Joint Procedure Committee Meeting
Scheduled on Thursday, December 7, 1978 @ 1:00 PM
MINUTES OF MEETING
Joint Committee of the Judicial Council
and the State Bar Association
Joint Procedure Committee
December 7-8, 1978
CALL TO ORDER
The meeting was called to order at 1:00 p.m., December 7, 1978, by Justice Paul M. Sand, Chairman.
ATTENDANCE
Present:
Hon. Eugene A. Burdick
Mr. Leonard L. Bucklin
Hon. Gerald G. Glaser
Mr. Ward M. Kirby
Mr. Larry Kraft
Mr. Richard A. McKennett
Hon. William S. Murray
Mr. David L. Peterson
Hon. Robert Vogel
Absent:
Hon. Halvor L. Halvorson
Hon. Larry Hatch
Hon. Robert C. Heinley
Mr. James L. Lamb
Mr. LeRoy A. Loder
Mr. Herbert L. Meschke
Mr. Russell G. Nerison
Hon. James H. O'Keefe
Mr. Calvin N. Rolfson
Hon. Kirk Smith
Staff Present:
Keith C. Magnusson
Eveleen Klaudt
CONTEMPT
Judge Glaser MOVED that the staff undertake to draft a bill containing all the provisions of the rule dealing with criminal contempt and defining contempt, for enactment by the Legislature, and that we undertake to draft a rule for adoption defining civil contempt and the procedures to be followed, for the 1981 session. The staff attorney is to report to the committee. Judge Vogel seconded the motion. Motion CARRIED.
Sections 27-10-07 and 27-10-13, NDCC
Judge Burdick MOVED to delete subdivision (2) of § 27-10-07. Mr. Bucklin seconded the motion. Motion CARRIED.
Judge Burdick MOVED to attempt to re-draft § 27-10-07 and § 27-10-13 to eliminate reference to criminal contempt
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and warrants of attachment, and to require the affidavit for the order to show cause to be served with the order to show cause, and affording the alleged contemnor and the court or the moving party to offer additional affidavits or other evidence at the hearing and permitting the court or either party to subpoena the alleged contemnor. Mr. Bucklin seconded the motion. Motion CARRIED.
UNIFORM AUDIO-VISUAL DEPOSITIONS RULE
Mr. Bucklin MOVED that a new rule on audio-visual depositions be drafted and placed on the agenda for the next meeting. Judge Vogel seconded the motion. Motion CARRIED.
NEXT MEETING
The next meeting of the Joint Procedure Committee will be held on Thursday and Friday, January 25 and 26, commencing at 1:00 p.m. on January 25, 1979.
RECESS
Judge Burdick MOVED that the committee recess to 9:00 a.m. on December 8. Judge Murray seconded the motion. Motion CARRIED.
CALL TO ORDER
The meeting was called to order at 9:00 a.m., Friday, December 8, 1978, by Justice Paul M. Sand, Chairman.
ATTENDANCE:
Present:
Hon. Eugene A. Burdick
Mr. Leonard L. Bucklin
Mr. Ward M. Kirby
Mr. Larry Kraft
Mr. Richard A. McKennett
Hon. William S. Murray
Mr. David L. Peterson
Mr. Calvin N. Rolfson
Hon. Robert Vogel
Absent:
Hon. Gerald G. Glaser
Hon. Halvor L. Halvorson
Hon. Larry Hatch
Hon. Robert C. Heinley
Mr. James L. Lamb
Mr. LeRoy A. Loder
Mr. Herbert L. Meschke
Mr. Russell G. Nerison
Hon. James H. O'Keefe
Hon. Kirk Smith
SECTION 27-10-07, NDCC
Judge Burdick MOVED that the Legislature be requested to amend § 27-10-07, NDCC, to read as follows:
When an act constituting a civil contempt of a court of record in this state is not committed in the immediate view and presence of the court, the court, upon being satisfied by affidavit
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setting forth the essential facts constituting the alleged contemptuous conduct, shall make an order requiring the accused to show cause at a time and place therein specified why he should not be held in contempt for the alleged conduct. A copy of the order and affidavit must be served personally upon the alleged contemnor.
Mr. Kirby seconded the motion. Motion CARRIED.
SECTION 27-10-13, NDCC
Mr. Kraft MOVED that the staff be instructed to pursue the necessary research and study the feasibility of drafting a rule of procedure that might cover the civil contempt proceedings, and also study chapter 12.1, NDCC, to see if it covers the situation as to criminal contempt, and draft appropriate amendments to chapter 12.1 and appropriate civil rules. Mr. Peterson seconded the motion. Motion CARRIED.
Mr. Bucklin MOVED to adopt a resolution covering the following points:
(1) The committee, on studying the contempt statutes, has found a number of problems.
(2) The problems cannot easily be resolved and cast into legislative form before the time for introduction of legislative bills has expired.
(3) It appears preferable to have rules regarding civil contempt found in the civil rules rather than found in the statutes.
(4) That the immediate problem brought to our attention by Judge Hodny and Judge Muggli may be temporarily taken care of by reference to the docket found in the case of Raszler v. Raszler, 80 N.W.2d 535.
Judge Burdick seconded the motion. Motion CARRIED.
RULE 12, NDRCrimP - Explanatory Note
Mr. Rolfson MOVED to amend the proposed new language of the explanatory note as follows: Delete the words "The proposed", delete the word "modified", and insert "amended effective ____________", and when so amended to adopt the explanatory note. Mr. Peterson seconded the motion. Motion CARRIED.
Rule 12 is an adaptation of Rule 12, F.R.Crim.P., and the Proposed Amendments thereto [48 F.R.D. 578 (1970)], and deals with the raising of defenses and objections prior to trial. The exceptions to the
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Federal Rule reflect the use of the complaint as a pleading in the county court with increased jurisdiction, county justice court, and municipal court.
Subdivision (a) provides that the only pleadings in criminal proceedings are the indictment or information in the district court; the complaint in the county court with increased jurisdiction, county justice court, and municipal court; and pleas of guilty and not guilty. This Rule expressly abolishes all other pleas and abolishes demurrers and motions to quash.
The Notes of Advisory Committee on Rules, note to Rule 12(a) [18 U.S.C.A., Federal Rules of Criminal Procedure, p. 607], state:
"This rule abolishes pleas to the jurisdiction, pleas in abatement, demurrers, special pleas in bar, and motions to quash. A motion to dismiss or for other appropriate relief is substituted for the purpose of raising all defenses and objections heretofore interposed in any of the foregoing modes. 'This should result in a reduction of opportunities for dilatory tactics and, at the same time, relieve the defense of embarrassment. Many competent practitioners have been baffled and mystified by the distinctions between pleas in abatement, pleas in bar, demurrers, and motions to quash, and have, at times, found difficulty in determining which of these should be invoked' Homer Cummings, 29 A.B.A. Jour. 655, See also Medalie, 4 Lawyers Guild R. (3) 1, 4.
"A similar change was introduced by the Federal Rules of Civil Procedure [Rule 7(a)] which has proven successful. It is also proposed by the A.L.I. Code of Criminal Procedure (Sec. 209)."
All objections or defenses raised before trial must be made by a simple motion to dismiss or by motion to grant appropriate relief as provided in these Rules. Subdivision (a) speaks only of defenses and objections that prior to the Rules could have been raised by plea, demurrer, or motion to quash.
Selection of a wrong plea will no longer be a hazard, since there is now but one mode of raising all objections and defenses. Even if counsel, unaware of procedural changes, ignorantly interposes an obsolete plea or motion, it may be considered as a motion to dismiss.
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Subdivision (b) provides that any defense or objection that is capable of determination without trial of the general issue may be raised by motion before trial, but a defendant has no standing to attack a count in an indictment, information, or complaint in which he is not charged with the commission of an offense. Subdivision (b) further provides that certain motions must be made prior to trial.
