TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 19, 2016
RE: Rule 32.2, N.D.R.Crim.P., Pretrial Diversion
Attorney Jackson Lofgren, writing on behalf of the North Dakota Association of Criminal Defense Lawyers, has requested the committee to consider an amendment to Rule 32.2 allowing for sealing of the file after successful completion of a diversion agreement.
A proposed amendment to Rule 32.2 is attached. It would allow for a party to move to have the file sealed under N.D. Sup. Ct. Admin. R. 41 after successful completion of a diversion agreement. This proposal would essentially give a party permission to do what they are already allowed to do under Rule 41: Section 6(a) allows a party to move to prohibit access to any record and Section 6(a)(6) specifically allows a defendant whose criminal charges have been dismissed to move to have internet access to the case restricted.
Mr. Lofgren did not request that the file in a successfully completed diversion case be automatically sealed, which is what happens by statutory requirement in deferred imposition of sentence cases. If the committee believes that this would be appropriate in diversion cases, Rule 41 would need to be amended to add this case type to Section 5.