State v. Torkelsen
, 2008 ND 141,
Any evidence obtained as a result of illegally acquired evidence must be suppressed, unless it was not produced by exploiting the illegally acquired information.
In some cases voluntary consent to search may purge the taint of unlawful police activity.
There must be separate probable cause to issue a warrant that authorizes a nighttime search. If there is not separate probable cause to authorize a nighttime search, the evidence should be excluded unless an exception to the exclusionary rule
applies.
A defendant must unequivocally invoke the right to represent himself, unless his conduct rises to the level of a functional equivalent of a voluntary waiver of the right to counsel.
A defendant must make a timely request to represent himself, and it is within the trial court's discretion to grant a request made after the trial begins.
State v. Rivet
, 2008 ND 145,
Prosecutor's use of a defendant's post-arrest silence after receiving Miranda warnings to impeach a defendant's exculpatory story, told for the first time at trial, violates the defendant's right to due process.
Although the right to remain silent is a personal constitutional right, under these circumstances, the violation of defendant's right to remain silent so impacted co-defendant's right to a fair trial as to necessitate a reversal of the co-defendant's
judgment as well.
State v. Coppage
, 2008 ND 134,
A motion for a new trial not based on newly discovered evidence must be filed within ten days of the verdict under N.D.R.Crim.P. 33.
A jury verdict convicting a defendant of both attempted murder and aggravated assault is not legally inconsistent.
Aggravated assault is not a lesser-included offense of attempted murder, except under subsection 4 of section 12.1-17-02, N.D.C.C.
Unchallenged jury instructions become the law of the case.
A criminal defendant's actions need not result in a potentially fatal injury in order for the defendant to be convicted of attempted murder under N.D.C.C. 12.1-16-01(1)(b).
State v. Newman
, 2007 ND 148,
738 N.W.2d 887
Persons accused of crimes have a constitutional right to a trial by an impartial jury.
An appellate court will not set aside a verdict merely on a whimsy or fanciful notion that prejudicial misconduct occurred.
A defendant on a criminal charge has a constitutional right to be present in the courtroom at every stage of the trial, but the right is not absolute and can be waived by the defendant.
State v. Gaede
, 2007 ND 125,
736 N.W.2d 418
A defendant may not be convicted upon the testimony of an accomplice unless the accomplice's testimony is corroborated by other evidence tending to connect the defendant with the commission of the crime.
Testimony or argument about a defendant's post-arrest silence may constitute an improper comment about the defendant's invocation of the right to remain silent.
Evidence of prior bad acts or convictions is not admissible to prove a defendant's character in order to show action in conformity therewith, but may be admissible for other purposes, such as motive, intent, preparation, or plan.
Prior-bad-act evidence may be admissible to provide a more complete story of a crime by putting the crime in context of happenings near in time and place.
State v. Frohlich
, 2007 ND 45,
729 N.W.2d 148
Motions for continuance will be granted only for good cause shown, either by affidavit or otherwise.
The denial of a continuance will be reversed only if it is an abuse of discretion.
When a continuance is sought to retain or replace counsel, the right to select counsel must be carefully balanced against the public's interest in the orderly administration of justice. In exercising its discretion, the district court may consider
the time required for trial preparation and the diligence of the moving party.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or needless presentation of cumulative evidence.
Cumulative evidence is additional evidence of the same character as existing evidence and that supports a fact established by the existing evidence.
State v. Streeper
, 2007 ND 25,
727 N.W.2d 759
When a person puts another in danger, such as by unlawfully injecting her with drugs, and then does nothing to aid her in the resulting medical crisis, the failure to take appropriate action may be considered as a continuation of criminal
conduct.
The use and admission of photographs in criminal trials is largely within the discretion of the district court.
A statement of a criminal defendant is admissible even though the defendant intended it to be exculpatory when made.