The Advisory Committee Note [48 F.R.D. 382 (1970)] for the proposed amendments to the Federal Rules provides as follows:
"Subdivisions (b)(1) and (2) are restatements of the current rule.
"Subdivision (b)(3) makes clear that objections to evidence on the ground that it was illegally obtained must be raised prior to trial. This is the current rule with regard to evidence obtained as a result of an illegal search. *** It is also the practice with regard to other forms of illegality such as the use of unconstitutional means to obtain a confession. See C. Wright, Federal Practice and Procedure: Criminal, § 673 at p. 108 (1969). It seems appropriate that the same principle should apply whatever the claimed basis for the application of the exclusionary rule of evidence may be. This is consistent with the court's statement in Jones v. United States, 362 U.S. 257, 264 (1960):
'This provision of Rule 41(e) requiring the motion to suppress to be made before trial, is a crystallization of decisions of this Court requiring that procedure, and is designed to eliminate from the trial disputes over police conduct not immediately relevant to the question of guilt.'
"Subdivision (b)(4) provides for a pretrial request for discovery by either the defendant or the government to the extent to which such discovery is authorized by rule 16.
"Subdivision (b)(5) provides for a pretrial request for a severance as authorized in rule 14.
"Subdivision (c) provides that a time for the making of motions shall be fixed at the time of the arraignment or as soon thereafter as practicable
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by court rule or direction of a judge. The rule leaves to the individual judge whether the motions may be oral or written. This and other amendments to rule 12 are designed to make possible and to encourage the making of motions prior to trial, whenever possible, and in a single hearing rather than in a series of hearings. This is the recommendation of the American Bar Association's Committee on Standards Relating to Discovery and Procedure Before Trial (1969). ***
"There is a similar trend in state practice. See, e.g., State ex rel. Goodchild v. Burke, 27 Wis.2d 244, 133 N.W.2d 753 (1965); State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 141, N.W.2d 3 (1965).
"The rule provides that the motion date be set at 'the arraignment or as soon thereafter as practicable.' This is the practice in some federal courts including those using the omnibus hearing. * * * The rule further provides that the date may be set before the arraignment if local rules of court so provide.
"Subdivision (d) provides a mechanism for insuring that a defendant knows of the government's intention to use evidence to which the defendant may want to object. On some occasions the resolution of the admissibility issue prior to trial may be advantageous to the government. In these situations the attorney for the government can make effective defendant's obligation to make his motion to suppress prior to trial by giving defendant notice of the government's intention to use certain evidence." See United States v. Desist, 384 F.2d 889, 897 (2d Cir. 1967).
"In cases in which defendant wishes to know what types of evidence the government intends to use so that he can make his motion to suppress prior to trial, he can request the government to give notice if it intends to use specified evidence to which the defendant is entitled to discovery under rule 16.
"Although the defendant is already entitled to discovery of such evidence prior to trial under proposed rule 16, proposed rule 12 makes it possible for him to avoid the necessity of moving to suppress evidence which the government does not intend to use.
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No sanction is provided for the government's failure to comply with the court's order because the committee believes that attorneys for the government will in fact comply and that judges have ways of insuring compliance. An automatic exclusion of such evidence, particularly where the failure to give notice was not deliberate, seems to create too heavy a burden upon the exclusionary rule of evidence, especially when defendant has opportunity for broad discovery under proposed rule 16. Compare ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Electronic Surveillance (1968) at page 116:
'A failure to comply with the duty of giving notice could lead to the suppression of evidence. Nevertheless, the standards make it explicit that the rule is intended to be a matter of procedure which need not under appropriate circumstances automatically dictate that evidence otherwise admissible be suppressed.'
"Pretrial notice by the prosecution of its intention to use evidence which may be subject to a motion to suppress is increasingly being encouraged in state practice. See, e.g., State ex rel. Goodchild v. Burke, 27 Wis.2d 244, 264, 133 N.W.2d 753, 763 (1965). *** See also State ex rel. Rasmussen v. Tahash, 272 Minn. 536, 553-556, 141 N.W.2d 3, 13-15 (1965). ***
"Subdivision (e) provides that the court shall rule on a pretrial motion before trial unless the court orders that it be decided upon at the trial of the general issue or after verdict. This is the current rule. The reference of issues which must be tried by the jury is dropped as unnecessary, without any intention of changing current law or practice. The current rule begs the question of when a jury decision is required, providing only that a jury is necessary if 'required by the Constitution or an act of Congress.' The issue has apparently only been raised once in a reported case. See C. Wright Federal Practice and Procedure: Criminal, § 192 at p. 414 n.p. 85 (1969)."
Subdivision (e) was amended, effective _______________, to require the existence of "good cause" to defer ruling on the motion, with the intent of discouraging the tendency to reserve ruling on pretrial motions. Moreover, the court cannot defer its ruling if to do so will adversely affect a party's right to appeal. This will protect certain prosecution appeals rights which could be deprived by a deferred ruling.
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The Advisory Committee note continues:
"Subdivision (f) provides that a failure to raise the objections or make the requests specified in subdivision (b) constitutes a waiver thereof, but the court is allowed to grant relief from the waiver if adequate cause is shown. See C. Wright, Federal Practice and Procedure: Criminal, § 192 (1969), where it is pointed out that the current rule is unclear as to whether the waiver results only from a failure to raise the issue prior to trial or from the failure to do so at the time fixed by the judge for a hearing. The amendment makes clear that the defendant has an obligation to raise the issue at the motion date set by the judge pursuant to subdivision (c).
"Subdivision (g) requires that a verbatim record be made of pretrial motion proceedings and requires the judge to make a record of his findings of fact and conclusions of law. This is desirable if pretrial rulings are to be subject to post-conviction review on the record. The judge may find and rule orally from the bench, so long as a verbatim record is taken. There is no necessity of a separate written memorandum containing the judge's findings and conclusions. The rule does not specify whether statements made by the defendant at a pretrial motion proceeding are admissible against him at the trial. Simmons v. United States, 390 U.S. 377 (1968), apparently prohibits the use of a pretrial admission at trial if the defendant's statement was made for the purpose of raising a constitutional issue prior to trial, such as the legality of a search and seizure. The rule leaves to case law the question of admissibility of defendants' statements of such character.
"Subdivision (h) is essentially present rule 12(b)(5) except for the deletion of the provision that defendant may plead if the motion is determined adversely to him or, if he has already entered a plea, that that plea stands. The language seems unnecessary particularly in light of the experience in some district courts where a pro forma plea of not guilty is entered at the arraignment, pretrial motions are later made, and depending upon the outcome the defendant may then change his plea to guilty or persist in his plea of not guilty."
The deletion of the sentence "This rule does not affect the provisions of any statute relating to periods of limitations," from Subdivision (h) is primarily because North Dakota does not have statutes comparable to the Federal statutes. [See also: 90 A.L.R. 452, 456.]
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RULE 16, NDRCrimP - Explanatory Note
Judge Burdick MOVED to adopt the proposed explanatory note to Rule 16, NDRCrimP, and to add a reference to State v. Hilling and State v. Hager. The note is also to indicate the effective date of the amendments adopted. Mr. Peterson seconded the motion. Motion CARRIED.
Rule 16 is an adaptation of Rule 16, F.R.Crim.P., and incorporates the provisions of the Jencks Act [18 U.S.C.A. § 3500]. Prior to the adoption of this Rule, discovery proceeded on an informal basis. The only requirement placed upon the prosecutor was the constitutional imperative that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to the guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 104, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215 (1963).
