TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 10, N.D.R.App.P., The Record on Appeal
In a letter, dated March 10, 2005, Mr. Bruce Entzi has asked the Committee to consider amending N.D.R.App.P. 10 (f), which relates to the "Statement Of Evidence When Proceedings Not Recorded Or When Transcript Unavailable." A copy of Mr. Entzi's letter is attached.
Under Rule 10(f), one party submits a "statement of the evidence or proceedings from the best available means" and the other party then submits "objections or proposed amendments." The "district court" then evaluates the submissions "for settlement and approval."
Mr. Entzi's position is that the trial judge should be ineligible to perform the settlement and approval when the trial judge is an "interested party" and an "actual witness" to the proceedings that went unrecorded. Mr. Entzi claims State v. Vogel, 325 N.W.2d 184 (N.D. 1982), supports his position. The Supreme Court in Vogel stated that "allegations of an interested party ordinarily must be supported by independent proof." A copy of the opinion is attached.
In Mr. Entzi's own case, State v. Entzi, 2000 ND 148, 615 N.W.2d 145, Mr. Entzi argued that the trial judge erroneously failed to have voir dire recorded. Id. at 4. Mr. Entzi also suggested that a recording of voir dire would have revealed that the trial court "conducted jury selection improperly" and "abused its discretion by failing to excuse four jurors for actual or implied bias." Id. at 9, 13. The trial court, however, in settling and approving the record, concluded that Mr. Entzi did not request that voir dire be recorded. Id. at 5. The Supreme Court rejected Mr. Entzi's arguments related to voir dire and errors in jury selection, in part because Mr. Entzi could not make a factual showing to support his claims. A copy of the opinion is attached.
An amendment to Rule 10(f) consistent with Mr. Entzi's proposal was prepared by staff and is attached. The proposed change is at lines 106-107. It should be noted that whether or not to record voir dire is no longer an issue -- under the Appendix to N.D. Sup. Ct. Admin. R. 9, effective June 1, 2002, voir dire must be recorded in felony cases.