Joint Procedure Committee Meeting
Scheduled on Thursday, January 27, 1972 @ 1:30 PM
MINUTES OF MEETING
Joint Committee of the Judicial Council
and the State Bar Association
for the Adoption of Rules of Criminal Procedure
January 27-28-29, 1972
The meeting was called to order by Judge Erickstad, Chairman, at 1:30 p.m., Thursday, January 27. Roll was called, with the following members present:
Hon. Ralph J. Erickstad
Hon. Gerald G. Glaser
Hon. Norbert J. Muggli
Hon. Wm. S. Murray
Hon. Harry J. Pearce
Mr. Roger Persinger
Mr. John G. Shaft
Hon. Kirk Smith
Staff present:
Mr. Charles M. Travis, Criminal Code Reviser
Mr. Joseph H. Louwagie, Assistant Code Reviser
Miss Donna Fischer, Secretary
Committee members John A. Graham and Paul M. Sand arrived after roll was called.
Members absent:
Hon. Eugene A. Burdick
Hon. Roy A. Ilvedson
Hon. James Morris
Mr. Robert L. Vogel
MINUTES OF PREVIOUS MEETING:
Judge Murray MOVED the Committee waive reading the Minutes and that the minutes be accepted as submitted. This was SECONDED by Mr. Shaft. Mr. Travis suggested that there were some minor style corrections which he would bring to the Committee's attention later. The approval of minutes was TABLED at this time (see page 6).
ADMINISTRATIVE REMARKS:
Mr. Travis addressed the Committee with reference to the Table of Rules that was distributed and the suggested change to Rule 11 by Judge Burdick.
Judge Erickstad turned the chair over to Mr. Persinger.
RULE 1:
Since Judge Burdick was not present, Mr. Shaft was asked to present Rule 1. Rule 1 and the Explanatory Notes to Rule 1 were read for the record:
"Rule 1. Scope.
"Except as otherwise provided by statute and in Rule 54, these rules govern the practice and procedure in all criminal proceedings in the district courts and, so far as applicable, in all other courts, including prosecutions for violations of municipal ordinances."
"Explanatory Notes.
"Rule 1 defines the scope of the Criminal Rules with reference made to the express limitations as provided in Rule 54. These Rules are designed primarily for the district courts, but have been designed in such a way that they provide the necessary machinery for all state courts having original jurisdiction. This includes the municipal courts with respect to prosecutions for violations of municipal ordinances. The Rules apply to "all criminal proceedings", and the term "proceedings" includes "all possible steps in the case from its inception to judgment and sentence" (see U.S. v. Choate, C.A. 5th, 1960, 276 F2d 724, 727 n. 7.). Although the vast Bulk of statutory procedure is superseded by the Rules, those deemed to be without the scope of the Rule but necessary in addition thereto are retained (see tables ___ and ___, page ___)."
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Judge Glaser asked Judge Pearce for his reaction to Rule 1 insofar as its applicability to municipal courts.
Judge Pearce stated that Rule 1 appeared to be properly drafted for the municipal court system with the following exception: It is difficult to be too precise in view of the fact that one objective of the municipal court system is to establish a statutory scheme whereby ordinance violations not resulting in confinement can be handled administratively and not proceed as criminal proceedings. That has been taken into account in Proposed Rule 54. The practical problem as Judge Pearce saw it was the effect the Rule would have on municipal courts in cities with a population of less than 3,000, which by state law do not require a licensed attorney as municipal judge. The result of applying these Rules to such cities would be chaos. Judge Pearce said that in his opinion, the only solution was for the legislature to enact a territorial system wherein the municipal court system is abolished in cities with a population of 3,000 or less, in which there is presently no requirement that the judge be a licensed attorney. He suggested that perhaps the Committee should attempt to limit the application of these Rules to only those municipal courts which are presided over by a licensed attorney, and that perhaps that could be done by limiting their application to those cities with population in excess of 3,000.
Judge Erickstad pointed out that it is better that a judge, though untrained in the law, have something to refer to. He expressed the opinion that though the Rules may be complicated, they are better than nothing.
Judge Pearce stated that in his opinion the rules were good, but that he envisioned some problems, especially in small towns, where the rules would serve as an obstruction to the municipal judge. He stated as an example Rule 4, which requires the approval of the complaint by the prosecuting attorney before a warrant for arrest can issue.
Judge Erickstad responded by stating that perhaps this is good, because it would force the municipalities to take proper action when they are authorized to issue the warrant.
Roger Persinger, as acting chairman, noted that the language of Rule 1 as it is presented to the Committee differs from the language as previously adopted. He indicated that he would entertain a motion for the adoption of Rule 1 as presented to the Committee.
Paul Sand MOVED the adoption of Rule 1. Judge Murray SECONDED. There was no discussion. The vote was unanimous. The motion CARRIED and the rule was adopted as read. (See Appendix A for final form of Rule I as adopted)
Mr. Shaft MOVED adoption of the Explanatory Note to Rule 1.SECONDED by Judge Murray.
John Shaft questioned the status of the explanatory notes. It was explained that the explanatory notes would be adopted by the Committee as its product. Therefore, the Committee should either adopt, reject, change, or correct the explanatory notes where necessary.
It was pointed out that the Explanatory Notes to Rule 1 contained reference to Sections 27-02-08, and 27-02-10, NDCC. These sections of the Code are the enabling statutes which give the Supreme Court the power to promulgate rules. It was determined that reference to these sections was unnecessary under Rules 1 and 2. Therefore, these references were deleted.
It was pointed out that handling of the pertinent statutes is as follows; a general category, entitled "Statutes Affected", with subcategories statutes "Retained", statutes "Superseded", "Definitions Retained", and "Definitions Superseded".
Judge Smith noted that he had had some difficulty in reviewing the first twenty rules because there was lacking a sheet to indicate changes in the rules from the rule as previously adopted.
Judge Pearce pointed out that Chapter 33 of the NDCC should be taken into consideration when determining statutes affected and superseded. He noted that Section 33-12-01 (Criminal action--How prosecuted) should be superseded. He further pointed out that there are specific provisions in Title 33 dealing with the justice court and in Title 40 dealing with municipal courts which are relevant and should necessarily be superseded. It was suggested that these Chapters be reviewed for any additional sections which may be affected.
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Some discussion followed concerning the subheading "Statutes Retained". It was pointed out that it should not be the function of the Committee to retain statutes which may at some later time be changed by the legislature. It was decided that rather than refer to "Statutes Retained", it would be better to note "Statutes Considered", to serve as a cross-reference for practicing attorney when dealing with the specific rule.
Judge Pearce suggested that perhaps Section 29-01-30 (To what this title applies), which refers to criminal judicial procedure, should be superseded, a well as Section 29-01-31 (Common law prevails when title silent). He also suggested that Section 40-18-11 (How proceedings in criminal cases not provided for in this chapter to be governed), which provides that "In all cases not specifically provided for in this chapter, the process and proceedings in the court of a municipal judge shall be governed by the provisions of the laws of this state regulating proceedings in justices' courts in either civil or criminal cases", should be superseded. He further suggested that Section 29-01-31 should be included in the Rule. It provides that in instances where a particular facet of criminal law is not taken into account by this section of the Code (NDCC), that the common law would then apply. This is in essence what Rule 1 provides.
Judge Glaser questioned the disposition of those cases in which neither the rule nor the statute applies. In this situation, where would one go for procedural considerations--would it be the common law?
Judge Erickstad noted that there was a general construction statute in effect, that is, Section 1-01-05 (Evidence of common law).
Acting Chairman Persinger inquired of Judge Pearce whether he wished to propose in the form of an amended motion inclusion of the statutes he noted as superseded.
Judge Pearce then MOVED to have Sections 29-01-30, 29-01-31, 40-18-11, and 33-12-01 included in "Statutes Superseded" by Rule 1. Mr. Shaft as originator of the motion accepted the substitute motion. The motion was seconded. Judge Pearce pointed out that by including these four statutes, the rule would be covering the district courts, the county courts of increased jurisdiction, the county courts and the municipal courts.
Paul Sand suggested that possibly Section 29-01-31 should not be superseded unless the Committee was planning to include the concept of that section in a rule. He suggested it would be safer to leave this section in effect until it was included in a rule at a later time.
It was pointed out that Judge Pearce's difficulty with Section 29-01-31 was due to the language "not specifically provided for in this title". It is unduly restrictive and seemingly implies that everything is governed or related to Title 29. Paul Sand suggested including in the explanatory note language to the effect that provisions of Section 29-01-31 were specifically taken out so that at no time could the common law be applied in criminal cases. It was further suggested that a special subcommittee headed by Judge Pearce prepare the appropriate language, with the assistance of the staff, to achieve the desired effect.
Judge Smith noted with respect to the explanatory notes that while they had been prepared by the staff, it was the individual responsibility of the committee member whose rule the explanatory note amplifies to review the notes and add, delete, or accept as appropriate.
The RECORD shows that Mr. Graham is now in attendance.
Judge Muggli suggested that in addition to the two enabling statutes mentioned, that is, Section 27-02-08 and Section 27-02-10, that Section 27-02-09 was also applicable. It was pointed out, however, that these statutes are deleted from the Explanatory Note.
Question was called on the previous motion, that is, to adopt the explanatory notes, and in doing so, to delete Sections 27-02-08 and 27-02-10 from consideration and to add Sections 29-01-30, 29-01-31, 40-18-11, and 33-12-01 as statutes superseded. The vote was unanimous in favor of the motion and the motion CARRIED.
The Committee RECESSED for coffee.
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On reconvening, Judge Smith cited for the proposition of what applies wit respect to common law Brasier v. Jeary, 256 Fed.2d 474, 67 ALR 2d 1096 (1958).
RULE 2:
In the absence of Judge Burdick, John Shaft read Rule 2 for final confirmation by the Committee. The Rule as proposed follows:
"Rule 2. Purpose and Construction.
"These rules are intended to provide for the just determination of every *action or criminal* proceeding. They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay."
Mr. Shaft then read the Explanatory Notes for Rule 2, as follows:
"Rule 2 was adapted from Rule 2 of the Federal Rules of Criminal Procedure. Rule 2 is similar to the last sentence of Rule 1 of the NDRCivP, which states, "They [the NDRCivP] shall be construed to secure the just, speedy and inexpensive determination of every action."
"Rule 2 requires that the Rules be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.
"These Rules have the force and effect of law. All prior conflicting statutes and decisions must give way to these Rules, but no substantive right given by law is divested or taken away by them (27-02-08 and 27-02-10 NDCC). The Rules are not to be applied ritualistically, but are to be construed in the flexible spirit contemplated by law. (U.S. v. Rizzo, C.A. 7th, 1966, 362 F.2d 97, 99.)"
Acting Chairman Persinger noted that Section 27-02-08 and Section 27-02-10 should be deleted from consideration under Rule 2, as was done under Rule 1. It was also noted that there were no changes in Rule 2 from the format as previously adopted.
John Shaft MOVED the adoption of Rule 2, together with the Explanatory Note, with the deletion of reference to Sections 27-02-08 and 27-02-10, the enabling statutes for the court, under "Statutes Affected". Mr. Sand SECONDED the motion. For clarification, he noted that the motion included the words "action or" following the word "criminal" in line 2 of the Rule, which had been accidentally deleted.
It was suggested that in keeping with the previous suggestion of Judge Muggli that Section 27-02-09 would apply, as well, when reference is made to Sections 27-02-08 and 27-02-10. Therefore, where reference is made to these sections in the explanatory notes, the word "and" should be struck and the word "through" should be substituted to satisfy this requirement.
