TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 18, 2015
RE: Rule 3, N.D.R.Crim.P., The Complaint; Rule 4, N.D.R.Crim.P., Arrest Warrant or Summons upon Complaint
East Central Judicial District Judge Frank Racek, who is also chair of the Court Technology Committee, has requested that the committee consider amending Rules 3 and 4 to eliminate the sworn statement requirement when a complaint or probable cause document is submitted by a licensed peace officer. The rationale for this proposal is to allow a seamless, all electronic process to be used when peace officers are seeking arrest warrants and sharing complaints and probable cause documents with state's attorneys.
The attached e-mail from Judge Racek shows that this request was prompted by officials at the North Dakota Criminal Justice Information Sharing (CJIS) office looking for ways to eliminate the notarization requirement for these documents given that there is not yet a working electronic notarization process. Under the current process these documents are entered electronically by law enforcement, then printed out, notarized, and scanned back into the system.
Staff worked with Judge Racek and Justice Dan Crothers to draft proposed amendments to Rules 3 and 4 that would create a narrow exception to the sworn statement require for licensed peace officers. The exception would allow them to submit documents containing a written declaration that they are made and subscribed under penalty of perjury. The proposed amendments are attached.
The part of N.D.C.C. 29-05-01 that requires a complaint to be sworn would need to be superseded to implement the proposed amendments. N.D.C.C. ch. 29-05 is attached for the committee's reference many of the chapter's statutes have already been superseded by the Rules of Criminal Procedure.
The proposed new language is based on statutory language that allows declarations under penalty of perjury to be made when tax documents are submitted under N.D.C.C. Title 57 and other documents are submitted under the Uniform Commercial Code and state warehousing law. Example statutes containing this language are attached. The penalty for making false statements under N.D.C.C. 12.1-11-02, attached, extends to statements made "under oath or equivalent affirmation."