Changes to criminal rules go into effect March 1 Monday, February 25, 2019
On March 1, amendments to the Rules of Criminal Procedure and the Supreme Court Administrative rules relating to criminal cases become effective. Here is an explanation of these upcoming criminal rule changes.
See the details of the March 1 rule amendments here.
North Dakota Rules of Criminal Procedure
Rule 11 - Pleas
Subdivision (b) was amended to reference Rule 43(b)(2), which allows misdemeanor defendants to be absent from a plea proceeding. This supplements the existing reference to Rule 43(c).
Rule 24 - Trial Jurors
Subdivision (b) was amended to allow a challenge for cause to be made only prior to a juror being sworn. The previous language said 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 change was made because the language allowing a challenge for cause after a juror is sworn is inconsistent with current constitutional law because this is the very point when jeopardy attaches.
Subdivision (c) was amended to allow retention of alternate jurors after the jury retires to deliberate.
This change is based on the language of the federal rule. The previous language allowed alternates to be retained if the parties agreed. The amendment was made because allowing the court the discretion to retain alternate jurors can be advantageous, especially in long and complicated cases. The new language requires the court to “ensure that a retained alternate does not discuss the case with anyone until that alternate replaces a juror or is discharged.” The court also “must instruct the jury to begin its deliberations anew” if an alternate replaces a juror after deliberations begin.
Rule 32 - Sentence and Judgment
A new subdivision (d) was adopted to provide guidance for the sentencing of violent offenders.
The change is intended to make it clear that courts must refer to Administrative Rule 51 when sentencing violent offenders. Among other things, Rule 51 requires courts to consult the most recent federal mortality tables when making sentence calculations in life with the possibility of parole cases.
Rule 32.1 - Deferred Imposition of Sentence
Rule 32.1 was amended to delete language making the rule applicable only in misdemeanor and infraction cases. Under the amendments, the rule applies in all cases in which an order deferring imposition of sentence is entered. In other words, felony deferred cases will now be treated the same as infraction and misdemeanor cases, with automatic dismissals as provided in the rule.
When the rule was first drafted, felony cases were not included because felonies are monitored by a probation officer and it was thought that the probation officer would make the motion for dismissal. The change extending automatic dismissal to felonies was made in part because it is more efficient and saves work.
Now that automatic dismissal applies to all deferred imposition cases, everyone involved in these cases needs to be aware of the hard deadline for modifying orders under Rule 32.1: “no later than 60 days after expiration or termination of probation.”
Rule 32.2 - Pretrial Diversion
Subdivision (a) was amended to specify that only fees or costs allowed by law may be paid to (or through) the court. A further amendment allows the parties to agree that the defendant pay additional amounts to others as a condition of a pretrial diversion agreement.
This change was made so that it would be clear that the court cannot process "non-standard" fees in pretrial diversion cases. Only fees allowed by statute can be processed through the Odyssey system and court staff are not allowed to accept other fees.
The amendment, however, takes into account situations where it is in the interest of all parties for the defendant to make a payment not provided for in statute. The amended rule allows diversion agreements to require “the defendant pay to others additional amounts as agreed upon by the parties.”
Rule 35 - Correcting or Reducing a Sentence
Subdivision (a) was amended to clarify that a sentencing court can and should correct an illegal sentence whenever it becomes aware of it. The amended rule language states that “[t]he sentencing court shall correct an illegal sentence at any time.” The change was considered necessary because some courts have not acted to correct illegal sentences because they believe there is a deadline for correction of such sentences or that a sentencing court can lose jurisdiction to correct its own illegal sentence.
North Dakota Supreme Court Administrative Rules
Rule 50 - Court Interpreter Qualifications and Procedures
Section 2 was amended to allow interpreters to be provided at no cost to parties and witnesses in sexual assault restraining order cases.
Rule 52 - Contemporaneous Transmission by Reliable Electronic Means
A new Section 5 was adopted to provide a procedure for hearings by reliable electronic means in revocation of probation proceedings involving out of state offenders.
The amendments are intended to make it clear that, when a probation revocation petition has been issued for a probationer who is incarcerated in another state, a North Dakota district court may conduct a revocation hearing by reliable electronic means.