There was some discussion concerning the citing of cases in the explanatory notes, specifically, reference was made to United States v. Rizzo, as cited in the Explanatory Notes to Rule 2. Judge Muggli questioned the need for citing cases. It was decided by the Committee that they should retain the practice of citing cases to define the courts interpretation of the various rules.
John Shaft questioned the disposition of the explanatory notes when adopted by the Committee. Judge Erickstad stated that it was his hope that the notes would be retained with the rules and ultimately would be published along with the Rules.
Question was called, vote was favorable, and Rule 2 is ADOPTED by the Committee with the Explanatory Notes,, noting the above change. (See Appendix A for final form of Rule 2 as adopted)
RULE 3:
Judge Glaser read Rule 3 and the Explanatory Notes, as follows;
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"Rule 3. The Complaint.
"(a) General.
The complaint is a written statement of the essential facts constituting the offense charged. It shall be made upon oath before a magistrate of this state who may examine on oath the complainant and other witnesses as well as receive any affidavit filed with the complaint. If the magistrate examines the complainant or other witnesses on oath he must cause their statements to be reduced to writing and to be subscribed by the persons making them.
"(b) Amendment.
The magistrate may permit a complaint to be amended at any time before a finding or verdict if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced."
"Explanatory Note--Rule 3
"Rule 3 follows in substance Rule 3 FRCrimP and controls with respect to all complaints in criminal cases issued by magistrates within the state of North Dakota.
"The procedure for the issuance of a complaint is similar to the Federal Rule from the standpoint that the complaint may be issued only upon oath before the magistrate. Chapter 29-01-13(5) NDCC defined "magistrate" as, an officer authorized by law to issue a warrant for the arrest of a person charged with a crime or public offense.
"Rule 3(a) is more specific than the Federal Rule insofar as it requires the statements of other persons to be both sworn to and reduced to writing while reserving in the magistrate the right to question the complainant. When considered in light of Rule 4(a) of the Federal Rules, the addition permits the magistrate to determine if in fact the probable cause exists before he issues the warrant (see Giordinello v. U.S., 357 U.S. 480).
"Rule 3(b) is based on and is almost identical to Rule 7(e) NDRCrimP and allows amendment if not prejudicial to the substantive rights of the defendant. Rule 3 FRCrimP has no similar provision to 3(b) NDRCrimP. Since complaints are often hastily drawn, they often contain inadequacies in construction. Courts generally favor the liberal amendment of complaints (42 C.J.S. 928) in order that they will not be struck down for failing to comply with the statutory requirements."
The following corrections in the Explanatory Note are noted; that the word "Chapter" be rewritten to read "Section" in the second paragraph, line 3, and the word "defined" be changed to read "defines", in that same sentence.
Judge Glaser MOVED the adoption of Rule 3 together with the Explanatory Notes, as corrected. This was SECONDED by Judge Murray.
The RECORD notes that the Committee heard recorded comments of Judge Burdick. (See Appendix B)
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Judge Erickstad questioned whether the word "retained" would be continued in usage. He also questioned whether the Committee would examine each of the sections referred to or accept the work of the author of the various rules. It was his position that once the statute is classified as superseded, it would be hard to bring it back into existence. Therefore, it was suggested that the author of each rule brief the Committee on the reasons for retaining or superseding the various statutes. The Committee would then make the final decision.
Judge Glaser then referred to Section 29-05-03 (Magistrate may examine complainant) and explained that it referred to essentially the same material as the Rule, except for the last sentence which requires the magistrate to notify immediately the state's attorney, who could then examine the complainant and other persons and make recommendations as to further procedure. It was suggested that this procedure is archaic and no longer in practice in North Dakota.
It was pointed out that Rule 3 contained the same language as previously adopted, except for the insertion of title headings in subsections (a) and (b) to be consistent with the form and style of the rest of the rules.
It was noted that use of the word "issuance" in describing the process of a complaint in the explanatory notes should be avoided.
There was some discussion concerning procedure for the process on complaint. Judge Muggli noted that Section 29-05-02 (Who must make complaint) required that the complaint be made before a magistrate. It was pointed out that the process by the magistrate is really the acceptance of a complaint, in that he is the one who signs the complaint after the swearing of a complainant.
Reference was made to Section 29-05-31 (Uniform traffic complaint and summons).
Judge Muggli suggested an amendment to change the word "issuance" to "filing".
Judge Smith noted that the function of receiving and filing or accepting the filing of complaint prior to the issuance of a warrant is covered in Section 18 of the North Dakota Constitution and the Fourth Amendment of the U.S. Constitution.
Mr. Travis noted with respect to the word "issuance", that Black's Law Dictionary defines the word issue as "process issues from a court", and therefore it would be proper terminology to be used in this context.
Judge Erickstad suggested that the word "issuance" be changed to "acceptance", indicating that the complaint should be accepted by someone. Mr. Sand suggested use of the word "processing", and Judge Glaser suggested use of the word "authorize".
Judge Muggli withdrew his suggestion to change the word "issuance" to "filing".
Judge Smith MOVED that the Committee change the word issuance to reception, so that the sentence would read;
"The procedure for the reception of a complaint is similar to the Federal rule from the standpoint that the complaint may be received and filed only upon oath before the magistrate."
SECOND by Mr. Sand. The motion to amend was agreeable to Judge Glaser, originator of the motion to adopt Rule 3 and Explanatory Note.
Acting Chairman Persinger noted for the record that the amended sentence of the Explanatory Note, second paragraph, reads as follows: "The procedure for the reception of a complaint is similar to the Federal rule from the standpoint that the complaint may be received and filed only upon oath before the magistrate."
Judge Glaser noted that Section 29-01-13(l), which defines "complaint", is superseded.
It was suggested by Judge Pearce that a reference to the "Rules of Procedure for Trials of Minor Offenses for the United States Magistrates" (effective January, 1971) should be included in the sources to the Explanatory Notes.
Judge Glaser discussed the statutes affected by the Rule. He explained that Sections 29-02-06 and 29-02-07 dealt with "threatening offenses". A discussion followed, in which Judge Glaser questioned the use of the word "retained". He questioned whether a table of rules should be established referring to the statutes as "retained" or "superseded".
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Mr. Sand, while agreeing that reference to statutes as "retained" should be deleted from the explanatory notes, commended Mr. Travis and his staff for the excellent job of bringing to the attention of the Rules Committee the statutes which are affected by the various proposed rules. He noted that it was the work of the Committee to decide which statutes should in fact be superseded.
Reference was made to the North Dakota Rules of Civil Procedure, and it was suggested that this Committee adopt the practice of referring to the statutes only as superseded, as was done in the civil rules. The staff was instructed to continue pointing out all the statutes pertaining to the various rules, and that the Rules Committee would make the ultimate decision on whether the statutes should be superseded or not.
There ensued considerable discussion on the word "retained". It was decided that henceforth the staff would use "statutes considered" to designate those statutes having pertinent relevance to the correlated rule.
Two alternatives were presented. One, by Mr. Travis, was the suggestion that the purpose of having the category "statutes retained"--regardless of the nomenclature--is that the practitioner would have a source of reference or cross-reference in dealing with the various rules. Judge Glaser pointed out, on the other hand, that by including a statutory reference in the rule, the practitioner would be required to refer to the cited statutes each time he used the rule to insure that he is using the rule correctly.
Mr. Travis requested the Committee's guidance on procedure for handling definitions. Judge Erickstad suggested that definitions be handled in the same manner as other statutes--that those not superseded would be "considered" when applicable.
Mr. Glaser suggested that in trying to include too many things, the staff might be trying to be "too helpful", that is, they would be giving more information than the practitioner really needs and it would be better to give the practitioner more credit.
MOTION was made to recess. It was SECONDED and the Committee RECESSED until 9:00 a.m., Friday, January 28.
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The Committee reconvened Friday morning with the following members present:
Hon. Ralph J. Erickstad, Chairman
Hon. Gerald G. Glaser
Hon. Roy A. Ilvedson (arrived 10:00 a.m.)
Hon. Norbert J. Muggli
Hon. William S. Murray
Hon. Harry J. Pearce
Mr. Roger Persinger, present as Acting Chairman until 10:30
Mr. Paul M. Sand
Mr. John G. Shaft
Hon. Kirk Smith
Staff present:
Mr. Charles M. Travis, Criminal Code Reviser
Mr. Joseph H. Louwagie, Assistant Code Reviser
Miss Donna Fischer, Secretary
Members absent:
Hon. Eugene A. Burdick
Mr. John A. Graham
Hon. James Morris
Mr. Robert L. Vogel
MINUTES OF PREVIOUS MEETING:
Mr. Travis called the Committee's attention to the minutes of November 18-19-20, 1971, which had been postponed for consideration pending any corrections. Mr. Travis noted that the changes were only typographical affecting style and there were no changes affecting substantive matter.
Judge Muggli MOVED the adoption of the minutes as corrected to reflect style changes, where necessary, by the staff. The motion was SECONDED by Paul Sand. A vote was called and the motion CARRIED. (See Appendix C, Errata Sheet)
MISCELLANEOUS:
Mr. Travis noted that he had received a letter from Leonard Bucklin of the State Bar Association in which Mr. Bucklin indicated that he had reviewed the first twenty rules and was very favorably impressed.
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CONSIDERATION OF RULE 3 CONTINUED:
Continuing from the previous day's discussion on Rule 3, Statutes Affected, Judge Glaser noted Section 29-05-01 (What complaint must state). He suggested that the statute be retained though he had difficulty with some of the language in it. He noted that the rule itself was very basic in that it simply states that "The complaint is a written statement of the essential facts constituting the offense charged."
Judge Erickstad suggested that Section 29-05-01 doesn't specify the requirements as set forth in the Giordenello case [Giordenello v. United States, 357 U.S. 480 (1958)].
Judge Muggli questioned whether it was the Committee's intent to include a set of forms, as was done in the civil rules, noting that the first page in the forms of the NDRCivP states: "The following forms are intended for illustration only. They are limited in number. No attempt is made to furnish a manual of forms." The Committee seemed to feel that it was not necessary to include a specified form.
Judge Erickstad suggested that the Committee direct the staff to provide a note in the Explanatory Note for Rule 3 to the effect that Sections 29-05-01 and 29-02-06 should be considered in light of the Rule and in light of the Giordenello case. It was further suggested that the following two state cases be included; State v. Erdman, 170 N.W. 2d 872 (1969), and State v. Whitley, Warden of the Wyoming State Prison (cite unknown).
Judge Glaser suggested that the note referring to Section 29-05-01 (What plaint must state) be set out just as a note in the Explanatory Note to Rule 3.
Judge Glaser then discussed Section 29-05-02 (Who must make complaint). He suggested that the statute be retained. There was no discussion contrary.
Section 29-05-04 (Accused arrested without warrant) was then introduced by Judge Glaser. It was his recommendation that this section be considered as a reference.
Section 29-05-05 (Witness other than complainant) was also recommended for retention*. There was no discussion contrary.
Section 29-05-31 (Uniform traffic complaint and summons) was recommended for consideration or reference. However, it was noted that under Rule 4(a)(2), this Section was superseded. It was later decided that Rule 4(a)(2) should not be applied to this section and therefore Section 29-05-31 should be retained (as "considered").
