TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 13, 2017
RE: Rule 24, N.D.R.Crim.P., Trial Jurors
Justice McEvers has identified a problem with language in Rule 24(b)(1)(B). The last sentence of this paragraph provides that: "A challenge to a prospective juror must be made before the juror is sworn to try the case, unless the court permits it to be made after the prospective juror is sworn but before jeopardy has attached." The language after the comment appears inconsistent with current constitutional law.
This language has been part of the rule since it was adopted in 1972. It seems to be based on the language of N.D.C.C. 29-17-29, which was superseded by the rule. Copies of the original rule text and the statute are attached.
In State v. Berger, 235 N.W.2d 254 (N.D. 1975), the Supreme Court stated: "[t]he general rule is that a person is put in jeopardy when his trial commences, which in a jury case occurs when the jury is empaneled and sworn . . . ." The Court also stated that this rule was first recognized in North Dakota in State v. Allesi, 216 N.W.2d 805 (N.D. 1974). A copy of the Berger case is attached.
Proposed amendments to Rule 24 deleting the language allowing a juror to be challenged after being sworn are attached.