TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 9, 2009
RE: Rule 43, N.D.R.Crim.P., Defendant's Presence
By letter dated Dec. 17, 2008, Judge Gail Hagerty requested that the Committee consider superseding N.D.C.C. § 29-22-05. In State v. Kruckenberg, the Supreme Court interpreted this statute to require that jurors be brought back into the courtroom when a question is presented during deliberations and to require that all juror requests for reading of transcripts be granted.
A copy of the Judge Hagerty's letter, the statute, and the Kruckenberg opinion are attached.
As Judge Hagerty explains in her letter, few judges she contacted bring the jury back into the courtroom when it is necessary to answer juror questions. She also writes that judges need to be able to apply discretion in response to juror requests for the reading of the transcript. She suggests that a rule be considered that would allow judges to exercise their discretion in responding to juror questions and to juror requests to have the transcript read.
A copy of the e-mail responses that Judge Hagerty obtained when she inquired about juror question procedure is attached. Committee member Judge Nelson was among the judges Judge Hagerty consulted and can perhaps provide additional insight how courts respond to juror questions and requests.
Staff has prepared proposed amendments to Rule 43 that would incorporate Judge Hagerty's suggestion that courts be allow to use their discretion in responding to juror requests for legal information and testimony.
The Committee should be aware that Kruckenberg was not an unusual case and
Supreme Court has endorsed the procedure set out in N.D.C.C. § 29-22-05 on numerous
occasions. The statutory annotations are attached for the Committee's reference. Other
states use a similar procedure: California's statute on handling juror questions, Cal. Pen.
Code 1138, is almost identical to 29-22-05 and Minnesota has incorporated detailed juror
question handling requirements (including procedures similar to those in 29-22-05) into its
rules of criminal procedure. Copies of the California and Minnesota provisions are attached.