RULE 16. DISCOVERY AND INSPECTION

Effective Date: 5/1/2017

(a) Disclosure of Evidence by Prosecuting Attorney.

(1) Information Subject to Disclosure.

(A) Statement of Defendant. Upon a defendant's written request, the prosecuting attorney must disclose to the defendant and make available for inspection, copying, or photographing all of the following:

(i) any relevant written or recorded statement by the defendant, if:

—the statement is within the prosecution's possession, custody, or control; and

—the prosecuting attorney knows—or through due diligence could know—that the statement exists;

(ii) the portion of any written record containing the substance of any relevant oral statement made before or after arrest if the defendant made the statement in response to interrogation by a person the defendant knew was a government agent;

(iii) the defendant's recorded testimony before a grand jury relating to the charged offense; and

(iv) the substance of any other oral statement made by the defendant, before or after arrest, in response to interrogation by a person the defendant knew was a government agent.

(B) Organizational Defendant. Upon a defendant's request, if the defendant is an organization such as a corporation, partnership, association, or labor union, the prosecution must disclose to the defendant any statements described in Rule 16(a)(1)(A) if the prosecution contends that the person making the statement:

(i) was legally able to bind the defendant regarding the subject of the statement because of that person's position as the defendant's director, officer, employee, or agent; or

(ii) was personally involved in the alleged conduct constituting the offense and was legally able to bind the defendant regarding that conduct because of that person's position as the defendant's director, officer, employee, or agent.

(C) Defendant's Previous Record. Upon a defendant's written request, the prosecution must furnish the defendant with a copy of the defendant's prior criminal record, if any, that is within the prosecution's possession, custody, or control if the prosecuting attorney knows—or through due diligence could know—that the record exists.

(D) Documents and Objects. Upon a defendant's written request, the prosecuting attorney must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings, or places, or copies or portions of any of these items, if the item is within the prosecution's possession, custody, or control, and:

(i) the item is material to preparing the defense;

(ii) the prosecution intends to use the item in its case-in-chief at trial; or

(iii) the item was obtained from or belongs to the defendant.

(E) Reports of Examinations and Tests. Upon a defendant's written request, the prosecuting attorney must permit a defendant to inspect and to copy or photograph the results or reports of any physical or mental examinations, and of any scientific tests or experiments if:

(i) the item is within the prosecution's possession, custody, or control;

(ii) the prosecuting attorney knows—or through due diligence could know—that the item exists; and

(iii) the item is material to preparing the defense or the prosecution intends to use the item in its case-in-chief at the trial.

(F) Expert Witnesses. Upon a defendant's written request, the prosecution must give to the defendant a written summary of any testimony that the prosecution intends to use under N.D.R.Ev. 702, 703, or 705 during its case-in-chief at trial. If the prosecution requests discovery under Rule 16(b)(1)(C)(ii) and the defendant complies, the prosecution must, upon the defendant's written request, give to the defendant a written summary of testimony that the government intends to use under N.D.R.Ev. 702, 703, or 705 as evidence at trial on the issue of the defendant's mental condition. Expert witness summaries must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications.

(2) Information Not Subject to Disclosure. Except as Rule 16(a)(1) provides otherwise, this rule does not authorize the discovery or inspection of reports, memoranda, or other internal prosecution documents made by an attorney for the prosecution or other prosecution agent in connection with investigating or prosecuting the case. Nor does this rule authorize the discovery or inspection of statements made by prosecution witnesses or prospective prosecution witnesses (other than the defendant) to agents of the prosecution except as provided in Rule 16 (f).

(b) Defendant's Disclosure.

(1) Information Subject to Disclosure.

(A) Documents and Objects. If a defendant, in writing, requests disclosure under Rule 16 (a)(1)(D), and the prosecution complies, then the defendant, upon written request of the prosecution, must permit the prosecution to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items if:

(i) the item is within the defendant's possession, custody, or control: and

(ii) the defendant intends to use the item in the defendant's case-in-chief at trial.

(B) Reports of Examinations and Tests. If a defendant, in writing, requests disclosure under Rule 16(a)(1)(E) and the prosecution complies, the defendant, upon written request of the prosecution, must permit the prosecution to inspect and to copy or photograph the results or reports of any physical or mental examination and of any scientific test or experiment if:

(i) the item is within the defendant's possession, custody, or control; and

(ii) the defendant intends to use the item in the defendant's case-in-chief at trial or intends to call the witness who prepared the report and the report relates to the witness's testimony.