Definitions were considered next, that is, Section 12-01-04(12), which defines magistrate", and Section 29-01-14 (Who are magistrates). It was noted that in the table that was prepared (NDCC Statutes and Definitions Affected by Rules of Criminal Procedure), under "Definitions", Section 29-01-13(1) was incorrectly listed as 29-01-11(l), which was a typographical error and should be corrected.
The RECORD notes the arrival of Judge Ilvedson.
The Committee agreed that Sections 12-01-14(12) and 29-01-14 should be retained and that Section 29-01-13(l), definition of 'complaint', should be superseded.
Question was called on Rule 3, to adopt the Explanatory Note as well as the Rule. The vote was unanimous in favor and the motion CARRIED. (See Appendix A for final form of Rule 3 as adopted)
Judge Glaser assumed the position of Acting Chairman.
RULE 4:
Acting Chairman Glaser called the Committee's attention to Rule 4, Arrest Warrant or Summons upon Complaint, as proposed by John Shaft. He called upon Mr. Shaft to read the Rule, together with the Explanatory Note. The Rule as proposed follows:
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*Retained as "considered".
"Rule 4. Arrest Warrant or Summons Upon Complaint.
(a) issuance.
"(1) Warrant.
If it appears to the magistrate from the complaint, or from any affidavit filed with the complaint, that there is probable cause to believe that a criminal offense has been committed by the defendant, a warrant for the arrest of the defendant upon the complaint shall issue to any officer authorized by law to execute it. [Except as provided in ¶(a)(2).] The finding of probable cause shall be based upon substantial evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished. Before ruling on a request for a warrant, the magistrate may require the complainant to appear personally and may examine under oath the complainant and any other witness he may produce, in which case the proceedings shall be recorded by a court reporter or recording equipment. If the magistrate before whom the complaint is made is someone other than a person of the Supreme Court, district court, or county court of increased jurisdiction, he shall not issue a warrant until the complaint has been approved by the prosecuting attorney. It if appears to the magistrate from the complainant or other written evidence submitted to him that the accused is likely to abscond before the prosecuting attorney can approve the complaint, and the magistrate so certifies on the complaint, a warrant may issue without approval of the prosecuting attorney.
"(2) Summons.
If violence is not an element of the crime charged, a summons instead of a warrant shall issue if:
(a) The magistrate has reason to believe that the defendant will appear in response thereto,
(b) The defendant is a corporation, or
(c) Requested by the prosecuting attorney.
If violence is an element of the crime charged, the magistrate may, but need not issue a summons instead of a warrant.
The prosecuting attorney shall request a summons whenever he is satisfied that there is no substantial risk that the defendant will fail to appear in response thereto. In any case in which it is lawful for an officer to arrest a person with or without a warrant he may give such person a summons instead of arresting him.
"(3) Failure of Defendant to Appear after Summons.
If a defendant who has been duly summoned fails to appear or if there is reasonable cause to believe that he will fail to appear, a warrant of arrest shall issue. If a defendant corporation fails to appear after having been duly summoned, a plea of not guilty shall be entered by the magistrate if he is empowered to try the offense for which the summons was issued and he may proceed to trial and judgment without further process; if the magistrate is not so empowered he shall proceed as though the defendant had appeared.
"(4) Additional Warrants or Summonses.
More than one warrant or summons may issue on the same complaint.
(b) Form.
"(1) Warrant.
The warrant shall be in writing, in the name of the State of North Dakota, and be signed by the issuing magistrate with the title of his office. It shall state the date of issuance and the municipality or county where issued. It shall specify the name of the defendant or, if his name is unknown, any name or description by which he can be identified with reasonable certainty. It shall describe the offense charged against the defendant. It shall command that the defendant be arrested and brought before the nearest available magistrate. The warrant may also have endorsed upon it the amount of bail recommended or acceptable if the offense is bailable.
"(2) Summons.
The summons shall be in the same form as the warrant except that it shall summon the defendant to appear before the magistrate issuing it or another magistrate therein designated at a stated time and place and shall inform the defendant that if he fails to appear, a warrant for his arrest will issue.
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"Rule 4. Arrest Warrant or Summons Upon Complaint.
(c) Execution; Service.
"(I) Execution of Warrant.
The warrant shall be directed to all peace officers in this state and shall be executed only by a peace officer. It shall be executed by the arrest of the defendant and may be executed in any county of the state by any peace officer in the state. The officer need not have warrant in his possession at the time of the arrest, but if he has the warrant or a copy thereof at that time, he shall show it to the defendant immediately upon request. If the officer does not have the warrant or a copy thereof in his possession at the time of the arrest, he shall then inform the defendant of the offense charged and of the fact that warrant has been issued, and upon request he shall show the warrant a copy thereof to the defendant as soon as possible.
"(2) Service of Summons.
The summons shall be served in the manner provided for service of a summons in a civil action. It may be served by any person authorized to serve a summons in a civil action.
(d) Return.
"The officer executing a warrant shall make return thereof to the magistrate before whom the defendant is brought pursuant to Rule 5. At the request of the prosecuting attorney an unexecuted warrant shall be returned to the magistrate who issued it and who shall cancel it. On or before the return day the person to whom a summons is delivered for service shall make return thereof to the magistrate before whom the summons is returnable. At the request of the prosecuting attorney made while a complaint is pending, a warrant returned unexecuted and not canceled, or a summons returned unserved, or a duplicate thereof, may be delivered by the magistrate to a peace officer for execution or service.
(e) Defective Warrant or Summons; Amendment.
"No person arrested under a warrant or appearing in response to a summons shall be discharged from custody or dismissed because of any informality in the warrant or summons, but the warrant or summons may be amended so as to remedy the informality."
"Explanatory Note--Rule 4
"Rule 4(a) is adapted primarily from the Federal Rules of Criminal Procedure, Rule 4(a) of the Proposed Amendments of January, 1970. The most important aspect of Rule 4(a) is the provision that a warrant for arrest may issue under this rule only if it appears from the complaint, from an examination under oath, or from any affidavit filed with the complaint, that there is probable cause for the magistrate to believe that a criminal offense has been committed by the defendant. Subdivision (a) further provides that a warrant or summons may issue on the basis of hearsay evidence provided the magistrate has adequate reason to believe that the hearsay information is both credible (truthful) and reliable (accurate). These provisions are deemed to be declaratory of existing law. The probable cause provision must be read in light of the Fourth Amendment requirement. Note: See Giordenello v. U. S. (1958) 78 S.Ct. 1245, 1250, 357 U.S. 480, 483, 2 L.Ed. 2d 150, and Aguilar v. Texas (1964) 84 S.Ct. 1509, 1513 n.3, 378 U.S. 108, 112 n.3, 12 L.Ed. 2d 723. The provision for hearsay merely prescribes the standard of credibility and reliability. It does not attempt to identify the situations in which evidence in the complaint is in fact adequate to meet the twin tests of credibility and reliability. This is an issue which must be dealt with on a case to case basis, taking into account the unlimited variations and sources of information and the opportunity of the informant to perceive accurately the factual data which he furnishes. (See the Advisory Committee Notes of the Federal Rules of Criminal Procedure, Proposed Amendment January, 1970, page 7). Subdivision (a) makes clear that the magistrate may require the complainant to appear personally and may examine him or witnesses to determine whether probable cause exists. See the American Law Institute, Model Code Pre-Arraignment Procedure, T.D. No. 1, Sec. 6.03 (1966). If the magistrate does hear from the complainant
or witnesses, the testimony must be recorded. This is to insure that there exists an adequate basis for reviewing the propriety of the issuance of the warrant, if, for example, its issuance should be attacked upon a subsequent motion to suppress evidence seized incident to the arrest. Subdivision (a) is also intended to make it possible for the magistrate
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"Explanatory Note--Rule 4
"to issue a summons in lieu of an arrest warrant even though not requested to do so by the prosecuting attorney. The provision in 4(a) which requires the magistrate to issue a summons if requested to do so by the prosecuting attorney, is intended to require the magistrate to rely upon the representation by the prosecuting attorney, that a warrant is unnecessary and ought not to attempt to exercise an independent judgment about the propriety of using a summons where such a representation is made. Subsection (a) also provides that where the magistrate is someone other than a judge of the Supreme Court, district court, or county court of increased jurisdiction, he shall not issue a warrant until the complaint has been approved by the prosecuting attorney. This provision is intended to guard against non-law trained magistrates, who because of their lack of legal expertise may have a problem with the requirement of probable cause. Subsection (a), however, does provide that a warrant may be issued by such magistrate without the approval of the prosecuting attorney where the magistrate reasonably believes that the accused is likely to abscond the jurisdiction before the prosecuting attorney can approve the complaint, provided the magistrate so certifies on the complaint.
"Subsection 4(a)(2) provides the magistrate with some latitude in the exercise of discretion to issue the summons in cases where he reasonably believes that the defendant will appear in response to the summons. Subsection (a)(2) also provides for three instances in which the magistrate is required to issue a summons rather than a complaint. These are; (a) where the defendant is a corporation, or (b) where this is requested by the prosecuting attorney, and (c) where the offense charged does not involve violence. The provision for giving the judicial officer discretion in issuing a summons in subsection (a)(2)(iii), where he has reason to believe that the defendant will appear in response, has been taken essentially from the Alaska Rules of Civil Procedure and is also similar to the provision of the Louisiana Code of Criminal Procedure, Art. 209. Other jurisdictions similarly provide the judicial officer with discretion, however, they do not state any standard upon which he is to proceed in his permissive issuance of a summons. (Note the Model Code of Pre-Arraignment Procedure Sec. 6.04(l) T.D. #1 (1966), also the January 1970 Proposed Amendments to the Federal Rules of Criminal Procedure, Rule 4(a); also Montana Rev. Code Sections 95 to 603.
"The provision of subsection (a)(2), which provides for mandatory issuance of a summons in lieu of a warrant, is intended to encourage the use of summons and also is in keeping with the intent and provision of the Bail Reform Act of 1966. It has been shown that service of a summons accomplishes a more equitable result in that it reduces the amount of paper work, time consumed and is economically more feasible both to the accused as well as to the jurisdiction seeking to impose process. The provision for limiting mandatory issuance of a summons to offenses not involving violence is designed to keep the accused, for whom there is probable cause to believe committed an offense involving violence, off the streets and away from society so that he will not commit another violent act before the court can pass judgment. Subsection (a)(2)(i) provides that a summons will issue to a corporate defendant because as a practical matter it is not literally possible to make an arrest. Furthermore, the probability is that the corporation will appear and that the crime is not one of violence. However, as a practical matter it would be difficult to issue anything but a summons in cases involving corporate violations.
"Subsection (a)(2)(ii) provides for the mandatory issuance of a summons instead of a warrant when such is requested by the prosecuting attorney. This provision reflects the fact that in the ordinary case only the prosecutor will have sufficient information upon which to base a judgment whether the summons or warrant is appropriate. It is also recognized that in isolated instances there may be some danger in giving this power to a judge, particularly those judges in minor courts who may not be lawyers. The provision requiring that the prosecuting attorney request a summons whenever he is satisfied that there is no substantial risk that the defendant will fail to appear, reflects the intention to utilize summons whenever possible rather than arrest. This provision is also intended to place a burden upon the prosecutor to utilize this form of process whenever he, and only he, is in a position to be apprised of the facts.
