RULE 16. DISCOVERY AND INSPECTION

Effective Date: 9/1/1983

Obsolete Date: 3/1/1997

(a) Disclosure of Evidence by Prosecuting Attorney.

(1) Information Subject to Disclosure.

(A) Statement of Defendant. Upon written request of a defendant, the prosecuting attorney shall disclose to the defendant and make available for inspection, copying, or photographing: (i) any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody, or control of the prosecution, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney; (ii) that portion of any written record containing the substance of any oral statement made by the defendant, whether before or after arrest, in response to interrogation by any person then known to the defendant to be an agent of the government; (iii) recorded testimony of the defendant before a grand jury concerning the offense charged; and (iv) the substance of any other oral statement made by the defendant whether before or after arrest in response to interrogation by any person then known by the defendant to be a government agent. If the defendant is a corporation, partnership, association, or labor union, the court may grant the defendant, upon its motion, discovery of relevant recorded testimony of any witness before a grand jury who (i) at the time of testifying, was so situated as an officer or employee as to have been legally able to bind the defendant in respect to conduct constituting the offense, or (ii) at the time of the offense, was personally involved in the alleged conduct constituting the offense and so situated as an officer or employee as to have been legally able to bind the defendant in respect to that conduct.
(B) Defendant's Previous Record. Upon written request of the defendant, the prosecution shall furnish to the defendant a copy of the defendant's previous criminal record, if any, as is within the possession, custody, or control of the prosecution, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney.
(C) Documents and Tangible Objects. Upon written request of a defendant, the prosecuting attorney shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings, or places, or copies or portions thereof, which are within the possession, custody, or control of the prosecution, and which are material to the preparation of the defendant's defense, or are intended for use by the prosecutor as evidence in chief at the trial, or were obtained from or belong to the defendant.
(D) Reports of Examinations and Tests. Upon written request of a defendant the prosecuting attorney shall permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, within the possession, custody, or control of the prosecution, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney, and which are material to the preparation of the defense or are intended for use by the prosecutor as evidence in chief at the trial.

(2) Information Not Subject to Disclosure. Except as provided in paragraphs (A), (B), and (D) of paragraph (1), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal prosecution documents made by prosecution agents in connection with the investigation or prosecution of the case, or of statements made by prosecution witnesses or prospective prosecution witnesses (other than the defendant) to agents of the prosecution except as provided in subdivision (f) of this Rule.

(b) Disclosure of Evidence by the Defendant.

(1) Information Subject to Disclosure.

(A) Documents and Tangible Objects. If the defendant, in writing, requests disclosure under subdivision (a)(1)(C) or (D), upon compliance with the request by the prosecution, the defendant, upon written request of the prosecution, shall permit the prosecution to inspect and copy or photograph books, papers, documents, photographs, tangible objects, or copies or portions thereof, which the defendant intends to produce in chief at the trial and which are within its possession, custody, or control.
(B) Reports of Examinations and Tests. If the defendant, in writing, requests disclosure under subdivision (a)(1)(C) or (D) upon compliance with the request by the prosecution, the defendant, on written request of the prosecution, shall permit the prosecution to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession or control of the defendant, which the defendant intends to introduce as evidence in chief at the trial or which were prepared by a witness whom the defendant intends to call at the trial when the results or reports relate to the witness' testimony.

(2) Information Not Subject to Disclosure. Except as to scientific or medical reports, this subdivision does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant or the defendant's attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant, or by prospective prosecution or defense witnesses to the defendant or to the defendant's agents or attorneys.

(c) Continuing Duty to Disclose. If, before or during trial, a party discovers additional evidence or material previously requested or ordered which is subject to discovery or inspection under this Rule, the party shall promptly notify the other party or the other party's attorney or the court of the existence of the additional material.

(d) Regulation of Discovery.

(1) Protective and Modifying Orders. Upon a sufficient showing the court at any time may order that the discovery or inspection be denied, restricted, or deferred or make such other order as is appropriate. Upon motion by a party, the court may permit the party to make the showing, in whole or in part, in the form of a written statement to be inspected by the court in camera. If the court enters an order granting relief following a showing in camera, the entire text of the party's statement must be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.

(2) Failure to Comply With Request. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Rule or with an order issued pursuant to this Rule, the court may order that party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, relieve the requesting party from making a disclosure required by this Rule, or it may enter such other order as it deems just under the circumstances. The court may specify the time, place, and manner of making the discovery and inspection and may prescribe such terms and conditions as are just.

(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 written request of the defendant, the prosecution shall furnish to the defendant a written list of the names and addresses of all prosecution witnesses, and any statements made by them, whom the prosecuting attorney intends to call in the presentation of the case in chief, together with any records of prior felony convictions of any of those witnesses which are within the knowledge of the prosecuting attorney. If a written request for discovery of the names, addresses, and statements of witnesses has been made by a defendant, the prosecuting attorney must be allowed to perpetuate the testimony of those witnesses in accordance with the provisions of Rule 15.

(2) Statements of Codefendants. Upon written request of the defendant, the prosecution shall permit the defendant to inspect and copy or photograph any relevant written or recorded confession, admission, or statement of a codefendant, or copies thereof, within the possession, custody, or control of the prosecution, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney.

(3) Statements of Other Persons. Upon written request of the defendant, the prosecution shall permit the defendant to inspect and copy or photograph any relevant written or recorded statement of any person, or copies thereof, within the possession, custody, or control of the prosecution, the existence of which is known to the prosecuting attorney and which is not available to the defendant under subdivision (a) or paragraph (1) or (2) of this subdivision.

(4) The term "statement," as used in this subdivision, means:

(i) a written statement made by the witness, codefendant, or other person and signed or otherwise adopted by the declarant; or
(ii) a stenographic, mechanical, electrical, or other record, or a transcription thereof, 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