Material discoverable by the defense under the Rule is described in the first two Subdivisions. The court, under Subdivision (a), is authorized to order the prosecuting attorney to permit the defendant to inspect and copy or photograph three different types of evidentiary material: (1) relevant written or recorded statements or confessions made by the defendant, or copies thereof; (2) the substance of any oral statement made by the defendant in response to interrogation which the prosecutor intends to offer [effective _______________]; (3) the results or reports of physical or mental examinations and of scientific tests or experiments (including fingerprint and handwriting comparisons) made in connection with a particular case, or copies thereof; and (4) relevant recorded testimony of the defendant before a grand jury concerning the offense charged. If the motion is granted, the defendant is entitled to the specified items "within the possession, custody, or control of the government, the existence of which is known or by the exercise of due diligence may become known to the prosecuting attorney." To obtain discovery under Subdivision (a) the defendant must show that the above-sought items are "relevant," in contrast to the showing of materiality and reasonableness necessary under Subdivision (c).
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A general motion, substantially in the language of the Rule, is sufficient to place upon the prosecuting attorney the burden of producing the relevant materials of which he has knowledge, or could in the exercise of due diligence obtain knowledge. [United States v. Lewis, 266 F.Supp. 897, 898 (D.N.Y. 1967).]
Subdivision (b) [effective ______________], permits a defendant organization to discover relevant grand jury testimony by a former officer or employee, not in every instance, but in those situations set forth. In a situation involving a corporate defendant, statements made by present and former officers and employees relating to their employment have been held discoverable as statements of the defendant. United States v. Hughes, 413 F.2d 1244 (5th Cir. 1969). Considerations of fairness require that a defendant corporation or other legal entity be entitled to the grand jury testimony of a former officer or employee in these situations.
Subdivision (f) permits the court upon a sufficient showing to order that discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. In determining whether to make such protective order the court will take into consideration such matters as the safety of the witnesses and others, a particular danger of perjury or witness intimidation, protection of information vital to the national security, and the protection of business enterprises from economic reprisals. The burden is upon the moving party to make sufficient showing for the denial, restriction, or deferment of discovery.
Subdivision (h) imposes a continuing obligation on a party who has already complied with a discovery order. The duty provided is to notify the other party, his attorney, or the court of the existence of material. A motion may then be made pursuant to the notification by the party receiving such notification for additional discovery and where the existence of the material is disclosed shortly before or during the trial for any necessary continuance.
Subdivision (h) also contains sanctions for failure to comply with Rule 16 or with an order made pursuant to it. Three specific
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alternatives are provided if it is brought to the attention of the court that a party has failed to comply with Rule 16 or with an order issued pursuant to the Rule. The court may (1) order the delinquent party to permit the discovery or inspection of materials not previously disclosed; (2) grant a continuance; or (3) prohibit the party from introducing evidentiary material not disclosed. In addition to these alternatives, the court has wide discretion to enter any other order "it deems just under the circumstances." The discretionary provision permits the court to consider the reasons why disclosure was not made, the extent of the prejudice, if any, to the opposing party, the feasibility of rectifying that prejudice by continuance, and any other relevant circumstances.
Subdivision (i) of this Rule is adopted from Title 18, U.S. Code, Section 3500, also known as the Jencks Act, which is based on the opinion handed down by the U.S. Supreme Court in the case of Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, l L.Ed.2d 1103 (1957). This bill was designed to preserve the rights of a defendant under due process of law and to make certain that the decision in the Jencks case is not misinterpreted by the courts, lawyers, or defendants as exposing government files in a manner which the Supreme Court, in Gordon v. United States, 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447 (1953), called "any broad or blind fishing expedition among documents possessed by the government on the chance that something impeaching might turn up." [1947 U.S. CCNA 1862.]
Under Subdivision (c) discoverable material includes "books, papers, documents, tangible objects." The burden upon the prosecution under this Subdivision merely refers to the production of items "within the possession, custody or control of the prosecution." A stricter burden upon the prosecution is not required here out, rather, the burden is upon the defense to show materiality to the preparation of the defense's case and that the request is reasonable. The Advisory Committee Note to the 1966 amendment or Rule 16(f) states in part:
"The requirement of reasonableness will permit the court to define and limit the scope of the government's obligation to search its file while meeting the legitimate needs of the defendant. The court is also authorized to limit discovery to portions of items sought."
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Subdivision (c) contains two important limitations to its otherwise broad discovery provisions. First, it is expressly provided that the discovery or inspection of statements made by prosecution witnesses or prospective witnesses to government agents is not authorized except as provided under
Subdivision (i) of this Rule. Secondly, the Rule does not authorize discovery or inspection of reports, memoranda, or other internal prosecution documents in connection with the investigation or prosecution of the case (the "work-product" of the prosecution).
Subdivision (d) provides for reciprocal discovery by the prosecution. The court has discretion, on motion of the prosecution, to grant discovery of evidence the defense intends to produce at trial. The constitutional question relative to violations of the privilege against self-incrimination is generally overcome by the language of Justice Traynor in Jones v. Superior Court, 58 Cal.2d 56, 372 P.2d 919, 22 Cal.Rptr. 879, 96 A.L.R. 1213, rehearing denied July 1962, in which the judge said that such discovery does not violate the privilege against self-incrimination since "it simply requires the petitioner to disclose information that he will shortly reveal anyway." By amendment effective _______________, there is no requirement that the prosecution show materiality and reasonableness, as the defense must under Subdivision (c). The exception or limitation of materials subject to discovery, relates to that which the defendant intends to produce in chief at trial. This limitation is the central argument in support of the constitutionality of this provision.
Another important limitation of discovery under Subdivision (d) is that the privilege is conditional upon the defendant have been granted relief under Subdivision (a)(2) or Subdivision (c) of this Rule. Thus if the defendant seeks no discovery the prosecution can have no discovery [see Wright, Federal Practice and Procedure: Criminal, § 255, p. 521].
Subdivision (e) simply provides that when the court grants discovery, it shall specify in the order, the time, place, and manner of making the discovery and inspection permitted, and may prescribe such terms and conditions as are just.
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It is the intention of this provision to provide only for the production of written statements previously made by a prosecution witness in the possession of the prosecution which are signed by him or otherwise adopted or approved by him, and any transcripts or records of oral statements made by the witness to a law enforcement officer, relating to the matter to which the witness has testified. This provision is not intended to be interpreted as a provision for the production of entire investigative files, grand jury testimony, or similar materials. Under this provision a defendant on trial in a criminal prosecution is entitled to relevant and confidential reports and statements in the possession of the prosecution, touching the events and activities as to which a prosecution witness has testified at the trial, but excluding such matter which is within any valid exclusionary rule. This provision is further intended to protect individual rights during criminal prosecutions and to protect confidential information in the possession of the prosecution.
Paragraphs (2) and (6) of Subdivision (i) read together expressly authorize production at the trial, or statements that are authenticated (either in writing and signed or otherwise adopted or approved by the witness or that are a substantially verbatim recital of an oral statement made by the witness to the prosecution). Paragraph (1) prohibits the inspection before trial of any statement or report by a prosecution witness to an agent of the prosecution. Since the definition in paragraph (5) expressly does not apply to paragraph (1), this prohibition against pretrial inspection applies to unsigned statements as well as to those which are signed.
It should be pointed out, however, that Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967), may require a production of statements of witnesses and potential witnesses at different times under different circumstances than are specified in the above Rule.
See, State v. Hilling, 219 N.W.2d 164 (N.D. 1974), and State v. Hager, 271 N.W.2d 476 (N.D. 1978), for discussion on Rule 16 by the North Dakota Supreme Court.
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RULE 20, NDRCrimP - Explanatory Note
Mr. Lamb MOVED to adopt the proposed explanatory note on Rule 20, NDRCrimP. Mr. McKennett seconded the motion. Motion CARRIED.
