RULE 21. TRANSFER FROM THE COUNTY FOR TRIAL
(a) For Prejudice in the County. Upon the defendant's motion, the court must transfer the proceeding against the defendant to another county if the court is satisfied that so great a prejudice against the defendant exists in the transferring county that the defendant cannot obtain a fair and impartial trial there.
(b) For Convenience and Justice. Upon the defendant's motion, the court may transfer the proceeding against the defendant to another county for the convenience of the parties and witnesses and in the interest of justice.
(c) Upon Motion of the Court. Upon its own motion, the court may transfer the trial to another county. If any party files an objection to the transfer no later than ten days after notification of the place of trial, the trial must be held at the original location unless grounds exist for transfer under Rule 21(a), (b) or (f).
(d) Proceedings on Transfer.
(1) Transfer of File. When the court orders a transfer, the clerk shall send to the transferee court the file, or a certified copy, and any bail taken. The prosecution will then continue in the transferee county.
(2) Conduct of Case. Upon a transfer under Rule 21, the prosecuting attorney of the county where the action or proceeding was commenced, or any other person appointed to prosecute, shall prosecute the case, and the judge ordering the transfer shall preside at the trial. The action or proceeding, except for the payment and collection of costs, must be conducted as if it had been commenced in the transferee court.
(e) Transfer of Records. After acquittal or conviction in the action or proceeding, the transferee court must retransmit all documents in the action or proceeding to the court where the action was commenced.
(f) Transfer by Prosecution. Upon the prosecution's motion, the court may transfer the proceeding for the reasons listed in Rule 21(a) and (b).
(g) Transfer of Defendant. The transferring court must order the officer who has the defendant in custody to transfer the defendant to the custody of the proper officer of the transferee county. The transfer must be made under the terms of the order.
Rule 21 was amended, effective March 1, 1990; March 1, 2001; March 1, 2006.
Rule 21 was amended, effective March 1, 2001. A new subdivision (c) allows a court to transfer a trial to another county when there is no objection. In deciding to move a trial or proceeding, a trial court must consider N.D. Sup. Ct. Admin. R. 6(B) and 7(B).
Rule 21 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules. In addition, reference to transfers between municipalities was removed from the rule.
Rule 21 contemplates that all transfers shall be made from one court to a corresponding court of the same grade and classification.
Subdivisions (a), (b) and (g) were amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Rule 21 is not designed for cases in which it is claimed that the judge is biased, as there are statutory remedies enabling a party to disqualify a judge. See N.D.C.C. § 29-15-21.
Subdivision (g) was added to incorporate the provisions of N.D.C.C. § 29-15-05 (Disposition of defendant upon removal).
SOURCES: Joint Procedure Committee Minutes of April 28-29, 2005, page 3; January 23-24, 2005, page 17; September 23-24, 1999, pages 13-15; September 24-25, 1998, pages 16-17; April 20, 1989, page 4; December 3, 1987, page 15; September 18-19, 1980, pages 15-18; April 24-26, 1973, page 11; October 17-20, 1972, pages 5- 11; September 17-18, 1970, pages 7-9; September 25-27, 1968, pages 9-11; Fed.R.Crim.P. 21.
SUPERSEDED: N.D.C.C. §§ 29-01-33, 29-15-01, 29-15-02, 29-15-03, 29-15-04, 29-15-05, 29-15-06, 29-15-07, 29-15-08, 29-15-09, 29-15-10, 29-15-11, 29-15-12, 29-15-20, 33-12-14, 40-18-21.
CONSIDERED: N.D.C.C. §§ 27-05-22, 29-15-21, 33-03-11.
CROSS REFERENCE: N.D. Sup. Ct. Admin. R. 6 (Judicial Districts); N.D. Sup. Ct. Admin. R. 7 (Designation of Judgeships and Chambers with Assignments).