(a) Notice by Defendant. A defendant who intends to offer an alibi defense must serve written notice on the prosecuting attorney of any intended alibi defense and file the notice within the time provided for the making of pretrial motions or afterward as the court directs. The notice must state:
(1) each specific place where the defendant claims to have been at the time of the alleged offense; and
(2) the name, address, and telephone number, if any, of each witness on whom the defendant intends to rely.
(b) Notice by Prosecuting Attorney.
(1) Disclosure. If the defendant serves a Rule 12.1(a) notice, the prosecuting attorney must disclose in writing to the defendant or the defendant's attorney:
(A) the name, address, and telephone number, if any, of each witness the prosecution intends to rely on to establish defendant's presence at the scene of the alleged offense; and
(B) each prosecution rebuttal witness to the defendant's alibi defense.
(2) Time to Disclose. Unless the court directs otherwise, the prosecuting attorney must give its Rule 12.1(b)(1) disclosure within 14 days after the defendant serves notice of an intended alibi defense under Rule 12.1(a), but no later than 14 days before trial.
(c) Continuing Duty to Disclose. Both the defendant and the prosecuting attorney must promptly disclose in writing to the other party the name, address, and telephone number, if any, of each additional witness if:
(1) the disclosing party learns of the witness before or during trial; and
(2) the witness should have been disclosed under Rule 12.1(a) or (b) if the disclosing party had known of the witness earlier.
(d) Exceptions. For good cause, the court may grant an exception to any requirement of Rule 12.1(a) - (c).
(e) Failure to Comply. If a party fails to comply with this rule, the court may exclude the testimony of any undisclosed witness regarding the defendant's alibi. This rule does not limit the defendant's right to testify.
(f) Inadmissibility of Withdrawn Alibi. Evidence of an intention to rely on an alibi defense, later withdrawn, or of a statement made in connection with that intention, is not, in any civil or criminal proceeding, admissible against the person who gave notice of the intention.
Rule 12.1 is an adaptation of Fed.R.Crim.P. 12.1 with changes to conform to the style as established in the North Dakota Rules of Criminal Procedure.
Rule 12.1 was amended, effective January 1, 1988, to conform to the language style of the 1985 amendment to Fed.R.Crim.P. 12.1. Subdivisions (a), (b) and (c) were amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Rule 12.1 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Provision for notice of alibi to be given to the prosecuting attorney by the defendant in a criminal case was passed by the Legislature at the 1969 session as N.D.C.C. § 29-14-28. Rule 12.1 changed and broadened these provisions by requiring the prosecution to initiate the notice provisions, by including notice by the prosecuting attorney of any witnesses the prosecuting attorney may have to rebut the alibi testimony and by imposing a continuing duty of disclosure on both the prosecution and the defendant.
By amendment effective January 1, 1980, the initial burden was placed on the defendant to raise the defense of alibi. This is done by serving written notice upon the prosecuting attorney within a specified time and filing the notice. The notice must list specific places and names of alibi witnesses as required by subdivision (a). Within the time specified, the prosecuting attorney must respond by serving written notice of the names of the prosecuting attorney's witnesses placing defendant at the location of the offense. Failure to comply with the notice requirements may result in exclusion of testimony on this issue by witnesses for the noncomplying party.
Paragraph (b)(2) was amended, effective March 1, 2011, to increase the time for the prosecution to give its disclosure from 10 to 14 days after the defendant serves notice of an intended alibi defense.
Subdivision (f) provides for the inadmissibility of a withdrawn alibi or statements made in connection with it, in any proceeding.
SOURCES: Joint Procedure Committee Minutes of April 29-30, 2010, page 20; January 27-28, 2005, pages 6-8; April 20, 1989, page 4; December 3, 1987, page 15; January 23, 1986, page 7; January 25-26, 1979, pages 2-3; December 7-8, 1978, pages 30-32; October 12-13, 1978, page 2; April 24-26, 1973, page 9; May 11-12, 1972, pages 13-14; Fed.R.Crim.P. 12.1.
SUPERSEDED: N.D.C.C. § 29-14-28.