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"Explanatory Note--Rule 4
"Section (a)(3) Failure of Defendant to Appear After Summons. This subsection provides a remedy in cases where the defendant fails to answer the summons. It follows the Federal Rule of Criminal Procedure 4(a), the Model Code of Pre-Arraignment Procedure, Sec. 6.04 (4) T.D. #1 (1966), Federal Rule of Criminal Procedure 4(a), Proposed Amendment, 1/70 Preliminary Draft, and the Colorado Rules of Criminal Procedure 4.1, which provide that in case the summonee fails to appear in response to the summons, the warrant for his arrest shall issue. This subsection also provides for anticipatory remedy where there is failure of the summonee to appear. Here, it follows the Alaska Rules of Criminal Procedure 4(a)(3) and the New Jersey Rules of Court 3:3-1 (b) which provide for an anticipatory relief where there is reasonable cause to believe that the summonee will fail to appear. It should be noted that failure to respond to a summons is not contempt of court, but is ground for issuing a warrant.
"Subsection (a)(4) Additional Warrants or Summonses. This subsection provides for the issuance of more than one warrant or summons on the same complaint. The provision for issuance of additional warrants on the same complaint embodies the practice provided in the Federal Rules of Criminal Procedure 4(a), The Federal Rules of Criminal Procedure, 4(a) Proposed Amendment 1970 Preliminary Draft, the Alaska Rules of Criminal Procedure 4(a)(4), the Colorado Rules of Criminal Procedure 4(a) and the New Jersey Rules of Court 3:3-1(c). It is practical that when a complaint names several defendants it may be desirable to issue separate warrants to each defendant in order to facilitate service and return, especially if the defendants are apprehended at different times and places.
"Rule 4(b)(1) describes the form of the warrant. The provision in this subsection requires that the warrant be in writing, that it be in the name of the State of North Dakota, and that it be signed by the issuing magistrate with the title of his office. This differs from the Federal Rule in that the Federal Rule does not provide for the warrant to be in writing nor does it provide that it be in the name of the jurisdiction. The Federal Rule further differs from the North Dakota Rule in that the Federal Rule does not require that the signature of the issuing officer bear that officer's title, nor does it state the date when issued and the municipality or county where issued. The provision for the issuance of warrant contemplates that the warrant will be issued in counties other than where the offense occurred. While the Federal Rules don't provide for the warrant to be in writing, it may be inferred from the other requirements of the warrant that this requirement seems unnecessary. But neither is the reason for it to be deleted. The provision for the warrant to be in the name of the State of North Dakota or in the name of a municipality, if the violation of a municipal ordinance is charged, follows the Montana Rev. Code Sec. 95-603(d) and is consistent with these rules in providing for the issuance of a warrant for violations of municipal ordinances which are deemed criminal in nature. The language which requires that the warrant specify the name of the defendant is in keeping with Section 29-05-08. However, the Rule deviates from the statute in that it permits a description by which the defendant can be reasonably identified. The provision for description of the offense charged also is in keeping with Section 29-05-08, which satisfies the constitutional requirement that notice be given to the defendant as to the offense with which he is charged. Final provision of this subsection relating to bail indicates that bail may be endorsed upon the warrant. The provision for bail to be included in the warrant reflects the attitude that the magistrate issuing the warrant is in a better position to determine the bail requirement than would be the nearest available magistrate to whom the defendant is brought, if he is not the issuing magistrate. This permissive inclusion of suggested bail reflects the extent to which the issuing magistrate is able to make a determination for bail. The requirement that upon arrest the defendant be brought before the nearest available magistrate is similar to the criminal rules of Alaska. This provision differs from the federal rules in that the federal rules allow production before a magistrate outside the district where the warrant was issued only if the arrest is outside the state and over a hundred miles from the place of issuance.
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"Explanatory Note--Rule 4
"Subsection 4(b)(2), Summons, follows the Alaska Rules and provides that a summons will be in the same form as a warrant, that is, in writing signed by the magistrate who issued it, etc. See 4(b)(1). A summons also states that failure to respond to the summons will establish grounds for the issuance of a warrant. The failure to respond is not considered contempt of court.
"Subsection 4(c) Execution or Service.
(1) Execution of Warrant. This subsection directs that the warrant shall be directed to all peace officers in this state and further provides for its execution. The rule is similar to Federal Rules of Criminal Procedure
Rule 4(c)(3). The Proposed Amendment of January, 1970 makes no change in the rule. The provision is also similar to Alaska, Colorado, Maine and the New Jersey provisions. The provision that the arresting officer need not have the warrant in his possession at the time of the arrest is rendered necessary by the fact that a fugitive may be discovered and apprehended by any officer. It is impossible for a warrant to be in the possession of every officer who is searching for a fugitive or who unexpectedly might find himself in a position to apprehend a fugitive. The rule sets forth the customary practice in such matters, which is in the sanction of the court.
"It would be a strong proposition in an ordinary felony case to say that a fugitive from justice for whom a capis or warrant was outstanding could not be apprehended until the apprehending officer had physical possession of the capis or the warrant. If such were the law, criminals could circulate freely from one end of the land to the other, because they could always keep ahead of an officer with the warrant."
In Re Kosopud, N.D. Ohio, 272 Fed. 330, 336. This rule, however, safeguards the defendant's rights in such cases.
"Subsection 4(c)(2) Service of Summons. Service of the summons under this rule is substantially the same as in civil actions under the North Dakota Rules of Civil Procedure Rule 4(d)(1). This rule provides essentially the same requirements as Federal Rule 4(c)(3). Provisions for ease of service in the case of a summons reflects the fact that the individual's right to remain at liberty is not infringed.
"Rule 4(d) Return. This rule governs the return of the warrant or summons and is essentially the same as the Federal Rule 4. The return is not conclusive and an error in the return does not void the warrant, where no one was misled thereby, and facts stated in the return will not be accepted where testimony shows them to be untrue. See Gilbert v. United States, C.A. 9th, 1961, 291 F. 2d 586. The rule provides; that in the case of an unexecuted warrant and upon request of the prosecuting attorney, the warrant shall be returned to the magistrate who issued it for cancellation. The rule further provides; that a person to whom the summons was delivered shall appear on or before the return date stated on the face of the summons. The final portion of Rule 4(d) enables the reissuance, upon request of the prosecuting attorney, of warrants which have been initially returned unexecuted but which had not been cancelled, to be delivered to a peace officer for execution or service.
"Rule 4(e) Defective Warrant or Summons; Amendment. This subsection provides a remedy in cases where the warrant or summons is defective. It allows the prosecution to cure a defect which is deemed an informality in the warrant. There shall, however, be dismissal where the warrant is not sufficient on its face. The language in this rule essentially follows Florida Rules of Criminal Procedure 1.121 (c), Montana Rev. Codes Sec. 91-605, New Jersey Rules of Court 3:3-4(a), and the Pennsylvania Rules of Criminal Procedure 114. The National Conference of Commissioners on Uniform State Rules recommended this subsection be deleted."
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Following a reading of the Rule and the Explanatory Note, Mr. Shaft MOVED the adoption of the Rule together with the Explanatory Note. Acting Chairman Glaser questioned the extent of the changes in the proposed Rule as from the Rule as previously adopted. It was noted that in 4(a), the change was the inclusion of language dealing with probable cause based upon substantial evidence, which may be hearsay, in whole or in part. It was noted that this language came from the "Preliminary Draft of Proposed Amendments to the Federal Rules of Criminal Procedure..." (January, 1970).
Mr. Shaft pointed out for the Committee's benefit an article from the Association of the Bar of the City of New York regarding the Proposed Changes to the Federal Rules of Criminal Procedure, dated October, 1971. In the article, reference is made to this specific change; that is, probable cause "shall be based upon substantial evidence", noting that the reference to "substantial evidence" is poor usage because "substantial" doesn't have a true meaning. The record notes reference to this article from the magazine of the Bar of the City of New York, publication of October, 1971, which is a report of their Committee on the "Preliminary Draft of Proposed Amendments to the Federal Rules of Criminal Procedure of the United States District Courts", at page 58 (see page 9 of Minutes).
Another change to Rule 4(a) was the inclusion of the sentence; "Before ruling on a request for a warrant, the magistrate may require the complainant to appear personally and may examine under oath the complainant and any other witness he may produce in which case the proceedings shall be reported by a court reporter or recording equipment." It was also noted that there was a style change by Judge Burdick in the first line of the first sentence, which changes the language "from an affidavit or affidavits" to read "from any affidavit". Judge Smith suggested changing in the first line, the "or" to read "and", so the sentence would then read, "If it appears to the magistrate from the complaint, and from any affidavit..."
Judge Erickstad stated that Judiciary 'B' Committee was engaged in a consideration of similar subject matter which he felt was substantive rather than procedural in nature. Judge Erickstad noted for the Committee's benefit that Judiciary 'B' is a Committee of the Legislature which has been established for the purpose of reviewing the substantive criminal law of North Dakota.
John Shaft made reference to a letter from Leonard Bucklin, in which Mr. Bucklin made comments to the Rules as submitted, specifically, Rule 4(a)(1). He referred to the sentence beginning, "If the magistrate before whom the complaint is made is someone other than a judge of the Supreme Court, district court, or county court of increased jurisdiction," and suggested including the language, "or judge of municipal court who has been admitted to practice law in this state."
Judge Pearce commented on Mr. Bucklin's recommendation, stating that he favors such a provision. He suggested the addition of language such as, "or judges of lesser courts licensed to practice law in the State of North Dakota".
Judge Erickstad suggested eliminating reference to the individual judges and including language such as, "if the magistrate before whom the complaint is made is someone other than a person admitted to practice law in the state". This language would make it mandatory that the person be learned in the law, regardless of the court.
Judge Smith MOVED to adopt the following language: "If the magistrate before whom the complaint is made is someone other than a judge admitted to practice law in this state, he shall not issue a warrant until the complaint has been approved by the prosecuting attorney." This was SECONDED by Judge Pearce.
Paul Sand suggested changing the word "judge" to "person", because a judge is not permitted to practice. This was agreeable to Judge Smith.
Judge Glaser made a comment regarding the addition with reference to the discussion on probable cause: "probable cause shall be based upon substantial evidence". He said that this is the standard for the issuance of a warrant, and yet the standard for holding a man for trial after a preliminary hearing is identical to that.
Judge Erickstad suggested omitting the word "substantial" and including the words "finding of probable cause".
Mr. Shaft again made reference to the report of the Bar Association of the City of New York, supra. Mr. Shaft read from the publication as follows:
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Rule 4 would be amended in two major respects.
First. Although the provision of the present Rule--directing magistrates to issue a summons rather than a warrant upon the Government's request--is retained, by this amendment magistrates are given the power to issue a summons even when the Government makes no such request. We believe this to be a desirable step towards greater flexibility in the criminal process, and approve the proposed amendment.
Second. The Rule makes clear that probable cause is a prerequisite to the issuance of a warrant or a summons and articulates the general criteria applicable to the determination of probable cause. The language of the amendment, with one exception, tracks existing case law on the subject and should be adopted. The exception occurs in the Rule's description of the permissible grounds of a magistrate's determination of probable cause, stating that it "shall be based upon substantial evidence . . . ." The phrase "substantial evidence" has been used in the past chiefly with respect to the quantum of evidence sufficient to sustain an agency order on appeal. Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951); see also Section 355 of the Food and Drug Act, dealing with the proof necessary to establish the effectiveness of a new drug. Though the advisory committee's note does not express an intention to increase the degree of persuasion necessary to support the issuance of a warrant or a summons, the phrase "substantial evidence" might be interpreted as raising the required standard of proof. No need for such a change has been demonstrated. The Supreme Court has indicated that affidavits submitted to a magistrate must be read in a common-sense and non-technical manner, United States v. Ventresca, 380 U.S. 102 (1964), and the standard of proof is already high, Spinelli v. United States, 393 U.S. 410 (1969). Courts have also not been reluctant to strike down affidavits deemed inadequate. The introduction of a new and perhaps confusing phrase would seem to serve no purpose. We believe that the Rule should preserve existing law on probable cause, leaving any change to future development on a case-by-case basis. Accordingly, we recommend that the reference to "substantial evidence" be deleted and the standard of "probable cause" retained without gloss.