In controlling the scope of closing argument, the district court is vested with discretion, and absent a clear showing of an abuse of discretion, the conviction will not be reversed on grounds the prosecutor exceeded the scope of permissible closing
argument.
State v. Jacob
, 2006 ND 246,
724 N.W.2d 118
For negligent homicide, a person must act negligently, causing death. For leaving the scene involving death, a person need only negligently leave an accident scene and fail to render aid where a death occurred.
It is legally and factually possible for a jury to find a person not guilty beyond a reasonable doubt of negligent homicide and guilty beyond a reasonable doubt of leaving the scene of an accident involving death.
State v. Schmidkunz
, 2006 ND 192,
721 N.W.2d 387
In controlling the scope of closing argument, the district court is vested with discretion, and absent a clear showing of an abuse of discretion, we will not reverse on grounds the prosecutor exceeded the scope of permissible closing argument.
Unless the error is fundamental, a defendant must demonstrate a prosecutor's comments during closing argument were improper and prejudicial.
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
The district court has broad discretion over the conduct of a trial, including scheduling the time for jury deliberations. The court must exercise its discretion in a manner that best comports with substantial justice.
State v. Iverson
, 2006 ND 193,
721 N.W.2d 396
A statute authorizing credit for time served in custody cannot be retroactively applied after a person has been finally convicted.
State v. Torkelsen
, 2006 ND 152,
718 N.W.2d 22
The mere presence at or near the scene of a crime, without more, does not give rise to a reasonable suspicion of criminal activity.
State v. Charette
, 2004 ND 187,
687 N.W.2d 484
Circumstantial evidence can, without more, be sufficient to warrant a conviction, assuming the circumstantial evidence is of such probative force to enable the trier of fact to find the defendant guilty beyond a reasonable doubt.
The existence of conflicting evidence does not prohibit a jury from finding a defendant guilty beyond a reasonable doubt.
The decision to admit or exclude demonstrative evidence is subject to abuse-of-discretion review.
A trial court does not abuse its discretion when it refuses to allow defendant to try on clothing evidence found at a murder scene when defendant has gained weight since the date of the murder.
Rule 16, N.D.R.Crim.P., specifically addresses discovery of formal, recorded statements, and the State does not violate this rule if it fails to disclose a witness's informal, pre-trial statements.
State v. Klose
, 2003 ND 39,
657 N.W.2d 276
After an insanity defense is raised by the defendant, the State must prove beyond a reasonable doubt that the defendant was sane at the actual moment of the offense.
A verdict is not inconsistent when it is permissible under the law and facts of the case.
Photographs in a homicide trial can be admitted into evidence under appropriate circumstance even if they tend to excite the emotions of the jury.
A defendant may waive the right to have a jury's question answered in open court.
State v. Jahner
, 2003 ND 36,
657 N.W.2d 266
Failure to raise an appropriate objection in the trial court waives the right, and the issue cannot be raised for the first time on appeal. Waiver applies to all rights and privileges to which a person is legally entitled when they are for the
benefit of and rest in the individual who waived them.
A trial court is neither required to nor prohibited from instructing the jury on proof beyond a reasonable doubt.
Strict standards of logical consistency need not be applied to jury verdicts in criminal cases. The standard for reconciling a jury verdict is whether the verdict is legally inconsistent.
State v. Bingaman
, 2002 ND 202,
655 N.W.2d 51
To prove obvious error, a party must show (1) error, (2) which is plain, and (3) that affects substantial rights.
State v. Helmenstein
, 2000 ND 223,
620 N.W.2d 581
Voluntariness of a confession is determined by the totality of the circumstances, focusing on the characteristics and condition of the accused at the time of the confession, as well as the details of the setting in which the confession was
obtained.
Miranda warnings are required when a person is in custody and is interrogated. Custody is a mixed question of law and fact and is fully reviewable on appeal.
The requirement of bringing a person before a magistrate without unnecessary delay is a factor to consider in evaluating the voluntariness of a confession. Unnecessary delay depends upon the circumstances of each case.