Rule 20 is an adaptation of Rule 20, F.R.Crim.P. It permits a defendant arrested, held, or present in a county other than that in which the indictment, information, or complaint is pending against him, to state in writing that he wishes to plead guilty, to waive trial in the county in which charges against him are pending and to consent to disposition of the case in the county in which he was arrested, is held, or is present, subject to the approval of the prosecuting attorney for each county. The Rule differs from existing practice in that it permits a defendant, charged in one county and held or present in another, to plead guilty in the county in which he was found. This procedure may be used between counties in the state, and is not limited to those counties in the same judicial district. The Rule benefits the defendant in that it permits a speedy disposition of his case, if he desires to plead guilty, without the hardship which may be involved in transferring him back to the county in which he was charged. This may be desirable for a defendant who is arrested or turns himself in at or near his residence for a crime committed elsewhere in the State. The benefit to the State is the savings in transportation expenses. The requirement that the prosecuting attorneys of both counties must consent to this action by the defendant provides the necessary safeguards for the State.
Subdivision (a) differs from its Federal counterpart in that it includes the complaint as a charging document, thus eliminating the need for a subdivision similar to (b) of the Federal Rule.
Subdivision (b) provides that a defendant is not obligated by his request for a transfer under Subdivision (a). If the defendant decides not to plead guilty, he shall be tried thereafter in the county in which the information was originally filed, on such information or on another information filed in term time, as the State's attorney may elect. However, the written statement may not be used against the defendant without his prior consent.
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The Advisory Committee's Notes to the original Federal Rule [18 J.S.C.A., F.R.Crim.P., Rule 20 at page 127] say in part:
"This rule introduces a new procedure in the interest of defendants who intend to plead guilty and are arrested in a district other than that in which the prosecution has been instituted. This rule would accord to a defendant in such a situation an opportunity to secure a disposition of the case in the district where the arrest takes place, thereby relieving him of whatever hardship may be involved in a removal to the place where the prosecution is pending. In order to prevent the possible interference with the administration of justice, however, the consent of the United States attorneys involved is required."
RULE 29.1, NDRCrimP
Judge Burdick MOVED to adopt the proposed wording in Rule 29.1, and the explanatory note. Mr. Kraft seconded the motion. Motion CARRIED.
RULE 29.1. Closing Argument.
[Reserved for future use.]
Explanatory Note
The Committee recommends that no rule be adopted pertaining to closing argument, as the subject is adequately covered by § 29-21-01 and § 29-21-02, N.D.C.C.
RULE 32, NDRCrimP
Judge Burdick MOVED to amend Rule 32, NDRCrimP, in subsection (f)(1), the word "discretion" be changed to "direction" and "defendant" be changed to "probationer," make other appropriate style changes, and when so amended to re-adopt Rule 32. Mr. Peterson seconded the motion. Motion CARRIED.
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RULE 32. Sentence and Judgment.
(a) Sentence.
(1) Imposition of Sentence.
Sentence shall be imposed or other authorized disposition made without unreasonable delay. Pending disposition the court may commit the defendant or continue or alter the bail. Before imposing sentence the court shall (a) afford counsel an opportunity to speak on behalf of the defendant, and (b) address the defendant personally, except as provided by Rule 43, to determine whether he wishes to make a statement in his own behalf of wishes to present any information in mitigation of punishment which would require the court to withhold pronouncement of judgment and sentence: if the defendant expresses a desire to do so, the court shall provide him with such opportunity. The prosecution shall be given an opportunity to be heard on any matter material to the imposition of sentence.
(2) Notification of Right to Appeal.
After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of his right to appeal and of the right of the person who is unable to pay the costs of an appeal to apply for appointment of counsel for purposes of appeal. The court is under no duty to advise the defendant of any right of appeal after sentence is imposed following a plea of guilty.
(b) Judgment.
A judgment of conviction must set forth the plea, the verdict, and the adjudication of sentence. If the defendant is found not guilty or for any other reason is entitled to be discharged, judgment shall be entered accordingly. The judgment shall be signed by the judge and entered by the clerk.
Presentence Investigation.
(1) When made.
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The court may order a presentence investigation and report at any time. The report shall not be submitted to the court or its contents disclosed unless the defendant has pleaded guilty, has been found guilty, or has consented.
(2) Report.
The report of the presentence investigation must contain any prior criminal record of the defendant and such information about his characteristics, his financial condition and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and any other information required by the court.
(3) Disclosure.
(i) Before imposing sentence the court shall permit the defendant, and his counsel if he is so represented, to read the report of the presentence investigation unless in the opinion of the court the report contains information which if disclosed would be harmful to the defendant or other persons; and the court shall afford the defendant or his counsel an opportunity to comment thereon and, at the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in the presentence report.
(ii) If the court is of the view that there is information in the presentence report, disclosure of which would be harmful to the defendant or to other persons, the court in lieu of making the report or part thereof available shall state orally or in writing a summary of the factual information contained therein to be relied on in determining sentence, and shall give the defendant or his counsel an opportunity to comment thereon. The statement may be made to the parties in camera.
(iii) Any material disclosed to the defendant or his counsel must also be disclosed to the prosecuting attorney.
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(iv) Any copies of the presentence investigation report made available to the defendant or his counsel and of the prosecuting attorney shall be returned to the court immediately following the imposition of sentence or the granting of probation. Copies of the presentence report shall not be made by the defendant, his counsel, or the prosecuting attorney, unless the court, in its discretion, otherwise directs.
(d) Plea Withdrawal.
(1) The court should allow the defendant to withdraw his plea of guilty whenever the defendant, upon a timely motion for withdrawal, proves that withdrawal is necessary to correct a manifest injustice.
(2) A motion for withdrawal is timely if made with due diligence, considering the nature of the allegations therein, and is not necessarily barred because made subsequent to judgment or sentence.
(3) In the absence of a showing that withdrawal is necessary to correct a manifest injustice, a defendant may not withdraw his plea of guilty as a matter of right once the plea has been accepted by the court. Before sentence, the court in its discretion may allow the defendant to withdraw his plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant's plea.
(e) Probation.
After conviction of an offense, the defendant may be placed on probation as provided by law.
(f) Revocation of Probation Where the Court Retains Jurisdiction Under the Law.
(1) Taking into Custody.
Upon probable cause to believe that a probationer has violated a condition of his probation, any State parole officer, or any peace officer upon direction of a State parole officer or upon direction or order of the court having jurisdiction may take the probationer into custody and thereafter shall forthwith bring him before the court which
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originally placed him upon probation for a hearing on the alleged violation. Costs incurred in bringing the probationer before the court shall be borne by the county wherein the probation was granted. The probationer may be admitted to bail pending the hearing.
(2) The hearing shall be in open court with:
(i) The probationer present,
(ii) A prior written notice of the alleged violation given to the probationer, and
(iii) Representation by retained or appointed counsel unless waived.
Where the violation is contested, the prosecution must establish the violation by a preponderance of the evidence. Upon the hearing, the court, subject to limitations imposed by law, may revoke an order suspending a sentence or an order deferring the imposition of sentence, or continue probation on the same or different conditions, as the circumstances warrant. A record of the proceedings shall be made and preserved in such a manner that it can be transcribed as needed.
RULE 32, NDRCrimP - Explanatory Note
Judge Burdick MOVED to amend the proposed language of the explanatory note to subsection (f)(1) to read, "The rule now makes clear that a probationer may be admitted to bail pending the hearing," and when so amended that the explanatory note, with other proposed amendments, be adopted. Mr. Lamb seconded the motion. Motion CARRIED.
Rule 32 is an adaptation of Rule 32, F.R.Crim.P., with certain modifications to reflect proposals in the A.B.A. Standards and Proposed Amendments to the Federal Rules. [48 F.R.D. 612 (1970), 52 F.R.D. 454 (1971).]
