these differences, the North Dakota rule's first sentence contains a final clause not found in either version of the federal rule, which creates an exception for defendants who have already been held to answer for the offense charged. This sentence has been part of the rule since its first draft, and there is no reason that it should be eliminated. See Minutes of the Joint Procedure Comm. 11-12 (Jan.27-28-29, 1972). However, the first sentence is already quite long, so it might be advisable to create a separate sentence for this clause. See Garner at 13. This new sentence should be reworded to use active voice. See id. at 4.
In the third sentence, N.D.R.Crim.P. 9(a) contains the clause "upon like request or its own motion," which is not found in Fed.R.Crim.P. 9(a). This clause should be retained to emphasize that either the court or the prosecutor may initiate the action, though "upon" should be replaced by "on." See id. at 34. In this same sentence, "shall" should be replaced by "may." See id. at 29. The fourth sentence should be reworded to use active voice, and "shall" should be replaced by "must." See id. at 4, 29.
In addition to these differences, Fed.R.Crim.P. 9(a) has modified the provision requiring a judge to issue a warrant if a defendant fails to appear in response to a summons, and the revised version now gives the judge discretion in such matters. This difference mirrors the difference between N.D.R.Crim.P. 4(a), which requires that a warrant be issued if the defendant fails to appear, and its federal counterpart, which has been amended to allow more discretion in such cases.
The federal rules provide little explanation of the reasons for this change, and as the change would be substantive retaining the sentence in its current form might be best. However, some small style revisions would bring it closer to the style of the rest of the rule. The sentence should also be reworded to use active voice, and "shall" should be replaced by "must." See id. at 4. In the federal rule, this sentence is placed before the sentence discussing the execution of the warrant or delivery of the summons. However, the North Dakota rule seems to more accurately convey the timing of these processes, and its current sentence arrangement should be retained.
9(b)(1): One difference between the federal and state rules is that the North Dakota rule restates a section of N.D.R.Crim.P. 4(b)(1) which requires warrants to command the defendant be arrested and brought before court. This provision has existed since N.D.R.Crim.P. 9 was drafted, and there is no reason to amend it now. See Minutes of the Joint Procedure Comm. 11-12 (Jan.27-28-29, 1972). However, the first clause of this sentence should be reworded to use active voice, and "shall" should be replaced by "must." See Garner at 4, 29.
Additionally, the revised federal rule has eliminated the sentence discussing bail. The Explanatory Note states that this was done to prevent inconsistencies with the 1984 Bail Reform Act. As this is a federal statute and there is no comparable state act, the North Dakota language should be retained. The sentence discussing bail should, however, be reworded to use active voice. See id. at 4.
9(b)(2): N.D.R.Crim.P. 9(b)(2) differs little from its federal counterpart. The old federal rule contained "a magistrate" instead of "the court." However, the new federal rule has been revised to use the same language as the North Dakota rule. Therefore, the North Dakota language should be retained. Both instances of "shall" should be changed to "must," and "the" should be changed to "a." See id. at 29. Additionally, "summon" should be replaced by "require," a word that conveys the same meaning in simpler language.
9(c)(1): There are several differences in how the federal and state rules discuss the form of the summons. The older version of Fed.R.Crim.P. 9(c)(1) contains two sentences discussing service on a corporation and the execution of a warrant, and the revised federal rule contains a reference to Rule 5(a)(1). The initial draft of the North Dakota rule language similar to the old federal rule, but the Committee amended the language to its current form before the rule was adapted. See Minutes of the Joint Procedure Comm. 7-8 (May 3-4, 1968). As N.D.R.Crim.P. 4(c)(1) and (2) already discuss execution of a warrant and N.D.R.Civ.P. 4(d)(4) discusses service of summons on a corporation, there is no need to incorporate this language into 9(c)(1).
9(c)(2): The primary difference between N.D.R.Crim.P. 9(c)(2) and the revised version of Fed.R.Crim.P. 9(c)(2) is that the federal rule has replaced the provisions discussing return with a reference to Rule 4(c)(4). It would be possible to make a similar change in the North Dakota rule by including a reference to N.D.R.Crim.P. 4(d), and as the reference is more concise it would be advisable to make this change.
9(c)(3): Another difference is that the revised federal rule has created this subsection for a sentence that directs readers to provisions in Fed.R.Crim.P. 5 discussing initial appearance. The old federal rule contained similar language, which it placed in Fed.R.Crim.P. 9(a). The North Dakota rule has never contained a reference to N.D.R.Crim.P. 5, and there is no reason to change this pre-revision difference between the state and federal rules. See Minutes of the Joint Procedure Comm. 7-8 (May 3-4, 1968).