RULE 12.1 NOTICE OF ALIBI
Effective Date: 1/1/1988
Obsolete Date: 3/1/2006
(a) Notice by Defendant. A defendant who intends to offer evidence of an alibi defense, within the time provided for the making of pretrial motions or at any time thereafter as the court directs, shall serve written notice upon the prosecuting attorney of that intention and file the notice. The notice must state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom the defendant intends to rely to establish the alibi.
(b) Notice by the Prosecuting Attorney. Within ten days thereafter, but in no event less than ten days before trial, unless the court directs otherwise, the prosecuting attorney shall serve upon the defendant or the defendant's attorney a written notice stating the names and addresses of those upon whom the prosecution intends to rely to establish defendant's presence at the scene of the alleged offense and shall file the notice.
(c) Failure to Comply. Upon failure of either party to comply with the requirements of this Rule the court may exclude the testimony of any witness offered by that party as to the defendant's absence from, or presence at, the scene of the alleged offense. This Rule does not limit the right of the defendant to testify.
(d) Continuing Duty to Disclose. Both the defendant and the prosecution are under a continuing duty to promptly disclose the names and addresses of additional witnesses which come to the attention of either party subsequent to their having been given notice pursuant to the requirements of this Rule.
(e) Exceptions. For good cause shown, the court may grant an exception to any of the requirements of this Rule.
(f) Inadmissibility of Withdrawn Alibi. Evidence of an intention to rely upon an alibi defense, later withdrawn, or of statements made in connection with that intention, is not, in any civil or criminal proceeding, admissible against the person who gave notice of the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 was amended, effective, January 1, 1980; January 1, 1988; March 1, 1990; March 1, 2006; March 1, 2011.
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.
STATUTES AFFECTED:
SUPERSEDED: N.D.C.C. § 29-14-28.