The provision in Subdivision (a)(1) which requires that there be no "unreasonable delay" in imposing sentence is dependent on the circumstances. The Rule makes it clear that the time for imposing sentence is not at the will of the court but rather must be "made without unreasonable delay." [See Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957). The court need not wait until the expiration of the period allowed for filing a motion for a
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new trial before imposing sentence. [See Wright, Federal Practice and Procedure, Federal Rules of Criminal Procedure, § 521, page 385 (1969).]
Subdivision (a)(1) requires that before sentence is imposed, counsel for the defendant be given an opportunity to speak on behalf of the defendant and that with certain exceptions provided in Rule 43, the defendant shall be addressed personally to determine whether or not he wishes to make a statement on his own behalf and present information either in mitigation of punishment or which would require the court to withhold pronouncement of judgment and sentence [Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670, rehearing denied, 365 U.S. 890, 81 S.Ct. 1024, 6 L.Ed.2d 201 (1961) and Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417, rehearing denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962).]
Finally, Subdivision (a)(1) provides the prosecution with the opportunity to be heard on any matter material to the imposition of the sentence. This language is adapted from the Colorado Rules of Criminal Procedure and has been a practice followed in Federal court [see Noell v. United States, 183 F.2d 334 (9th Cir. 1950), cert. denied, 340 U.S. 921, 71 S.Ct. 352, 95 L.Ed. 665 (151); also: King v. United States, 410 F.2d 1127 (9th Cir. 1969).]
Subdivision (a)(2) makes it clear that the court must advise the defendant of his right to appeal a verdict of guilty in a case that has gone to trial on a plea of not guilty. It also provides that the defendant shall be advised of his right to apply for appointment of counsel for purposes of appeal, if he is unable to pay the costs of appeal. Strict compliance with this Rule is required. [See Paige v. United States, 443 F.2d 781 (4th Cir. 1971).] This Rule also makes it clear that the court is under no duty to advise the defendant of any right to appeal a sentence based on a plea of guilty. This advances the notion that to advise one of his right to appeal after a plea of guilty would tend to build false hopes and encourage frivolous appeals. [See 52 F.R.D. 409, 454 (1971).]
Subdivision (b) provides for judgment, and follows the language of the Federal Rule except that the words "or findings" are omitted from the first sentence as unnecessary. Section 1-01-41, N.D.C.C., includes in the definition of "verdict", findings of fact by the judge. This Subdivision provides that the plea, the verdict, and the adjudication and
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sentence be set forth in both the written and oral judgment. Omission of these in the written judgment is not fatal, if the steps were in fact taken. [See Wright, Federal Practice and Procedure: Criminal, § 534 (1969); Sanders v. Johnston, 165 F.2d 736 (9th Cir. 1948).] If the written judgment differs from the oral pronouncement, the oral pronouncement will prevail [Cuozzo v. United States, 340 F.2d 303 (5th Cir. 1965)]. If there is a difference in a matter of substance, the judgment may be void but is subject to correction [Kennedy v. Reid, 249 F.2d 492 (D.C.Cir. 1957); Cephus v. United States, 352 F.2d 663, 664, n. 1 (D.C.Cir. 1965), cert. dismissed, 382 U.S. 897, 86 S.Ct. 229, 15 L.Ed.2d 154 (1965), cert. denied, 384 U.S. 1012, 86 S.Ct. 1956, 16 L.Ed.2d 1031 (1966); see also Wright, supra, § 534.
Subdivision (c)(1) differs from its Federal counterpart in that it leaves to the court's discretion whether or not a presentence investigation and report is to be made. If a report is ordered, the contents of the report shall be disclosed to the court only: (1) when the defendant is found guilty, (2) when the defendant has pleaded guilty, or (3) when the defendant has consented. The reason for withholding disclosure is to avoid any prejudice on the part of the judge in the event he is required to preside at a trial of the defendant. (See Wright, supra, Vol. 2 at § 523; United States v. Chrisos, 291 F.2d 535, 537 (7th Cir. 1961).]
Subdivision (c)(2) is adapted from Rule 32.2, Proposed Amendments to the Federal Rules of Criminal Procedure [48 F.R.D. 612 (1970)] and establishes a requirement that the report include any prior criminal record, behavioral characteristics, financial conditions of the defendant and circumstances affecting his behavior that may be helpful in imposing sentence or such other information as the court may require.
Subdivision (c)(3) is adapted from the Proposed Amendments to the Federal Rules of Criminal Procedure [52 F.R.D. 451 (1971)) and provides for the disclosure of the presentence report to the defendant and his counsel. This provision is included to permit the defendant and his counsel to have an opportunity to review the report for any inaccurate, incomplete or misleading information and to point out such to the court, and [effective ______________], at the discretion of the court, introduce testimony or other information. The court is provided with discretion in determining whether the report contains information harmful to the defendant, in which case the court will summarize,
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either orally or in writing, the facts which will be relied upon in determining sentence. The defendant and counsel may then comment on this statement. This Subdivision provides that the attorney for the prosecution may see any material disclosed to the defendant. A further provision requires that all copies of the presentence investigation report be returned to the court and that no additional copies shall be made by any party involved, unless otherwise directed by the court. This is to prevent copies from falling into unauthorized hands.
Subdivision (d) is adapted from A.B.A. Standards relating to Pleas of Guilty, § 21.1(a)(i), and 2.1(b).
Subdivision (e) deals with probation. When a sentence for a felony is suspended (Section 12-53-06, N.D.C.C.) or is deferred (Section 12-53-13, N.D.C.C.) the court must place the defendant on probation. Section 12-53-04 provides for probation or parole from a sentence to a county jail upon a conviction for a misdemeanor.
Subdivision (f) is divided into two paragraphs. Paragraph (1) provides for procedure for taking the probationer into custody, and Paragraph (2) establishes the procedure to be followed on hearing -- both of which are deemed necessary for a proper revocation of probation. Subdivision (f) does not apply where sentence is deferred and jurisdiction over the probationer is transferred to the parole board under Section 12-53-06 or 12-59-15, N.D.C.C.
Subdivision (f)(1) provides three methods by which a probationer may be taken into custody for alleged violation of probation, following a determination that there is probable cause to believe that a violation of probation has been committed: (1) by a State parole officer, (2) by a peace officer under direction of a State parole officer, (3) by direction or order of the court having jurisdiction over the probationer. The requirement that the hearing on a violation of probation be by the court of original imposition is intended to insure the defendant of a fair hearing. The court of imposition is best able to determine if its conditions of probation have been violated. The Subdivision also provides that the court may require the probationer to appear before it for a hearing on an alleged violation. The rule now [effective ____________] makes clear that a probationer may be admitted to bail pending the hearing.
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Subdivision (f)(1) is adapted in part from the A.B.A. Standards, Standards Relating to Probation, § 5.4 at 69 (Approved Draft, 1970). It is stated by the A.B.A. Advisory Committee that, a revocation proceeding:
"involves exactly the same kind of problem as is involved in the criminal trial itself -- the ascertainment of historical events about which they may be some dispute and the consideration of those events against a standard of conduct to which the probationer is expected to adhere. The inability of a lay-probationer to adequately protect himself in such a context would seem just as pronounced as it is at the trial itself."
Upon the hearing the court may either revoke probation and sentence the probationer or it may continue probation. The continuation of probation is allowed since there may be circumstances that will not warrant confinement, and the court should be allowed to take these into account. An appeal from revocation of probation is presently allowed under Section 12-53-20, N.D.C.C.
Subdivision (f)(2) is not intended to include those situations in which the court no longer has jurisdiction over the individual such as suspended sentence on a felony conviction or parole violation. This Subdivision does not include a provision for delay of a hearing on revocation of parole pending determination by a trial court of a crime which may be a basis for revocation. Courts should give careful consideration, in the interest of justice, to be certain that the rights of the defendant are properly protected against the needs of the public for immediate revocation of probation. [See A.B.A. Standards, supra, § 5.3 at page 63.]