Judge Ilvedson MOVED that the word "substantial" be deleted following the
words "shall be based upon" in Rule 4(a)(1). The motion was SECONDED by Mr. Sand. The amended sentence would then read;
"The finding of probable cause shall be based upon evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished."
The Chairman called for discussion.
Judge Smith noted the changes proposed and suggested that he wanted to track with existing case law, but that he didn't see any reason for making a "monument" to existing case law which may be superseded by another case.
Judge Erickstad suggested keeping that language in the rule. He doubted whether the case law would change to any degree in the future because it came in with a conservative court, and in fact the most conservative member of the court wrote Giordenello. He concluded that unless there is a tremendous swing of the pendulum, the case law will remain as it is.
Judge Smith stated that the use of the word "hearsay" is troublesome, as it doesn't distinguish between types of hearsay which are admissible. He noted that case law permits the expansion of evidence on the basis of whether it is credible and reliable, and that the 'credible and reliable' test has been supported by a recent Supreme Court decision and is contained in Article 1, Section 18 of the N.D. Constitution.
Judge Muggli questioned whether Judge Ilvedson's motion wasn't just on the word "substantial". It was pointed out that it was.
Question was called on the above motion. The vote was taken and the motion CARRIED unanimously.
Judge Pearce pointed out that if the requirements of hearsay as being credible and reliable are not spelled out, the investigating officer will not have a sufficient basis upon which to determine the requirements for the issuance of a warrant. It is also necessary to spell out what constitutes a "sufficient basis", in order that the magistrate or the municipal court Judge can determine what he needs to issue the warrant.
Judge Ilvedson noted that the proposed procedure would actually make it easier to get a warrant issued than under the present system.
Judge Erickstad pointed out that the majority of warrants are made by the police without the issuance of a complaint.
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Mr. Sand suggested that if you make it more difficult for the officers to obtain a warrant, they would make more on-the-spot arrests. Judge Glaser then questioned whether there was an inconsistency between Rule 4, as to the issuance of a warrant, and Rule 3 on the issuance of a complaint.
Mr. Sand pointed out that there is a difference between the complaintand the warrant. The complaint contains a simple statement which forms the basis from which to request the issuance of a warrant. Thus, though the complaint may often be just a short statement, it often formulates the probable cause for the issuance of a warrant.
Judge Erickstad pointed out that the complaint oftentimes is the only basis from which the judge may determine if there is probable cause for the issuance of a warrant.
Judge Smith suggested a language change in Rule 4(a)(1) to read: "Before ruling on a request for a warrant, the magistrate may examine the complainant under oath and any other witness he may produce, in which case the proceedings shall be recorded by a court reporter or recording equipment." This language change is shown as follows:
"Before ruling on a request for a warrant, the magistrate may (((require)) examine the complainant under oath (((to appear personally and may examine under oath the complainant))) and any other witness he may produce, in which case the proceedings shall be recorded by a court reporter or recording equipment."
The purpose of the proposed language change is to eliminate the possibility that the magistrate may require the complainant to appear personally.
Judge Ilvedson pointed out that if the complaint is signed, that a warrant will automatically issue. He thus questioned whether the sentence under consideration (beginning "Before ruling on a request for a warrant...") would be better situated under Rule 3 rather than Rule 4(a).
Mr. Sand countered this suggestion by stating that a complaint need not state all the necessary facts and need not be nearly as broad and as specific as the information on which the judge ultimately bases his decision, which may include the complaint in addition to other affidavits, external examination of people or witnesses, etc. This information comes under Rule 4 as to issuance of warrant rather than under Rule 3, which is the mere acceptance of the filing of a document.
Judge Erickstad agreed with Mr. Sand's position and saw no objection to the language as contained in each of the two rules.
Judge Pearce pointed out that this Rule would cause some difficulty in the municipal system. Under the municipal system, if someone were to come in and swear out a complaint under oath, the municipal judge would be required to issue the complaint and would have no discretion as to its issuance. Judge Pearce expressly declared his dissatisfaction with Section 40-18-07 (Warrants of Arrest issued to Municipal Judge--Service of Warrant) as it is presently written. He stated that in his practice, he would refuse the issuance of a complaint even though under the statute he has no discretion as to its refusal.
Since no motion was made on the proposed language change, Judge Smith then MOVED that the language be changed to read, "Before ruling on a request for a warrant, the magistrate may examine under oath the complainant and any other witness produced, in which case the proceedings shall be recorded by a court reporter or recording equipment." Motion was SECONDED by Mr. Sand. There was no further discussion and motion CARRIED.
Mr. Sand MOVED that Rule 4(a)(1) be adopted as amended. This was SECONDED by Judge Muggli, who pointed out for the record that the two amendments are; (1) the deletion of the word "substantial", as proposed by Judge Ilvedson, and (2) the language change proposed by Judge Smith.
Judge Erickstad pointed out a further change in the first line, with the word "and" replacing the word "or". The Chairman noted further that the word "judge" was changed to read "person".
The question was called and the motion PASSED.
The Committee RECESSED for lunch and agreed to reconvene at 1:30.
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The Committee reconvened at 1:30 on Friday, January 28, with the following members present:
Hon. Ralph J. Erickstad, Chairman
Hon. Gerald G. Glaser
Hon. Roy A. Ilvedson
Hon. Norbert J. Muggli
Hon. William S. Murray (arrived late)
Hon. Harry J. Pearce
Mr. Roger Persinger (arrived late)
Mr. Paul M. Sand
Mr. John G. Shaft
Hon. Kirk Smith
Staff present and members absent, same as listed for a.m. session.
RULE 4(a)(2):
Mr. Shaft read Rule 4(a)(2), as follows:
"(2) Summons.
"If violence is not an element of the crime charged, a summons instead of a warrant shall issue if:
(a) The magistrate has reason to believe that the defendant will appear in response thereto,
(b) The defendant is a corporation, or
(c) Requested by the prosecuting attorney.
If violence is an element of the crime charged, the magistrate may, but need not issue a summons instead of a warrant. The prosecuting attorney shall request a summons whenever he is satisfied that there is no substantial risk that the defendant will fail to appear in response thereto. In any case in which it is lawful for an officer to arrest a person with or without a warrant he may give such person a summons instead of arresting him."
Mr. Shaft pointed out that the purpose of the proposed amendment to the Federal Rules was to encourage the use of the summons.
Mr. Travis stated that where violence is an element of the offense, there should be less discretion in the issuance of a summons rather than a warrant.
It was also noted that the language in the proposed Rule 4(a)(2) is basically the language of the adopted Rule, taking into consideration the intent of Rule 46.
Judge Iverson questioned the use of the term "violence" and the effect if violence were an element. He stated that everyone should be treated equally when it came to violence.
Mr. Travis responded by pointing out that there are instances in which the degree of violence in the act is questionable (such as touching in assault, which really doesn't indicate that a person is violent), in which case the rule would give the magistrate some discretion to issue a summons rather than a warrant. Mr. Travis then pointed out that the last sentence of the proposed rule was drafted by Judge Burdick. Judge Burdick had proposed the change to the Conference of Commissioners on United State Laws, who appeared to be in favor of its wording.
Judge Erickstad then questioned the effect deletion of the last two lines would have. He suggested that by eliminating the last two lines, the rule would be more definite than in its present state.
Judge Pearce pointed out that quite often in practice in municipal government, instances of marital difficulty arise in which there is some striking which is not really violence as we tend to think of it. In such situations, the issuance of a warrant for arrest would do more damage than it would do good and a summons to appear would be a proper solution.
Judge Muggli questioned whether it wouldn't be simpler to keep the original rule 4(a)(2) as adopted rather than going into the violence question as presented under the proposed rule.
Judge Glaser noted that usually it is in the magistrate's discretion as to whether he should issue a warrant for arrest when there is an element of violence.
Judge Erickstad suggested that the intention in the proposed rule was to alert the magistrate to the new policy which he should follow, which is to issue summonses instead of warrants unless certain conditions exist.
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Judge Pearce raised a question concerning form. He stated that since "or" was used in subsection (b), that for consistency, "or" should also be included under subsection (a).
Mr. Sand stated that by the use of the word "or", these all become disjunctive situations.
Judge Pearce stated that the inclusion of the language "or" would clarify the meaning of Rule 4(a)(2).
Judge Smith questioned whether the meaning of Rule 4(a)(2) wouldn't be clarified if it were reworded to read: "A summons instead of a warrant shall issue if:
(a) The magistrate has reason to believe that the defendant will appear in response thereto", omitting entirely the violence proposition.
Considerable discussion followed over the meaning of the phrase "violence". Judge Pearce suggested drafting the rule so that warrants would be issued in cases where the setting of bail is appropriate; then discuss violence as one of the many considerations of admitting the individual to bail, under Rule 46.
Judge Erickstad then pointed out that the question of time was an important element to be considered. He stated that a determination of whether or not violence was an element of the crime should be made at this time. It should also be determined at this time whether the individual should be brought in by a warrant rather than a summons, in order to eliminate the possibility of time in which he could commit some other crime of violence. He felt that this rule was better drafted than the previous rule as adopted, because it alerted the magistrate to think of violence as an element to be considered.
Judge Muggli re-emphasized his position, which was to return to Rule 4(a)(2) as originally adopted.
Judge Smith stated that in regard to Rule 4(a)(2), the purpose of the change was to alert the magistrate to be liberal in the use of the summons compared to the use of the warrant. He suggested (in keeping with Judge Muggli's suggestion) going back to the originally adopted language, and resolving the problem by inserting an explanatory note to that effect (then the rule could contain the language as previously adopted). He noted further that the present language provides a mechanical determination for the magistrate's use in determining the issuance of a summons or a warrant.
Judge Ilvedson pointed out that one of the bases for considering violence and determining whether to issue a summons or complaint was found in the explanatory notes, to the effect that the function of using the standard is to keep the violent person off the streets and away from society until the court can pass on the case.
Paul Sand MOVED the adoption of Rule 4(a)(2) in the language adopted November 21, 1969, rather than the proposed draft. Motion was SECONDED by Judge Muggli.
John Shaft brought to Mr. Sand's attention the fact that he had eliminated the provision for issuance of a summons instead of a warrant in cases when requested by the prosecuting attorney.
Mr. Sand responded that this was not the crux of the matter, that it is not the prosecuting attorney but rather the magistrate that makes the decision.
It was noted that there was a change from the proposed rule language in the last sentence of Rule 4(a)(2), from the rule as adopted, to the effect that the words "with or without a warrant" were included in the proposed adoption. Judge Smith explained that the reason for including this language was to permit an officer who had apprehended a suspect in the commission of a misdemeanor who is known to the officer is likely to appear to release the individual on promise to appear, similar to the Uniform Traffic process, rather than put the individual in prison and effect the bail process.
It was noted that under the Uniform Traffic Summons Act, there is a provision for a penalty in cases where an individual fails to appear pursuant to a traffic summons. However, there didn't appear to be a penalty for failure to appear pursuant to a summons under Rule 4(a).
