TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 16, N.D.R.Crim.P., Discovery and Inspection
Form and style amendments to the Federal Rules of Criminal Procedure took effect December 1, 2002. Attached are proposed amendments to N.D.R.Crim.P. 16 which are in the spirit of the federal form and style amendments.
Rule 16 was similar to the prior version of Fed.R.Crim.P. 16. Consequently, the proposed revisions to Rule 16 generally track the federal revisions: paragraphs have been converted into outline form and sentences have been restructured to be in active voice.
A pair of proposed substantive additions to Rule 16 can be found at line 67-75 and 109-117, where reciprocal provisions for discovery of expert witness information are inserted. In State v. Lince, attached, the North Dakota Supreme Court decided that, under Rule 16(f), the prosecution must provide expert witness information when the defendant requests it. The proposed additions, which are based on the federal model, would provide more specifics about what expert witness information must be produced and would allow the prosecution to obtain such information from the defense.
Note: In N.D.C.C. 29-01-32, the legislature attempted to require defendants to provide reciprocal discovery. The Supreme Court held that this statute infringed unconstitutionally on the Court's rulemaking power. State v. Hanson, 558 N.W.2d 611 (N.D. 1996)
Rule 16 (f), which gives the defendant the right to demand certain witness information from the prosecution, is not based on the federal rule. For the sake of uniformity, form and style amendments to Rule 16 (f) consistent with the federal changes and the revisions to the rest of the rule are proposed. Amendments to the explanatory note are also proposed, both to explain the changes to the rule text and to eliminate some obsolete items.
The proposed amendments to Rule 16 are attached.