TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 11, 2014
RE: Rule 11, N.D.R.Crim.P., Pleas
Fed.R.Crim.P. 11 was amended, effective Dec. 1, 2013, to expand the colloquy to require advising a defendant of possible immigration consequences when a judge accepts a guilty plea.
The federal criminal rules advisory committee explained the rationale behind the amendment:
"The amendment was undertaken in light of the Supreme Court's decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), which held that a defense attorney's failure to advise the defendant concerning the risk of removal fell below the objective standard of reasonable professional assistance guaranteed by the Sixth Amendment. In light of Padilla, the advisory committee concluded that a judicial warning regarding possible immigration consequences should be required as a uniform practice at the plea allocution."
The committee also explained that, because of the complexity of immigration law, the new advice was made "generic":
"The advisory committee concluded that the most effective and efficient method of conveying this information is to provide it to every defendant, without first attempting to determine the defendant's citizenship. . . . Accordingly, its proposal uses non-technical language designed to be understood by lay persons and will avoid the need to amend the rule further if there are legislative changes."
A proposed amendment to Rule 11 consistent with the federal amendment is attached. A copy of the federal rule and the complete federal commentary on the amendment is also attached.