RULE 41, NDRCrimP - Explanatory Note
Judge Burdick MOVED to adopt the proposed explanatory note to Rule 41, NDRCrimP. Mr. Bucklin seconded the motion. Motion CARRIED.
Rule 41 is an adaptation of Rule 41, F.R.Crim.P., as amended October 1971 and is designed to implement the provisions of Section 18 of the North Dakota Constitution and the Fourth Amendment to the United States Constitution, which guarantee, "The right of
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the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized." To implement this constitutional protection, the Supreme Court in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B 834 (1914), declared that an illegal search and seizure barred the use of such evidence in a criminal prosecution. The suppression sanction is imposed in order to discourage abuses of power by law enforcement officials in conducting searches and seizures. [8A Moore's Federal Practice (Cipes, 2d Ed. 1972), Chapter 41 at 41-11, citing Weeks v. United States, supra.]
Subdivision (a) provides that a search warrant may be issued by a magistrate, either State or Federal, acting within or for the territorial jurisdiction. The provision which permits a Federal magistrate to issue a search warrant is the reciprocal of the Federal Rule, which permits a State magistrate to issue a search warrant pursuant to a Federal matter. It is contemplated that a search warrant will be issued by a Federal magistrate only upon the non-availability of a State magistrate.
Subdivision (a) does not require that the individual requesting the search warrant be a law enforcement officer. This is consistent with existing law because Chapter 29-29, N.D.C.C., contains no requirement that the individual requesting the search warrant be a law enforcement officer. There appears to be common-law support for the use of the search warrant as a means of getting an owner's property back [see Verm.Am.Code, Code Crim.Proc., Art. 18.03 (1966) Texas]. The primary purpose of the Rule, however, is the authorization of a search in the interest of law enforcement and as a practical matter the request for issuance of a search warrant by someone other than a law enforcement officer is virtually nonexistent.
Subdivision (b) describes the property which may be seized with a lawfully issued search warrant. The Rule applies the decision of Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), which authorizes the issuance of a search warrant to search for items of solely evidential value. There is no intention to limit the protection of the Fifth Amendment against compulsory self-incrimination, so
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items which are solely "testimonial" or "communicative" in nature might well be inadmissible on those grounds. [Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). See Advisory Committee Note to Federal Rule 41 (1972). H.D. 92-285, page 43.]
Subdivision (c)(1) follows the Federal Rule except that it permits the issuance of a warrant upon sworn recorded testimony without an affidavit [see Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233 (1960); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)]. The provision for hearsay requires that the hearsay evidence be established as credible (truthful) and reliable (that the information has a factual basis upon which it is founded).
The provision for the examination of the affiant before the magistrate is intended to insure the magistrate an opportunity to make a careful decision as to whether there is probable cause based upon legally obtained evidence. The requirement that the testimony be recorded by a reporter, if available, and if no reporter is available, then by use of a recording device at the direction of the magistrate, is to insure an adequate basis for determining the sufficiency of the evidentiary grounds for the issuance of the search warrant if a motion to suppress is later filed.
The language in Subdivision (c)(1) "for reasonable cause shown", is intended to explain the necessity for executing the warrant at a time other than the daytime. This provision is intended to be a substantive prerequisite to the issuance of a warrant that is to be executed at a time other than daytime, although it is not necessary that the quoted language ("For reasonable cause shown") be incorporated in the warrant. The term "daytime" is defined in Subdivision (h) of this Rule.
Subdivision (c)(2) establishes a procedure for the issuance of a search warrant when it is not reasonably practicable for the person obtaining the warrant to present a written affidavit to, or appear before, a magistrate as required by subdivision (c)(1). A warrant may be issued on the basis of an oral statement of a person not in the physical presence of a magistrate. Telephone, radio, or other electronic methods of communication are contemplated.
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Subdivision (d) is intended to make clear that a copy of the warrant and an inventory receipt for property taken shall be left at the premises at the time of the lawful search or with the person from whose premises the property is taken if he is present.
Subdivision (e) requires that the motion for return of property be made in the trial court rather than in a preliminary hearing before the magistrate who issued the warrant. It further provides for a return of the property if: (1) the person is entitled to lawful possession, and (2) the seizure is illegal. However, property which is considered contraband does not have to be returned even if seized illegally. The last sentence of Subdivision (e) provides that a motion for return of property, made in the trial court, shall be treated as a motion to suppress under Rule 12. The purpose of this provision is to have a series of pretrial motions disposed of in a single appearance (see Rule 17.1, Omnibus Hearing) rather than a series of pretrial motions made on different dates causing undue delay in administration. [See Advisory Committee Note to Rule 41, H.D. 92-285, page 45, ¶ 3.]
RECESS
The meeting recessed to 1:15 p.m.
CALL TO ORDER
The meeting was called to order at 1:15 p.m., December 8, 1978, by Justice Paul M. Sand, Chairman.
ATTENDANCE:
Present:
Hon. Eugene A. Burdick
Mr. James L. Lamb
Mr. Richard A. McKennett
Hon. William S. Murray
Mr. David L. Peterson
Hon. Robert Vogel
Absent:
Mr. Leonard L. Bucklin
Hon. Gerald G. Glaser
Hon. Halvor L. Halvorson
Hon. Larry Hatch
Hon. Robert C. Heinley
Mr. Ward M. Kirby
Mr. Larry Kraft
Mr. LeRoy A. Loder
Mr. Herbert L. Meschke
Mr. Russell G. Nerison
Hon. James H. O'Keefe
Mr. Calvin N. Rolfson
Hon. Kirk Smith
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RULE 43, NDRCrimP - Explanatory Note
Judge Vogel MOVED to adopt the explanatory note to Rule 43, NDRCrimP, with proposed amendments. Mr. Peterson seconded the motion. Motion CARRIED.
Rule 43 is an adaptation of Rule 43 of the Proposed Amendments to the F.R.Crim.P., [52 F.R.D. 472 (April 1971)] and is designed to implement that part of the Sixth Amendment of the U.S. Constitution known as the "Confrontation Clause" and Section 13 of the North Dakota Constitution, which guarantees the accused the right to be present at the trial and confront his accusers but also recognizes that such right can be constitutionally waived.
Subdivision (a) provides that the defendant has the right to be present at the arraignment, at the impaneling of the jury, the return of the verdict, and the sentencing; and, consistent with existing law, requires his presence with certain exceptions listed in Subdivisions (b) and (c). Subdivision (a) includes the phrase "at the time of the plea" in addition to the arraignment (which is the usual and proper time for the acceptance of a plea) for consistency and in conformity with the provisions of Rule 11(e)(2), which provides that the judge may set a time other than the arraignment for accepting a plea pursuant to a plea agreement.
Subdivision (b) differs from existing Rule 43, F.R.Crim.P., in that it is designed to reflect Illinois v. Allen [397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353, rehearing denied, 398 U.S. 915, 90 S.Ct. 1684, 26 L.Ed.2d 80 (1970)], which held that "there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; or (3) take him out of the courtroom until he promises to conduct himself properly."
Under existing Federal Rule 43, trial in absentia is limited to "voluntary absence [by the defendant] after trial has been commenced", and "can be read as precluding a *** judge from exercising the third option held to be constitutionally permissible in Allen." [Advisory Committee Note to Proposed Rule 43, 52 F.R.D. 472 at page 473.] The language of the Rule is intended to make clear that the judge does have the power to exclude the defendant from the courtroom when the circumstances warrant such action.