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Judge Erickstad suggested eliminating the last sentence in Rule 4(a)(2), as moved for adoption by Paul Sand. The sentence is:
"In any case in which it is lawful for an officer to arrest a person with or without a warrant, he may give such person a summons instead of arresting him."
Judge Erickstad noted further that the problem with the last sentence is that it creates confusion, as is shown by the discussion among the Committee members.
Judge Pearce noted that there is a misapprehension on the part of police officers when observing an offense being committed (such as traffic violation cases), that he must do something at that particular point. He stated that another problem which concerns him is that of whether an officer should be authorized to issue a summons. He stated that if the officer were so authorized, that such a process would be a great extension of what the law is. The whole concept of a summons would be lost if persons could be summoned before the court in cases where the judge believed they should not be.
Judge Ilvedson noted, with respect to Rule 4(a)(2) as adopted, that the minutes of previous meetings during which the rules were adopted indicated that there was no discussion on the subject.
Mr. Travis stated that from the practical aspect, the benefit of having an officer issue a summons, citation, or promise to appear (whichever terminology is felt to be proper), would serve to reduce in great measure the amount of paperwork required for processing (arresting, booking, fingerprinting, and mugging) an accused, as well as eliminate the injustice of having that person faced with an arrest record where such would not be necessary. This procedure would also allow the police officer to remain on his "post", rather than leave to complete the necessary procedures now required to complete a formal arrest (arrest, booking, mugging, bail). Furthermore, the magistrate would not be required to spend time committing the individual to bail.
Paul Sand, in considering the last sentences under discussion, stated that it was his opinion that as the rule now reads, it would be possible for an officer who observes a vicious murder to issue a summons. Paul Sand AMENDED HIS MOTION to adopt Rule 4(a)(2) with the following changes: to delete the last sentence in its entirety, and to strike the words "fail to" in the preceding sentence and to insert in lieu thereof the words "not be a menace to society and will".
Mr. Sand's motion was SECONDED by Judge Erickstad.
For clarification, the amended language of the Rule reads as follows:
"4(a)(2) Summons.
A summons may issue in lieu of a warrant if the magistrate has reason to believe that the defendant will not be a menace to society and will appeal in response to it, or if the defendant is a corporation."
Some discussion followed over what criminals are to be considered violent with respect to the language inserted by Mr. Sand, "not be a menace to society". It was noted that, in the rule as presented to the Committee for adoption (white copy), that the judge has some discretion concerning the issuance of a summons for a violent criminal act.
Judge Smith made a SUBSTITUTE MOTION to adopt the language of 4(a)(2) as
previously adopted, "a summons may issue in lieu of a warrant if the magistrate has reason to believe that the defendant will appear in response to it, or if the defendant is a corporation." The substitute motion was SECONDED by Judge Muggli. There being no further discussion, the question was called, and the motion CARRIED.
John Shaft noted that the remainder of the rule, that is, subsection 4(b), was the same as had been previously adopted.
John Shaft MOVED the adoption of subsection (b) Form as had been previously adopted. The motion was SECONDED. Question was called, there was no discussion, and the motion CARRIED.
Judge Pearce raised a question with respect to language in Rule 4(b)(2), which states "that if he fails to appear, a warrant for his arrest will issue." He questioned the grounds for the issuance of the warrant and noted Section 33-02-08 (Time
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for Defendant's Appearance). Judge Pearce referred to that notation in light of a similar provision under Title 40, Section 40-18-14 (Municipal Judge may Enforcement Orders and Judgments), which gives the judge the authority and the power to issue process to protect his order. Judge Pearce continued, stating that he felt there should be some provision for enforcing a summons. He added that there should be something more in the way of an enforcement procedure for failure to appear pursuant to a summons than just the issuance of a warrant.
It was noted further that the explanatory note contains language to the effect that "failure to respond to a summons is not contempt of court but is ground for issuance of a warrant". This is the interpretation of other states which have interpreted similar provisions. This provision appears in two places of the Explanatory Note for Rule 4: on page 3, at the end of the first full paragraph, and on page 4, the last sentence of the first paragraph.
Judge Smith suggested that he was not eliminating the possibility of using contempt powers where an individual fails to obey a summons, but rather it was his position that it wouldn't be the problem of having two violations in process at the same time against the same person. It does satisfy the requirement that all judges' orders should be enforced by contempt power.
Two points of view were presented with regard to contempt statutes; one by Judge Smith, whose position was that the magistrate should issue a bench warrant for a person who fails to appear pursuant to a summons. The defendant must explain his failure to appear, and if the explanation is unsatisfactory, the penalty could be handled by means of a greater penalty for the original offense. Judge Glaser suggested that disposition should be made not only on the original offense, but also some disposition is required for failure to obey the summons order of the court, which should carry with it some sort of penalty.
Judge Muggli MOVED to delete the language in the Explanatory Note as referred to above, that is, page 3, the last sentence of the first paragraph; and on page 4, the last sentence of the first paragraph.This was SECONDED by Paul Sand, there was no further discussion, and the motion CARRIED.
Acting Chairman Glaser RECESSED the Committee at 3:00 for coffee break.
Acting Chairman Glaser RECONVENED the meeting for consideration for Rule 4(c).
Paul Sand inquired as to disposition of a warrant issued by a municipal judge and questioned whether it had any value beyond jurisdiction in that city.
Judge Smith suggested that consideration be given to answering the question based on who receives the funds or to what fund the fines are to be paid.
Another question raised was whether a warrant issued by a municipal judge is issued in the name of the State of North Dakota.
Paul Sand questioned Judge Pearce concerning the disposition of a warrant issued in the name of the State of North Dakota for the violation of a city ordinance and questioned whether it could be issued statewide in considering its execution.
Judge Pearce responded by stating that the answer is not clearly defined; however, Judge Pearce took the position that his warrants cannot be executed beyond the boundaries of the city. He suggested that he took this position because it was the conservative approach. He made reference to Section 40-18-08 (Warrants Issued by Municipal Judge to Run to Whom). Discussed therein is the violation of any general law of the state, in which case the warrant shall be directed to any peace officer of the municipality.
Judge Erickstad noted that if Section 40-18-08 were superseded, it would give the magistrate the authority to issue a warrant for violation of a city ordinance beyond the limits of the city. He questioned why such procedure shouldn't allow the city magistrate to issue a warrant beyond the limits of a city for violation of a city ordinance.
Judge Pearce noted that there had been a bill introduced in the last legislative assembly providing for this specific provision. His objection to such a provision was relative to those small-town municipal judges who are not attorneys. It was his position that such authority could be misused and is subject to abuse. He gave as an illustration a small-town magistrate who he envisioned issuing a warrant and
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requiring an individual to travel two hundred and fifty miles to answer a charge of speeding, or possibly for a parking violation. He re-emphasized the distinction between issuing a warrant for violation of a state law and that of issuing a warrant for violation of a city or municipal ordinance. In the first instance, there would be no problem with issuing a statewide warrant; however, in the second instance he felt more constrained.
Paul Sand noted that this particular question has been considered for many years in the attorney general's office and as yet no consensus has been agreed upon. They have relied upon a comment made many years ago, that "the jurisdiction is within the territorial limits of the municipality as far as ordinances are concerned". He also noted that this particular question had been presented to the legislature for consideration, but that the legislature "backed away" from it.
Judge Pearce suggested that the answer might be found in Section 29-01-14 (Who Are Magistrates), which states: "the following officers are magistrates", and in subsection 3, adds: "as limited by law directing the place of exercising their jurisdiction and authority, county justices, police magistrates, and when authorized by law, the judges of the county courts, including those with increased jurisdiction, with authority each to act as such throughout the county or the judicial subdivision in which the county, city, or municipality for which he is elected or appointed is located."
Judge Glaser suggested that the answer might lie with respect to how the rules will apply on execution of the warrant. He quoted subsection 4(c)(1), "The warrant shall be directed to all peace officers in this state and shall be executed only by a peace officer. It shall be executed by the arrest of the defendant and may be executed in any county of the state by any peace officer in the state". He construed this to mean that if these rules apply to warrants issued by municipal judges, then they would apply to service as well.
Paul Sand noted that the Supreme Court has decided that prosecution of an ordinance would constitute double jeopardy where it was also prosecuted under the state statute. It follows from this line of reasoning that some support should be given to the concept that a warrant issued by a magistrate may be served statewide, because the city is a political subdivision of the state and not a separate sovereignty.
Acting Chairman Glaser noted for procedural purposes, that the matter before the Committee is a consideration of subsection 4(b)(1) as previously adopted.
Judge Erickstad moved the question. There was no further discussion, the vote was taken and the motion CARRIED unanimously to adopt subsection 4(b)(1).
Mr. Shaft then MOVED the adoption of subsection 4(b)(2) Summons, as previously adopted by the Committee. Mr. Sand SECONDED the motion. There was no discussion, the question was called and the motion CARRIED to adopt subsection 4(b)(2).
Acting Chairman Glaser called upon the Committee to consider subsection 4(c), Execution; Service, and recommended that the Committee consider both 4(c)(1), Execution of Warrant, and 4(c)(2), Service of Summons in one motion.
Mr. Shaft MOVED confirmation of previous adoption of 4(c)(1) and (2). This was SECONDED by Judge Smith. Mr. Sand questioned the definition of the term "peace officer". Judge Erickstad noted that "peace officer" is defined in Section 12-01-04(13) NDCC.
Judge Erickstad questioned whether it would be outside the scope of the Committee to change the word "peace officer" to "law enforcement officer", considering the definition and the ramifications of the terminology. He rationalized that this is the procedural aspect and therefore would come within the scope of the Court to promulgate rules to govern the procedure. He added that it would be his proposal to use the term "law enforcement officer" rather than peace officer.
The RECORD notes Judge Pearce left the proceedings.
The Committee agreed to begin their work at 9:00 a.m. on Saturday, January 29.
Judge Erickstad noted that it would be easier to drop the issue than to continue trying to resolve the "peace officer" problem.
Acting Chairman Glaser called the Committee's attention to the motion on the floor to adopt subsections 4(c)(1) and (2). He called for a vote; the vote was unanimous and the motion CARRIED.
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Mr. Shaft then noted that there have been no changes in subsection (d) from the Rule as previously adopted. He MOVED confirmation of the adoption of subsection 4(d). The motion was SECONDED by Judge Murray. There was no discussion, a vote was called and the motion CARRIED to adopt subsection 4(d).
Mr. Shaft then pointed out that 4(e) is exactly the same as previously adopted and MOVED for the confirmation of Rule 4(e) as previously adopted. This was SECONDED by Judge Murray. There was no further discussion, a vote was called, the motion CARRIED. (See Appendix A for final form of Rule 4 as adopted)
Discussion was directed to "Statutes Affected" by Rule 4. Consideration was given to Section 29-05-06 (When a Warrant of Arrest to be Issued). It was agreed by the Committee that Section 29-05-06 was properly superseded by this Rule.
The Committee's attention was focused on Section 29-05-07 (Warrant defined--Form). Judge Erickstad questioned whether the Rules Committee plans to recommend forms for adoption when the Rules become effective. He pointed out that the Rules Committee retained the form of the complaint, under Rule 3, and it would follow for consistency that they should retain the form of the warrant, under Rule 4.
Judge Smith MOVED to have Section 29-05-07 placed under "Statutes Considered". This was SECONDED by Mr. Sand.
Discussion followed as to the meaning of the phrase "to any sheriff" as opposed to "all officers". It was agreed that the meaning here was synonymous.