(C) Expert Witnesses. The defendant must, upon written request of the prosecution, give to the prosecution a written statement of any testimony that the defendant intends to use under N.D.R.Ev. 702, 703, or 705 as evidence at trial, if:

(i) the defendant requests disclosure under Rule 16(a)(1)(F) and the prosecution complies; or

(ii) the defendant has given notice under Rule 12.2(b) of an intent to present expert testimony on the defendant's mental condition.

This summary must describe the witness's opinions, the bases and reasons for these opinions, and the witness's qualifications.

(2) Information not Subject to Disclosure. Except for scientific or medical reports, Rule 16(b) does not authorize the discovery or inspection of reports, memoranda, or other documents made by the defendant or the defendant's attorney or agent during the case's investigation or defense or of statements made to the defendant, or the defendant's attorney or agent, by the defendant, a prosecution or defense witness, or a prospective prosecution or defense witness.

(c) Continuing Duty to Disclose. A party who discovers additional evidence or material before or during trial must promptly disclose its existence to the other party or the court if:

(1) the evidence or material is subject to discovery or inspection under this rule; and

(2) the other party previously requested, or the court ordered, its production.

(d) Regulating Discovery.

(1) Protective and Modifying Orders. At any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief. Upon motion, the court may permit a party to show good cause by a written statement that the court will inspect in camera. If relief is granted following a showing in camera, the court must preserve the entire text of the party's statement under seal.

(2) Failure to Comply. If a party fails to comply with this rule or with an order issued under this rule, the court may:

(i) order that party to permit the discovery or inspection: specify its time, place and manner; and prescribe other just terms and conditions;

(ii) grant a continuance ;

(iii) prohibit that party from introducing the undisclosed evidence;

(iv) relieve the requesting party from making a disclosure required by this rule; or

(v) enter any other order that is just under the circumstances.

(e) Alibi Witnesses. Discovery of alibi witnesses is governed by Rule 12.1.

(f) Demands for Production of Names, Addresses, and Statements of Witnesses; Statements of Codefendants; Statements of Other Persons.

(1) Names, Addresses, and Statements of Prosecution Witnesses. Upon a defendant's written request, the prosecution must furnish the defendant:

(A) a written list of the names and addresses of all prosecution witnesses whom the prosecution intends to call during its case-in-chief;

(B) any statements made by the listed prosecution witnesses; and

(C) any records of prior criminal convictions of the listed prosecution witnesses that the prosecuting attorney knows—or by the exercise of due diligence could know—to exist.

A prosecutor may not disclose victim contact information, including the address of a victim, if the victim has requested nondisclosure. If a defendant makes a written request for discovery of the names, addresses, and statements of witnesses, the prosecuting attorney must be allowed to perpetuate the testimony of those witnesses under Rule 15.

(2) Statements of Codefendants. Upon a defendant's written request the prosecution must permit the defendant to inspect and to copy or photograph any relevant written or recorded confession, admission, or statement of a codefendant, or copies of any of these items if:

(A) the item is within the prosecution's possession, custody, or control; and

(B) the prosecuting attorney knows—or through due diligence could know—that the item exists.

(3) Statements of Other Persons. Upon a defendant's written request, the prosecution must permit the defendant to inspect and to copy or photograph any relevant written or recorded statement of any person if:

(A) the statement is within the prosecution's possession, custody, or control;

(B) the prosecuting attorney knows—or through the exercise of due diligence could know—that the statement exists; and

(C) the statement is not available to the defendant under Rule 16(a) or 16(f)(1) and (2).

(4) The term "statement," as used in Rule 16(f) means:

(A) a written statement made by the witness, codefendant, or other person and signed or otherwise adopted by the declarant; or

(B) a stenographic, mechanical, electronic, or other record, or a transcription of a record, which is a substantially verbatim recital of an oral statement made by the witness, codefendant, or other person to an agent of the prosecution and recorded contemporaneously with the making of the oral statement.

Rule 16 was amended, effective September 1, 1983; March 1, 1990; March 1, 1994; March 1, 1997; March 1, 2006; May 1, 2017.