A change of venue rests in the sound discretion of the trial court and will not be reversed absent an abuse of discretion. A defendant challenging a denial of a change of venue must establish prejudice or establish that a fair and impartial jury
could not be empaneled.
State v. Erickstad )
, 2000 ND 202,
620 N.W.2d 136
A defendant seeking a change of venue for adverse pretrial publicity must demonstrate a reasonable likelihood of prejudice so pervasive that it is impossible to impanel a fair and impartial jury.
When a party fails to object to a proposed instruction, fails to specifically request an instruction, or fails to object to omission of an instruction, the issue is not adequately preserved for appellate review and inquiry is limited to whether the
jury instructions as given constitute obvious error.
Evidence of value of a vehicle from the Kelley Blue Book Internet website may be admissible under the market report or commercial publication hearsay exception, N.D.R.Ev. 803(17).
State v. Bell
, 2000 ND 58,
608 N.W.2d 232
A criminal defendant who escapes after appealing forfeits and abandons the appeal.
State v. Burke
, 2000 ND 25,
606 N.W.2d 108
If no evidence indicates the DNA testing methods used were unreliable and the defendant admits the proposition for which the DNA evidence was offered, admission of the DNA evidence is not obvious error.
A prosecutor's fair and reasonable criticism of the evidence, and fair and reasonable argument, are not misconduct.
A defendant alleging ineffective assistance of counsel bears a heavy burden and must show counsel's representation fell below an objective standard of reasonableness and the defendant was prejudiced by counsel's deficient performance.
State v. Gagnon
, 1999 ND 13,
589 N.W.2d 560
For use of former testimony at trial, inquiry as to the unavailability of a witness is whether the State has made a good-faith effort to locate the witness.
A defendant who has raised self-defense may introduce evidence of the victim's violent or aggressive character.
Generally, character may be proved by reputation or opinion testimony only. N.D.R.Ev. Rule 405 allows character to be proved by specific instances of conduct when character is in direct issue, or when used on cross-examination to rebut an assertion
concerning a person's character.
When a defendant has prior knowledge of specific instances of a victim's violent or aggressive behavior, evidence of such specific instances may be offered to justify the defendant's actions or show the defendant's state of mind.
State v. Greybull
, 1998 ND 102,
579 N.W.2d 161
To invoke her constitutional rights during a police
interrogation, a suspect must
make an unambiguous request for an attorney or to remain silent.
Police are not required to stop and clarify ambiguous requests.
The trial court is not required to inform a defendant, found to
be a special
dangerous offender, of the parole consequences of NDCC
12.1-32-09.1.
State v. Olander
, 1998 ND 50,
575 N.W.2d 658
The trial court's failure to instruct the jury that the State had
the burden of proving beyond a reasonable doubt the accused did
not act in self-defense was obvious error.
State v. Magnuson
, 1997 ND 228,
571 N.W.2d 642
If a defendant's competency to plead guilty is not contested, a
competency hearing is not necessary and the defendant's voluntary
guilty plea waives his right to assert the defense of lack of
criminal responsibility for the crime.
A trial court does not abuse its discretion in refusing to accept
the State's sentencing recommendation and imposing a harsher
sentence on the defendant within the permissible sentencing
range.
State v. Clark
, 1997 ND 199,
570 N.W.2d 195
Under Rule 606(b), N.D.R.Ev., it is improper for a court to
consider juror affidavits about the mental processes or reasoning
of the jurors in arriving at a decision. The fact a shooting
was intentional does not preclude a verdict of manslaughter if
the shooting resulted from an unreasonable belief in the
necessity of using force. There is a right to privacy inherent
in the right to consult with counsel. A spouse seeking to
assert the husband-wife privilege of Rule 504, N.D.R.Ev., must
have acted in reliance upon an expectancy of confidentiality that
is reasonable under all the circumstances. Rule 504,
N.D.R.Ev., does not preclude the admission of a spouse's
statements to another about an allegedly confidential
communication between an accused and his or her spouse. To
prevail on a motion for a new trial on the ground of newly
discovered evidence, the defendant must show the weight and
quality of the newly discovered evidence would likely result in
an acquittal. A social worker, who is not a psychologist and
not licensed or believed by the defendant to be licensed to
practice medicine, is not a psychotherapist whose testimony the
defendant could exclude under Rule 503, N.D.R.Ev.