It was noted that the form in Section 29-05-07 would have to be changed to comply with the rule or it would be unusable.
Mr. Shaft pointed out that Rule 4(b)(1) describes a warrant in language so simple and clear that there should be no necessity to have a separate form for the warrant.
Judge Muggli MOVED to have Section 29-05-07 superseded.Acting Chairman Glaser pointed out that this hadn't been the procedure in deciding whether the statutes should be retained or superseded. Mr. Sand then WITHDREW his motion.
The Committee next considered Section 29-05-11 (Duty of an Officer if Offense Charged is Felony). It was the consensus of the Committee that it would be more appropriately superseded by Rule 5 than under Rule 4. Mr. Shaft made a MOTION to supersede Section 29-05-11 under Rule 5 rather than Rule 4. This was SECONDED by Judge Smith and the motion CARRIED.
Attention then focused on Section 29-05-28 (Summons Against Corporation). There was no objection and Section 29-05-28 was superseded.
Section 29-05-29 (Form of the Summons) was considered next. Mr. Shaft indicated that Rule 4(b)(2) stated, "the summons shall be in the same form as the warrant". There was no discussion and it was agreed that Section 29-05-29 should be superseded.
Attention then focused on Section 29-05-30 (Service of Summons Against a Corporation). There was no objection, Section 29-05-30 was superseded.
Attention then focused on Section 29-05-31 (Uniform Traffic Complaint and Summons) Mr. Sand MOVED to delete any reference to Section 29-05-31 from the Explanatory Note. A SUBSTITUTE MOTION was made to place Section 29-05-31 in the classification statutes "Considered". This was SECONDED and the motion CARRIED.
Attention focused on the statutes retained in the Explanatory Notes, Rule 4. Mr. Shaft pointed out that the reference to Section 29-05-09 was a typographical error and should be deleted.
Attention focused on Section 29-05-10 ("Peace officer" defined) and Section 29-05-24 (Duty of Officer Transmitting Warrant). It was agreed that these statutes should be retained (as "considered") for the present.
It was pointed out that Section 29-05-23 through Section 29-05-27 dealt with warrants issued by telegraphic instruments. It was the consensus of the Committee that these sections should be retained without reference to any of the Rules.
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Attention focused on the Explanatory Note itself, with Mr. Shaft pointing out that the explanatory note was obviously too long for the purpose of the Rules Committee and that it would have to be changed in accordance with the changes in the Rule.
Judge Erickstad suggested that Mr. Shaft work with the staff in rewriting the Explanatory Note to have it ready for consideration and adoption at the next Rules Committee meeting. Mr. Shaft agreed to this.
Discussion ensued as to the use of the explanatory notes when the Rules are submitted for adoption. As an example, reference was made to the use of commentary in the Idaho Rules of Criminal Procedure. It was agreed that the final decision as to the use of the explanatory note would be made by the Supreme Court.
RULE 5:
With this issue resolved, discussion turned to Rule 5, The Initial Appearance Before the Magistrate. The text of the rule follows:
"Rule 5. Initial Appearance Before the Magistrate.
(a) General.
"An officer or other person making an arrest shall take the arrested person without unnecessary delay before the nearest available magistrate. If a person arrested without a warrant is brought before a magistrate, a complaint shall be filed forthwith in the county where the offense was allegedly committed. A copy of the complaint shall be given within a reasonable time to the arrested person and to any magistrate before whom he is brought, if other than the magistrate with whom the complaint is filed. If a person, arrested with or without a warrant or by summons, appears initially before the magistrate, the magistrate shall proceed in accordance with the applicable provisions of this Rule.
(b) Statement by the Magistrate.
"(1) General.
The magistrate shall inform the defendant:
(i) Of the charge against him and any accompanying affidavit;
(ii) Of his right to remain silent; that any statement made by him may later be used against him;
(iii) Of his right to the assistance of counsel before making any statement or answering any questions;
(iv) Of his right to be represented by counsel at each and every stage of the proceedings;
(v) The right to have legal services provided at public expense to the extent that the defendant is unable to pay for his own defense without undue hardship; and
(vi) That he has the right to be admitted to bail pursuant to the provisions of Rule 46.
"(2) Felonies.
If the offense charged is a felony, the magistrate shall inform the defendant, in addition to subparagraph (b) (1), of his right to a preliminary examination, the right to waive the preliminary examination and the assistance of counsel at the preliminary examination.
"(3) Misdemeanors.
If the offense charged is a misdemeanor, the magistrate shall inform the defendant, in addition to subparagraph (b)(1), of his right to trial by jury and of his right to appear and defend in person and with counsel.
(c) Right to Preliminary Examination.
"(1) Waiver.
The defendant shall not be called upon to plead. If the defendant waives preliminary examination, the magistrate shall hold him to answer in the district court having jurisdiction to try the case. The magistrate shall admit him to bail pursuant to the provisions of Rule 46.
"(2) Non-waiver.
If the defendant does not waive preliminary examination, a magistrate of the county in which the offense was allegedly committed shall hear the evidence within a reasonable time. The magistrate shall admit him to bail pursuant to the provision of Rule 46."
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Judge Smith pointed out that Rule 5 as proposed is substantially different from Rule 5 as previously adopted. The proposed Rule 5 reflects the proposal in the Preliminary Draft of the Proposed Amendments to the Federal Rules (January 1970). Acting Chairman Glaser requested that Judge Smith point out changes in the proposed rule from the Rule as previously adopted. Judge Smith replied that the changes were not substantial but primarily reflected a change of form. The Preliminary Examination, which was formerly 5(c), is now contained in a separate Rule--Rule 5.1. The purpose of the proposed change was to present the material in a more readily acceptable form by listing things which the magistrate must advise the defendant of upon his initial appearance. This would be easier than having the magistrate pull it out of the prose, as under the former rule. The changes were made to conform with the recommendation of the Joint Committee on Practice and Procedure in January of 1970. Judge Smith stated that the proposed rule has not yet been adopted but is under consideration.
Discussion ensued as to the last sentence of Rule 5(a). It was decided that the rule read more clearly using "when" rather than "if a person" in describing the person dealt with in the last sentence of subsection 5(a). Mr. Travis explained that the word "If" had been substituted for "When" at the request of Judge Burdick.
Judge Smith stated that the last sentence could be deleted from Rule 5(a) without objection on his part. Discussion ensued as to the meaning of the last sentence.
Judge Smith read proposed rule 5(a), substituting the words "the defendant" for "he" in the second to last sentence, and "when a person" for "if a person" at the beginning of the last sentence.
Judge Smith then MOVED for the adoption of Rule 5(a) as amended. This was SECONDED by Judge Muggli, who questioned why "the defendant" was placed within the rule in place of the word "he". Judge Smith stated that he thought it was more specific.
Upon reconsideration, Judge Smith agreed that the rule read more clearly with the word "he" rather than "the defendant", as it referred back to the arrested person.
It was decided that the same purpose of the last sentence could be carried out by rewording subsection 5(b) to read "Statement by the Magistrate at the Initial Appearance". This would serve to show that these warnings must be given at the initial appearance before the magistrate.
A MOTION was made by Judge Muggli to delete the last sentence of Rule 5(a) and to insert the word "he" back into the Rule in place of "the defendant", in the third sentence. This was SECONDED by Mr. Sand. There was no further discussion, a vote was called and the motion CARRIED.
The meeting was ADJOURNED until 9:30 a.m., Saturday, January 29.
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The meeting reconvened at 9:30 a.m. on Saturday, the 29th, with Judge Glaser presiding as acting chairman. The following members were present:
Hon. Ralph J. Erickstad, Chairman
Hon. Gerald G. Glaser, Acting Chairman
Mr. John A. Graham (arrived 9:50)
Hon. Norbert J. Muggli
Hon. William S. Murray
Hon. Harry J. Pearce
Mr. Roger Persinger
Mr. Paul M. Sand
Mr. John G. Shaft
Hon. Kirk Smith
Staff present:
Mr. Charles M. Travis, Criminal Code Reviser
Mr. Joseph H. Louwagie, Assistant Code Reviser
Miss Donna Fischer, Secretary
Members absent:
Hon. Eugene A. Burdick
Hon. Roy A. Ilvedson
Hon. James Morris
Mr. Robert L. Vogel
RULE 5(b):
Acting Chairman Glaser reminded the Committee that they had concluded the previous day with the adoption of Rule 5(a), so that consideration would now be given to Rule 5(b).
Judge Smith pointed out that 5(b)(1) General was different from the proposed Federal rule and also differed from Rule 5(b) as previously proposed to the Rules Committee for adoption. It differed from the proposed Federal rule in form in order to establish an easier system by which the judge could inform the defendant of his rights. Judge Smith then read Rule 5(b)(l) , (2), and (3) as proposed for adoption, with a minor change in Rule 5(b)(3) to read "or with counsel" rather than "and with counsel".
Judge Smith then MOVED the adoption of Rule 5(b). This was SECONDED by Judge Muggli.
In the ensuing discussion, Mr. Sand questioned why the defendant isn't informed of his right to counsel under 5(b)(2) Felonies, whereas he is in 5(b)(3) Misdemeanors. Judge Smith pointed out that under the Boykin decision [Boykin v. Alabama, ___ S.Ct. ___ (1970)], the magistrate didn't have to inform the defendant of all his rights, whereas the trial court does.
Mr. Sand questioned 5(b)(1)(v), The right to have legal services provided at public expense, and expressed his apprehension at the possibility that this would be interpreted to mean that all defendants are entitled to have court-appointed counsel. He stated that if the offense wasn't one which required incarceration for a period of six months, that it was unnecessary to have court-appointed counsel.
Judge Muggli pointed out that under Rule 5(b) as previously adopted, it read, "If the offense charged is one for which court-appointed counsel may be required, the person arrested shall also be informed that he has the right to have his legal services provided for him..." He suggested that the Committee return to that form of the Rule.
Judge Smith accepted this proposal and suggested revising Rule 5(b)(1)(v) to read, "The right to have legal services provided at public expense to the extent that the defendant is unable to pay for his own defense without undue hardship only if the offense charged is one for which court-appointed counsel may be required".
Acting Chairman Glaser suggested inserting the additional language at the beginning of the sentence rather than at the end. Judge Smith accepted the suggestion and Rule 5(b)(1)(v) was revised to read, "That only if the offense charged is one for which court-appointed counsel may be required, the right to have legal services provided at public expense to the extent that the defendant is unable to pay for his own defense without undue hardship; and ..."
Judge Pearce pointed out that a comment would be appropriate to 5(b)(3) to explain that there are instances under municipal ordinances in which the right to trial by jury does not exist. Judge Pearce referred specifically to Section 40-18-15 (Jury trials arising under the Ordinances of a City). He stated that although he would like to see the right to jury trial in municipal courts abolished, that comment should be made in 5(b)(3) making reference to Section 40-18-15.
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Before considering further the matter raised by Judge Pearce, Judge Smith revised subsection 5(b)(1)(v) to read:
"That if the offense charged is one for which court-appointed counsel is required, the right to have legal services provided at public expense to the extent that he is unable to pay for his own defense without undue hardship; and..."
Upon questioning by Judge Erickstad, Judge Smith commented that these requirements are not to be set up as required warnings, but rather were meant as guidelines, to establish which offenses require court-appointed counsel, as set out in Miranda [Miranda v. Arizona, 384 U.S. 436 (1966)].