Prior to the adoption of this rule, discovery proceeded on an informal basis. The only requirement placed upon the prosecutor was the constitutional imperative that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to the guilt or punishment, irrespective of the good faith or bad faith of the prosecution.

While the rule, as amended, provides greater discovery, it is intended to prescribe only the minimum amount of discovery to which the parties are entitled. It is not intended to limit the judge's discretion to order broader discovery in appropriate cases. Nor is it intended to prevent the voluntary disclosure of other evidence or material by the parties at any time.

Rule 16 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.

Subdivision (a)(1)(A) was amended, effective March 1, 1994, in response to the 1991 federal amendment. The amendment to North Dakota's rule requires the prosecution, upon written request, to disclose that portion of any written record containing the substance of any oral statement made by the defendant in response to interrogation by any person then known to the defendant to be an agent of the government. The amendment also requires the prosecution, upon written request, to disclose the substance of any oral statement made by the defendant in response to interrogation by any person then known by the defendant to be an agent of the government.

Unlike the federal rule, North Dakota's rule does not allow the government to assess whether a written record containing the substance of an oral statement, or the substance of an oral statement, is relevant. The written record containing the substance of any oral statement, or the substance of any oral statement, must be disclosed regardless of whether the prosecution considers the oral statement relevant, and regardless of whether the prosecution intends to use the oral statement.

Subparagraphs (a)(1)(E) and (b)(1)(C) were adopted, effective March 1, 2006. These provisions set conditions for reciprocal disclosure by the prosecution and defendant of proposed expert witness testimony.

Subdivision (f) was adopted, effective September 1, 1983. The provisions were drawn from Rules 421 and 422, Uniform Rules of Criminal Procedure (1974); Standard 11-2.1, American Bar Association Standards for Criminal Justice (2d ed. 1980); and Fed.R.Crim.P. 16's provision requiring disclosure of expert witness information.

Subdivision (f) does not require, as did former subdivision (i), that the person whose statement is produced must first have testified on direct examination. It is intended that the listed statements be discoverable at any point in the proceedings.

Subdivision (f) was amended, effective May 1, 2017, to bar a prosecutor from disclosing contact information of a victim if the victim has requested nondisclosure under N.D. Const. Art. I, § 25(1)(e). "Victim" is defined in N.D. Const. Art. I, § 25(4).

SOURCES: Joint Procedure Committee Minutes of January 26-27, 2017, pages 9-10; January 27-28, 2005, pages 12-13; April 25, 1996, page 15; January 25-26, 1996, pages 22-23; April 27-28, 1995, pages 2-3; September 29-30, 1994, pages 7-9; April 28-29, 1994, pages 12-14; April 29-30, 1993, pages 10-11; January 28-29, 1993, pages 12-13; April 20, 1989, page 4; December 3, 1987, page 15;February 17-18, 1983, pages 5-11; November 18-19, 1982, pages 5-10; September 30-October 1, 1982, pages 3-6; April 15-16, 1982, page 1; December 7-8, 1978, pages 9-13; October 12-13, 1978, pages 3-8; September 27, 1974, page 4; October 17-20, 1972, pages 1-2; June 26-27, 1972, pages 9-14; December 11-12, 1968, pages 4-13; Fed.R.Crim.P. 16.

STATUTES AFFECTED:

CONSIDERED: N.D. Const. Art. I, § 25.

CROSS REFERENCE: N.D.R.Crim.P. 12.1 (Notice of Alibi Defense); N.D.R.Crim.P. 17.1 (Omnibus Hearing and Pretrial Conference); N.D.R.Ev. 612 (Writing or Object Used to Refresh Memory); N.D.R.Ev. 702 (Testimony by Experts); N.D.R.Ev. 703 (Bases of Opinion Testimony by Experts); N.D.R.Ev. 705 (Disclosure of Facts or Data Underlying Expert Opinion). See also: N.D.C.C. ch. 29-10.1 (Grand Jury); N.D.C.C. ch.29-10.2 (State Grand Jury).

Effective Date Obsolete Date
05/01/2017 View
03/01/2006 03/01/2017 View
03/01/1997 03/01/2006 View
09/01/1983 03/01/1997 View