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The provision in (b)(1) which provides that the defendant's continued presence is not required it the defendant voluntarily absents himself is consistent with State v. Thompson [56 N.D. 716, 219 N.W. 218 (1928)], which held that a defendant charged with a felony, who voluntarily absents himself from his trial, has waived the right to be present at the rendition of the verdict. [See also Butler v. United States, 317 F.2d 249, 6 A.L.R.3d 582, rehearing deniedJune 1963, cert. denied, 375 U.S. 836, 838, 84 S.Ct. 67, 77, 11 L.Ed.2d 65 (1963), and Butler v. United States, 340 F.2d 63, cert. denied, 382 U.S. 847, 84 S.Ct. 77, 11 L.Ed.2d 65 (1963).] This voluntary absence may constitute a waiver even if the defendant has not been informed by the court of his obligation to remain during the trial.
Subdivision (b)(2) [effective ___________________], provides that the defendant may be removed from the courtroom for disruptive conduct, but only after being so warned.
Subdivision (c) provides for those instances in which the defendant in a prosecution need not be present. Subsection (1) is consistent with current North Dakota law [Section 29-12-12, N.D.C.C.] and permits a corporation to appear by counsel for all purposes. As a practical matter a corporation can appear only by attorney and the only punishment available is a fine.
Subdivision (c)(2) permits defendants in prosecutions (in which the punishment does not exceed a fine or imprisonment for more than year or both) to be absent from the court proceedings. It is emphasized that this provision is discretionary with the court. If the court refuses to accept the defendant's absence from the proceedings, he must then be present to plead to the charge [Rules 11(d) and 43(a)] after which he may voluntarily absent himself in accordance with Subdivision (b)(1). Subdivision (c)(3) recognizes that requiring the defendant's presence at a reduction hearing under Rule 35 may be unduly burdensome and his absence will not unduly prejudice him. This Subdivision should not be read to preclude the defendant's presence at such proceeding
RULE 54(b), NDRCrimP
Judge Burdick MOVED to reconsider our action in adopting Rule 54(b), NDRCrimP. Mr. Lamb seconded the motion. Motion CARRIED.
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Mr. Lamb MOVED to amend Rule 54(b), NDRCrimP, as follows: "(3) Tuberculosis Board and Mental Health Commitment Proceedings." with the remainder of the subdivision to remain the same, and when so amended that
Rule 54(b)(3) be adopted. Mr. McKennett seconded the motion. Motion CARRIED.
RULE 54. Application and Exception.
(b) Proceedings.
(3) Tuberculosis Board and Mental Health Commitment Proceedings. These Rules do not apply to proceedings had for the purpose of determining whether a proposed patient should be ordered committed to the State Hospital at Jamestown or any other hospital or school for the mentally ill or mentally deficient or tubercular persons as may be authorized by Title 25, N.D.C.C., or other laws.
RULE 54, NDRCrimP - Explanatory Note
Judge Burdick MOVED to amend the proposed amendment to the explanatory note by adding the word "commitment" so that the amendment will read "Tuberculosis Board and mental health commitment," and when so amended that the explanatory note be adopted. Mr. Lamb seconded the motion. Motion CARRIED.
Rule 54 follows the form of the Federal Rule and is intended to frame the applicability of these Rules.
Subdivision (a) provides that these Rules govern "all criminal . . . proceedings in the courts of this State as prescribed in Rule 1" (Scope) except as otherwise provided in Subdivision (b). "Proceedings" is defined as meaning "all possible steps in the criminal case from its inception to judgment and sentence". [See United States v. Choate, 276 F.2d 724, 727, n. 6. 86 A.L.R.2d 1337 (5th. Cir. 1960), rehearing denied, June 1960.]
Subdivision (b) enumerates those procedures which are not applicable to these Rules.
Subdivision (b)(1) recognizes that Habeas Corpus is not a criminal proceeding but rather an independent and collateral inquiry into the validity of a conviction. [See Chapter 32-22, N.D.C.C., and Section 25-03-21, N.D.C.C]
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Subdivision (b)(2) provides that these Rules shall apply to peace bond procedures when not in conflict with Chapter 29-02, N.D.C.C.
Subdivision (b)(3) excludes Tuberculosis Board and mental health commitment proceedings from consideration under the Criminal Rules [See Title 25, N.D.C.C.]
Subdivision (b)(4) excludes certain other procedures which are either civil in nature or cannot be classified as either civil or criminal:
(i) extradition or rendition of fugitives (Chapter 29-30, N.D.C.C.);
(ii) the collection of fines and penalties (See Rule 69, N.D.R.Civ.P.);
(iii) proceedings under the Uniform Juvenile Court Act (See Chapter 27-20, N.D.C.C.) unless the juvenile is not being proceeded against as a juvenile; and
(iv) action to determine the paternity of a child born out of wedlock (Chapter 32-26, N.D.C.C.).
RULE 12.1, NDRCrimP
Mr. Lamb MOVED that we do not consider draft 2 of Rule 12.1. Mr. Peterson seconded the motion. Motion CARRIED.
Judge Vogel MOVED to amend the proposed draft 1 of Rule 12.1, as follows: Line 45, comma after "defense"; line 49, period after "intention", delete remainder of line, and delete lines 50 and 51. Mr. Lamb seconded the motion. Motion CARRIED.
Judge Burdick MOVED to adopt Rule 12.1, as amended. Judge Murray seconded the motion.
Mr. Lamb MOVED a substitute motion to adopt Rule 12.1 with the deleted language in lines 3, 4 and 5 reinstated, and in line 6 delete the word "shall." Mr. Peterson seconded the motion. Motion LOST.
Judge Vogel MOVED to adopt Rule 12.1, draft 1, as amended. Mr. Lamb seconded the motion. Motion CARRIED.
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RULE 12.1. Notice of Alibi.
(a) Notice by Defendant.
A defendant who intends to offer evidence of an alibi defense, within the time provided for the making of pretrial motions or at any time thereafter as the court directs, shall serve written notice upon the prosecuting attorney of that intention and file such notice. The notice shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish the alibi.
(b) Notice By the Prosecuting Attorney.
Within ten days thereafter, but in no event less than ten days before trial, unless the court directs otherwise, the prosecuting attorney shall serve upon the defendant or his attorney a written notice stating the names and addresses of those upon whom the prosecution intends to rely to establish defendant's presence at the scene of the alleged offense and shall file such notice.
(c) Failure to Comply.
Upon failure of either party to comply with the requirements of this Rule the court may exclude the testimony of any witness offered by that party as to the defendant's absence from, or presence at, the scene of the alleged offense. This Rule does not limit the right of the defendant to testify in his own behalf.
(d) Continuing Duty to Disclose.
Both the defendant and the prosecution are under a continuing duty to promptly disclose the names and address of additional witnesses which come to the attention of either party subsequent to their having been given notice pursuant to the requirements of this Rule.
(e) Exceptions.
For good cause shown, the court may grant an exception to any of the requirements of this Rule.
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(f) Inadmissibility of Withdrawn Alibi.
Evidence of an intention to rely upon an alibi defense later withdrawn, or of statements made in connection with such intention, is not admissible in any civil or criminal proceeding against the person who gave notice of the intention.
RULE 12.2, NDRCrimP
Judge Vogel MOVED to amend the proposed Rule 12.2, line 40, delete the word "except"; delete all of lines 41 and 42. Mr. Peterson seconded the motion. Motion CARRIED.
Judge Burdick MOVED to adopt Rule 12.2, NDRCrimP, as amended. Judge Vogel seconded the motion. Motion CARRIED.
Judge Burdick MOVED to reconsider the action in adopting Rule 12.2, as amended. Mr. Lamb seconded the motion. Motion CARRIED.
Judge Burdick MOVED to amend Rule 12.2, line 11, after the word "intention" insert "in open court or"; line 13, delete the word "insanity" and insert "the defense of lack of criminal responsibility"; after the word "raised" insert a period and delete the words "as a defense" in lines 13 and 14. Judge Vogel seconded the motion. Motion CARRIED.
