TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 10, 2015
RE: Rule 23.1, N.D.R.Crim.P., Jury Expenses
The Supreme Court has referred to the committee for review and recommendation a letter from Judge Douglas Mattson suggesting an amendment to Rule 23.1. The Court's referral and Judge Mattson's letter are attached.
Judge Mattson suggests that Rule 23.1 be amended to allow jury expenses to be assessed against a criminal defendant who, without good cause, does not appear for a jury trial. Judge Mattson says that such a change is needed because of the increasing demand for jury trials and the difficulties that result when a defendant does not appear. Judge Mattson says that allowing assessment of jury expenses would be a more efficient method of dealing with a non-appearing defendant than using the contempt process. A proposed amendment to Rule 23.1 incorporating Judge Mattson's suggestion is attached.
In State v. Kopperud, 2015 ND 124 (attached), the Court held that Rule 23.1 barred the assessment of jury expenses against a defendant who failed to appear for a jury trial. In a concurrence, Chief Justice Gerald VandeWalle agreed that a contempt sanction was the existing option when a defendant failed to appear but he suggested that: "perhaps it is time to consider amending the rule to provide that jury expenses may not be assessed in a criminal case unless the defendant without justifiable or reasonable excuse fails to appear at the time designated for the jury trial. A defendant who exercises the right to a jury trial should be aware that the failure, without good reason, to appear for the jury trial is not only a contempt of court but that the expenses of calling that jury may be assessed as costs directly against the defendant."