State v. Gagnon
, 1997 ND 153,
567 N.W.2d 807
A defendant is entitled to a jury instruction on a legal defense
if there is evidence to support it.
A trial court must instruct the jury on negligent homicide when
the defendant asserts he acted in self-defense, a self-defense
instruction is supported by the evidence, and a manslaughter
instruction is given and supported by the evidence.
The trial court's self-defense instruction should have informed
the jury the defendant's use of force in self-defense was
justified if he correctly believed the force he used was
necessary to prevent imminent unlawful bodily injury.
State v. Sisson
, 1997 ND 158,
567 N.W.2d 839
Authorization of public funds for expert assistance for an
indigent defendant at sentencing lies within the discretion of
the trial court. A defendant seeking expert assistance at
sentencing must show a particularized need for the assistance.
A defendant who pleads guilty may not argue at sentencing that he
actually committed, and should be sentenced for, a lesser crime.
A plea of guilty waives all nonjurisdictional defects and
defenses, admits all facts of the crime, and is itself a
conviction.
State v. Garcia
, 1997 ND 60,
561 N.W.2d 599
The defendant's right to a public trial was not violated when the
trial court temporarily terminated expanded media coverage and
partially closed the trial during the testimony of a 15 year-old
accomplice who was reluctant to testify.
Sufficient evidence corroborated the accomplice's testimony.
The defendant was not denied his due process right to a fair
trial when the State charged him with a street-gang crime and
voluntarily dismissed the charge after its case-in-chief.
The juvenile defendant's sentence to life imprisonment without
parole is not cruel and unusual punishment within the meaning of
the Eighth Amendment.
The Eighth and Fourteenth Amendments placed no constitutional
duty upon the trial court to affirmatively seek out mitigating
circumstances before sentencing the defendant to life
imprisonment without parole when the defendant himself did not
offer any mitigating circumstances.
State v. Kunkel
,
548 N.W.2d 773 (N.D. 1996)
State v. Trieb
,
533 N.W.2d 678 (N.D. 1995)
State v. Breding
,
526 N.W.2d 465 (N.D. 1995)
State v. Ash
,
526 N.W.2d 473 (N.D. 1995)
State v. Lefthand
,
523 N.W.2d 63 (N.D. 1994)
State v. Austin
,
520 N.W.2d 564 (N.D. 1994)
State v. Trieb
,
516 N.W.2d 287 (N.D. 1994)
State v. Thiel
,
515 N.W.2d 186 (N.D. 1994)
State v. Norman
,
507 N.W.2d 522 (N.D. 1993)
State v. VanNatta
,
506 N.W.2d 63 (N.D. 1993)
State v. Robideaux
,
493 N.W.2d 210 (N.D. 1992)
State v. Tweed
,
