TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 12, 2017
RE: Rule 5, N.D.R.Crim.P., Initial Appearance Before the Magistrate
In November, the voters approved the "Marsy's Law" constitutional amendment and in December it went into effect as N.D. Const. Art. I, § 25. The Administrative Council discussed the new constitutional provision at its Dec. 9 meeting and in a letter, attached, the council requests that the committee take "expedited action" on any rule changes necessary in response to Marsy's Law. A copy of the letter and N.D. Const. Art. I, § 25, is attached.
Art. I, § 25 provides an assortment of rights to crime victims. Art. I, § 25(4) defines victim as follows: "As used in this section, a "victim" is a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act or against whom the crime or delinquent act is committed. If a victim is deceased, incompetent, incapacitated, or a minor, the victim's spouse, parent, grandparent, child, sibling, grandchild, or guardian, and any person with a relationship to the victim that is substantially similar to a listed relationship, may also exercise these rights. The term "victim" does not include the accused or a person whom the court finds would not act in the best interests of a deceased, incompetent, minor, or incapacitated victim."
In an opinion dated Dec. 30, 2016, which considered the victim information protections under Marsy's Law the Attorney General concluded that victims need to affirmatively assert their Marsy's Law rights. A copy of the opinion is attached.
On the other hand, one right that seems to be affirmatively provided to victims under Marsy's Law is the right to be informed of their rights. Art. I, § 25(1)(s) gives victims: "[t]he right to be informed of these rights, and to be informed that victims can seek the advice of an attorney with respect to their rights. This information shall be made available to the general public and provided to all crime victims in what is referred to as a Marsy's card."
Because many of the rights victims may evoke under Marsy's Law relate to participation in criminal case proceedings, it may be appropriate at the outset of a criminal case for the magistrate to establish that the victim has been provided with a Marsy's card as required by Art. I, § 25(1)(s). Proposed amendments to Rule 5 that would incorporate this requirement are attached.