Judge Vogel MOVED to adopt Rule 12.2, NDRCrimP, as amended. Judge Burdick seconded the motion. Motion CARRIED.
RULE 12.2. Notice of Defense Based on Mental Condition.
(a) Defense of Lack of Criminal Responsibility by Reason of Mental Disease or Defect.
If a defendant intends to rely upon the defense of lack of criminal responsibility by reason of mental disease or defect at the time of the alleged crime, he shall, within the time provided for the filing of pretrial motions, or at such later time as the court may direct, notify the prosecuting attorney of such intention in open court or in writing and file such notice. If there is a failure to comply with the requirements of this subdivision, the defense of lack of criminal responsibility may not be raised. The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.
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(b) Mental Disease or Defect Inconsistent With the Mental Element Required for the Offense Charged.
If a defendant intends to introduce expert testimony relating to a mental disease, defect, or other condition bearing upon the issue of whether he had the mental state required for the offense charged, he shall, within the time provided for the filing of pretrial motions or at such later time as the court may direct notify the prosecuting attorney of such intention and file such notice. The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.
(c) Psychiatric Examination.
In an appropriate case the court may, upon motion of the prosecuting attorney, order the defendant to submit to a psychiatric examination by a psychiatrist designated for this purpose in the order of the court. No statement made by the accused in the course of any examination provided for by this rule, whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused in any criminal, civil, or administrative proceeding.
(d) Failure to Comply.
If there is a failure to give notice when required by subdivision (b) of this rule or to submit to an examination when ordered under subdivision (c) of this rule, the court may exclude the testimony of any expert witness offered by the defendant on the issue of his mental state.
RULE 15, NDRCrimP
Judge Burdick MOVED to amend Rule 15, as follows: Line 19 after the word "oppress" add "or cause undue burden or expense to"; line 20 change "the" to "a"; line 21, remove the brackets and insert "jurisdiction" in lieu of "district"; line 36, delete the brackets; line 38, delete the brackets; lines 74 and 75 delete brackets and "judge" and insert "designated official"; line 87, delete brackets; lines 192 and 105, delete brackets and word "judge" and insert "judicial officer"; line 120, delete the brackets; lines 136 and 137, delete the brackets; lines 142 through 164, delete all the material in brackets. Judge Vogel seconded the motion. Motion CARRIED.
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RULE 15. Depositions.
(a) When taken. At any time after the defendant as appeared, any party may take the testimony of any person by deposition, except:
(1) The defendant may not be deposed unless he consents and his lawyer, if he has one, is present or his presence is waived;
(2) A discovery deposition may be taken after the time set by the court only with leave of court;
(3) A deposition to perpetuate testimony may be taken only with leave of court, which shall be granted upon motion of any party if it appears that the deponent may be able to give material testimony but may be unable to attend a trial or hearing; and
(4) Upon motion of a party or of the deponent and upon a showing that the taking of the deposition does or will unreasonably annoy, embarrass, or oppress, or cause undue burden or expense to, the deponent or a party, the court in which the prosecution is pending or a court of the jurisdiction where the deposition is being taken may order that the deposition not be taken or continued or may limit the scope and manner of its taking. Upon demand of the objecting party or deponent, the taking of the deposition may be suspended for the time necessary to make the motion. Attendance of witnesses and production of documentary evidence and objects may be compelled by subpoena under Rule 17.
(b) Witness who would not respond to subpoena. If a party is granted leave to take a deposition to perpetuate testimony, the court, upon motion of the party and a showing of probable cause to believe that the deponent would not respond to a subpoena, by order shall direct a law enforcement officer to take the deponent into custody and hold him until the taking of the deposition commences but not to exceed six hours and to keep the deponent in custody during the taking of the deposition. If the motion is by the prosecuting attorney, the court, upon further motion by the prosecuting attorney and a showing of probable cause to believe that the defendant would not otherwise attend the taking of the deposition, may make the same order as to the defendant.
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(c) Notice of taking. The party at whose instance the deposition is to be taken shall give all parties reasonable written notice of the name and address of each person to be examined, the time and place for the deposition, and the manner of recording. Upon motion of a party or of the deponent the court may change the time, place, or manner of record.
(d) How taken. The deposition shall be taken in the manner provided in civil actions, except:
(1) If the deposition is taken at a place over which this State lacks jurisdiction, it may be taken instead in the manner provided by the law of that place;
(2) It shall be recorded by the means specified in the notice; and
(3) Upon motion of a party and a showing that a party or the deponent is engaging in serious misconduct at the taking of a deposition, the court by order may direct that the deposition's taking be continued in the presence of a designated officer, in which case the judge may preside over the remainder of the deposition's taking.
(e) Place of taking. The deposition shall be taken in a building where the trial may be held, at a place agreed upon by the parties, or at a place designated by special or general order of the court. If the defendant is in custody or subject to terms of release which prohibit leaving the State and does not appear before the court and understandingly and voluntarily waive the right to be present, a deposition to perpetuate testimony shall not be taken at a place which requires transporting the defendant within a jurisdiction which does not confer upon law enforcement officers of this State the right to transport prisoners within it.
(f) Presence of defendant.
(1) At discovery deposition. The defendant may be present at the taking of a discovery deposition, but if he is in custody he may be present only with leave of court.
(2) At deposition to perpetuate testimony. The defendant may be present at the taking of a
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deposition to perpetuate testimony, but if his counsel is present at the taking:
(i) The court may excuse the defendant from being present if he appears before the court and understandingly and voluntarily waives the right to be present;
(ii) The taking of the deposition may continue if the defendant, present when it commenced, thereafter voluntarily absents himself therefrom; or
(iii) If the deposition's taking is presided over by a judge, the judge may direct that the deposition's taking or part thereof be conducted in the defendant's absence if the judge has justifiably excluded the defendant because of his disruptive conduct.
(3) Unexcused absence. If the defendant is not present at the commencement of the taking of a deposition to perpetuate testimony and his absence has not been excused:
(i) its taking may proceed, in which case the deposition may be used only as a discovery deposition; or
(ii) If the deposition is taken at the instance of the prosecution, the attorney may direct that the commencement of its taking be postponed until the defendant's attendance can be obtained, and the court, upon application of the prosecuting attorney, by order may direct a law enforcement officer to take the defendant into custody during the taking of the deposition.
(g) Payment of expenses. If the deposition is taken at the instance of the prosecution, the court, in all cases where the defendant is unable to bear the expense the court shall, direct the State to pay the expense of taking the deposition, including the reasonable expenses of travel and subsistence of defense counsel and, if the deposition is to perpetuate testimony or if the court permits as to a discovery deposition, of the defendant in attending the deposition.
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(h) Substantive use on grounds of unavailability. So far as otherwise admissible under the rules of evidence, a deposition to perpetuate testimony may be used as substantive evidence at the trial or upon any hearing if the deponent is unavailable as defined in Rule 804(a) of the North Dakota Rules of Evidence. A discovery deposition then may be so used if the court determines that the use is fair in light of the nature and extent of the total examination at the taking thereof, but it may be offered by the prosecution only if the defendant was present at its taking. If only a part of a deposition is offered in evidence by a party, an adverse party may require him to offer or may himself offer all of it which is relevant to the part offered.
(i) Objections to admissibility. Objections to receiving in evidence a deposition or part thereof may be made as provided in civil actions.
(j) Deposition by agreement not precluded. Nothing in this Rule precludes the taking of a deposition, orally or upon written questions, or the use of a deposition by agreement of the parties.
ADJOURNMENT
Judge Vogel MOVED to adjourn. Judge Burdick seconded the motion. Motion CARRIED.
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Secretary