491 N.W.2d 412 (N.D. 1992)
State v. Robideaux
,
475 N.W.2d 915 (N.D. 1991)
State v. Taillon
,
470 N.W.2d 226 (N.D. 1991)
State v. Garcia
,
462 N.W.2d 123 (N.D. 1990)
State v. Wiedrich
,
460 N.W.2d 680 (N.D. 1990)
State v. Ellvanger
,
453 N.W.2d 810 (N.D. 1990)
State v. Pickar
,
453 N.W.2d 783 (N.D. 1990)
State v. Schumacher
,
452 N.W.2d 345 (N.D. 1990)
State v. Kelley
,
450 N.W.2d 729 (N.D. 1990)
State v. Frey
,
441 N.W.2d 668 (N.D. 1989)
State v. Tranby
,
437 N.W.2d 817 (N.D. 1989)
State v. Garcia
,
425 N.W.2d 918 (N.D. 1988)
State v. Packineau
,
423 N.W.2d 148 (N.D. 1988)
State v. Newnam
,
409 N.W.2d 79 (N.D. 1987)
State v. White
,
390 N.W.2d 43 (N.D. 1986)
State v. Olson
,
379 N.W.2d 801 (N.D. 1986)
State v. Olson
,
372 N.W.2d 901 (N.D. 1985)
State v. Schlickenmayer
,
364 N.W.2d 108 (N.D. 1985)
State v. Huber
,
361 N.W.2d 236 (N.D. 1985)
State v. Ohnstad
,
359 N.W.2d 827 (N.D. 1984)
State v. Anderson
,
353 N.W.2d 324 (N.D. 1984)
State v. Halvorson
,
346 N.W.2d 704 (N.D. 1984)
State v. Jungling
,
340 N.W.2d 681 (N.D. 1983)
State v. Dilger
,
338 N.W.2d 87 (N.D. 1983)
State v. Anderson
,
336 N.W.2d 634 (N.D. 1983)
State v. Leidholm
,
334 N.W.2d 811 (N.D. 1983)
State v. Schlickenmayer
,
334 N.W.2d 196 (N.D. 1983)
State v. Bergeron
,
340 N.W.2d 51 (N.D. 1983)
State v. Bergeron
,
334 N.W.2d 12 (N.D. 1983)
State v. Jensen
,
333 N.W.2d 686 (N.D. 1983)
State v. Dilger
,
322 N.W.2d 461 (N.D. 1982)
State v. Skjonsby
,
319 N.W.2d 764 (N.D. 1982)
State v. Trieb
,
315 N.W.2d 649 (N.D. 1982)
State v. Red Paint
,
311 N.W.2d 182 (N.D. 1981)
State v. Helgeson
,
303 N.W.2d 342 (N.D. 1981)
State v. Granrud
,
301 N.W.2d 398 (N.D. 1981)
State v. Olson
,
290 N.W.2d 664 (N.D. 1980)
State v. Olson
,
285 N.W.2d 575 (N.D. 1979)
State v. Jensen
,
282 N.W.2d 55 (N.D. 1979)
State v. Wells
,
276 N.W.2d 679 (N.D. 1979)
State v. Olson
,
274 N.W.2d 190 (N.D. 1978)
State v. Wells
,
265 N.W.2d 239 (N.D. 1978)
State v. Ternes
,
259 N.W.2d 296 (N.D. 1977)
State v. Carmody
,
253 N.W.2d 415 (N.D. 1977)
State v. Erickson
,
241 N.W.2d 854 (N.D. 1976)
State v. Jensen
,
251 N.W.2d 182 (N.D. 1976)
State v. Jensen
,
241 N.W.2d 557 (N.D. 1976)
State v. Stevens
,
238 N.W.2d 251 (N.D. 1975)
State v. Holy Bull
,
238 N.W.2d 52 (N.D. 1975)
State v. Stevens
,
234 N.W.2d 623 (N.D. 1975)
State v. Fischer
,
231 N.W.2d 147 (N.D. 1975)
State v. Hagge
,
224 N.W.2d 560 (N.D. 1974)
State v. Haakenson
,
213 N.W.2d 394 (N.D. 1973)
State v. Steele
,
211 N.W.2d 855 (N.D. 1973)
State v. Hagge
,
211 N.W.2d 395 (N.D. 1973)
State v. Champagne
,
198 N.W.2d 218 (N.D. 1972)
State v. Iverson
,
187 N.W.2d 1 (N.D. 1971)
State v. Gill
,
154 N.W.2d 791 (N.D. 1967)