Judge Erickstad suggested that the Rules Committee had a "golden opportunity" to set guidelines by which the people operating under the rules could determine whether the offense charged was a felony or a misdemeanor. It was pointed out the reason the issue was left open under the rule as adopted was that at the time the Rules Committee adopted the Rule, it was unsure as to what the law was. Judge Erickstad stated that unless the Committee establishes some form of guideline, that those operating under the rules would continue to look to various court precedent to determine what constitutes a felony and what constitutes a misdemeanor in order to determine which situations require court-appointed counsel. Since no decision was reached in determining whether a guideline should be established within the Rule or not, it was decided to move on.
Judge Smith MOVED the adoption of Rule 5(b), with the changes in Rule 5(b)(1)(v) and the correction made in Rule 5(b)(3) in the last line to read "or with counsel" rather than "and with counsel".
Discussion followed as to what effect the change would have, and it was suggested by Mr. Sand that the correction read "or by counsel" rather than "and with counsel".
Judge Smith agreed that this correction clarifies the meaning of the sentence. He suggested that the subheadings in Rule 5 should be changed so that 5(a) would be entitled "General". Under Rule 5(b), the title "Statement by the magistrate would be stricken; under 5(b)(1) the subtitle "General" would be stricken and subparagraph (1) should be placed before "the magistrate shall inform the defendant". Finally, subsection (c) should be changed to (b). Paul Sand added that the small subparagraph (i) should be changed.
Judge Erickstad suggested leaving the format as it was. Judge Smith noted that the reason for the change was to eliminate the possibility of confusion between the two headings.
Paul Sand suggested leaving subtitle (b) as "Statement by the magistrate", and adding the words "at the initial appearance". He would retain subtitle (1) before "the magistrate shall inform the defendant" and eliminate the word "general".
Judge Smith suggested including under 5(b)(1) the words "in all cases, the magistrate shall inform the defendant".
Judge Erickstad called on Mr. Travis to explain the breakdown of subtitle 5(b). Mr. Travis noted that the intent was simply to inform the magistrate under 5(b)(1) of those rights which the defendant must be informed of in all cases. This, in turn, is followed by a breakdown under 5(b)(2) and 5(b)(3) of the additional rights of the defendant, depending upon whether the crime was a felony or a misdemeanor. The format was used because it was thought to be easy to read and simple to understand.
Judge Smith suggested that the language in subsection 5(b)(2) which relates back to (b) (1) ["in addition to subparagraph (b)(1)"] should be deleted and the word "also" inserted after, "magistrate", in the first line. This would be done in both subtitle (a) Felonies and subtitle (3) Misdemeanors.
Judge Muggli suggested that the addition of the word "also" in 5(b)(2) and (b)(3) should be placed in a different location, so that it would appear after the word "defendant". It would then read; "If the offense charged is a felony, the magistrate shall inform the defendant also, of his right to a preliminary examination..."
Mr. Travis noted that Judge Pearce had proposed an exception to 5(b)(3) [concerning jury trials]. He requested the Committee's guidance on subtitle (b)(3).
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Judge Pearce suggested superseding Section 40-18-15 (Jury Trials in Cases
Arising under the Ordinances of a City). He cited Duncan v. State of Louisiana, 391 U.S. 145 (1968) [which appears to be the latest Supreme Court decision on the matter], and noted that the court in that case draws the line at thirty days and $500 fine in determining what constitutes a petty offense, in determining a defendant's right to a jury trial within the municipal court system. He further noted that under the present statute, any individual charged with speeding more than ten miles-per hour over the legally permissible limit is entitled to a jury trial. Where this right is exercised, it greatly burdens the municipal court system.
Considerable discussion followed concerning the right to trial by jury for petty offenses pursuant to Section 40-18-15. It was noted that the right of jury trial at the municipal level is not necessary in view of the fact that trial de novo is possible by transfer to a court of record, wherein a jury trial is always permissible.
It was pointed out that since a municipal court is not a court of record, that trial by jury is almost an absurdity.
Paul Sand suggested reversing subdivisions (iv) and (v) of Rule 5(b)(1), so that the accused would be advised of his right to be represented by counsel after he has been advised that he has the right to have legal service provided at public expense. This led to a discussion concerning the rights as set out in Miranda and as discussed in the North Dakota case of State v. Iverson.
Judge Smith MOVED the adoption of Rule 5(b), noting that he was not satisfied with the Rule. The motion was SECONDED by Judge Muggli. Acting Chairman Glaser called for a vote on Rule 5, through (b)(2).
Acting Chairman Glaser called for consideration of 5(b)(3) Misdemeanors, a noted the changes. The rule as proposed for adoption reads, "If the offense charged is a misdemeanor, the magistrate shall inform the defendant of his right to trial by jury and of his right to appear and defend in person or by counsel.
Judge Muggli questioned whether 5(b)(3) Misdemeanors was applicable to city ordinances. Judge Pearce responded by stating that he had been unable to determine this to his satisfaction. He indicated that the State Supreme Court has had considerable difficulty in resolving the effect of municipal ordinance violations in deciding whether they are indeed even criminal. The general approach taken by the Supreme Court and other courts which have dealt with the problem is that an ordinance violation may result in incarceration. With this conclusion, ordinance violations will be necessarily included as misdemeanors until the legislature can produce a different scheme of classification for administrative violations.
Judge Muggli suggested that the Explanatory Note include language such that the Committee intends subsection (3) to apply to violations of municipal ordinances. Acting Chairman Glaser suggested that a problem arises because the Rule excludes such reference to the municipal court system by the language, "except as otherwise provided by statute", and Section 40-18-15 regulates when an individual is entitled to the right of trial by jury in a municipal court. He stated that they should pass the rule as it is, leaving the statute unaffected.
Another suggestion was to list Section 40-18-15 as "Superseded", thus eliminating the problem of having a statute which regulates trial by jury in the municipal court. In that way, subsection 5(b)(3) would apply to all courts.
Judge Smith suggested retaining the statute as considered, and changing the language to read as follows: "If the offense charged is a misdemeanor, the magistrate shall inform the defendant also of his right to trial by jury as may be limited by statute and of his right to appear and defend in person or by counsel." He explained that it doesn't specifically apply to courts of increased jurisdiction; therefore, county Judges could ignore that phrase. He noted further that it would still apply to county justice courts and to all municipal courts.
Judge Pearce suggested superseding the statute and including the phrase "if any" after the words "trial by jury".
The question was then raised as to how to tell the defendant if he has a right to trial by jury. The flaw with this language is that it does not explain when a jury trial is available.
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Judge Erickstad suggested that the Committee go all the way and say that if the offense charged is a misdemeanor, the magistrate shall inform the defendant of his right to trial by jury in any offense which involves incarceration of more than thirty days or $500 and of his right to appear in person or by counsel. By stating it specifically, the Committee would have accomplished something easily understandable by the people. It was noted that this provision would apply generally for all misdemeanors, not just in municipal courts.
It was noted by Acting Chairman Glaser that the Committee in passing upon this provision, would be deciding when a person has a right to trial by jury. He suggested that this was more appropriately a legislative function and that the Committee might be exceeding its scope by adopting such a provision.
Judge Smith proposed that the Committee "take the bull by the horns" by taking a firm stand on the issue, so that the legislature could look to the Committee's work as the basis for decision on their part. Paul Sand agreed, noting further that the Committee should be specific and eliminate the unstandardized procedure employed by various magistrates in determining those cases in which the right to trial by jury should be granted.
Acting Chairman Glaser noted a reference to Rule 23, regarding trial by jury. He suggested a cross-reference should be made to this rule.
Judge Pearce indicated that he was planning to draft a bill for submission to the legislature in hopes of resolving the problem of jury trial in municipal courts. He stated that he would approach the legislature privately so that the Committee would be relieved of the problem.
Judge Murray noted for the Committee's benefit that never in the history of the English common law had a trial by jury achieved the breadth of stature that it has in the United States.
Judge Erickstad questioned the benefit that a provision of this nature would have, considering that Judge Pearce would be going to the legislature with his proposal. He stated that there might be some advantage to having the provision in the rules when going to the legislature, and indicated that this should be considered by the Committee.
Judge Smith suggested substituting the phrase "in all cases where the punishment" for the words "if any" after "trial by jury". After some additional minor changes, Judge Smith re-read subparagraph 5(b)(3) Misdemeanors.
"If the offense charged is a misdemeanor, the magistrate shall inform the defendant also of his right to trial by jury in cases where the punishment for conviction thereof may exceed thirty days imprisonment or fine of more than $500 or both such fine and imprisonment and of his right to appear and defend in person or by counsel."
It was pointed out that Section 40-18-15 would now be listed as superseded.
Judge Erickstad suggested that Judge Pearce work with Judge Smith and the staff on the applicable statutes. This was agreeable to all parties.
Acting Chairman Glaser called for a show of hands on the question of whether the Committee should attempt to prescribe when a jury trial is available. A hand vote showed seven in favor and three(including the acting chairman) opposed.
The Committee then considered the language in Rule 23, Trial by Jury or by Court, which provides the right to trial by jury. It was noted that there was no conflict with the provision as proposed in Rule 5. It was further noted that the language in Rule 23 reflected the Committee's uncertainty in interpretation of the statute at the time the Rule was adopted.
Judge Smith moved the previous question [to adopt 5(b)(3) as amended]. Acting Chairman Glaser called for a vote. The motion CARRIED, with two dissenting votes.
Paul Sand noted for the RECORD that he voted "aye" with the understanding that the Committee would look to Rule 23 and make the necessary changes.
Judge Muggli indicated a similar feeling as his reason for voting in the affirmative.
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Acting Chairman Glaser called for consideration of subsection (c) of Rule 5, Right to Preliminary Examination. Judge Smith read that subsection, as follows:
"Rule 5. Initial Appearance Before the Magistrate.
"(c) Right to Preliminary Examination.
"(1) Waiver. The defendant shall not be called upon to plead. If the defendant waives preliminary examination, the magistrate shall hold him to answer in the district court having jurisdiction to try the case. The magistrate shall admit him to bail pursuant to the provisions of Rule 46.
"(2) Non-waiver. If the defendant does not waive preliminary examination, a magistrate of the county in which the offense was allegedly committed shall hear the evidence within a reasonable time. The magistrate shall admit him to bail pursuant to the provisions of Rule 46."
Judge Smith MOVED the adoption of Rule 5(c). Judge Glaser noted that the original Rule 5(c) was considerably more extensive than Judge Smith's present proposal and suggested that since Rule 5.1 was taken in part from 5(c) of the original adoption, that Rule 5.1 should be considered in conjunction with 5(c)(1) and (2) as proposed.
Judge Smith then read his proposal for Rule 5.1 as follows:
"Rule 5.1 Preliminary Examination.
"(a) Probable Cause Finding.
If it appears from the evidence that there is probable cause to believe that an offense has been committed and that the defendant committed it, the magistrate shall forthwith hold him to answer in a trial court of the county having jurisdiction of the offense. The finding of probable cause shall be based upon substantial evidence. The defendant may cross-examine witnesses testifying against him and may introduce evidence in his own behalf. The magistrate may receive evidence that would be inadmissable at the trial. Motions to suppress must be made to the trial court as provided in Rule 12.
"(b) Discharge of the Defendant.
If it appears from the evidence that there is no probable cause to believe that an offense had been committed or that the defendant committed it, the magistrate shall dismiss the complaint and discharge the defendant. The discharge of the defendant shall not preclude the government from instituting a subsequent prosecution for the same offense.
"(c) Records.
At the conclusion of the preliminary examination the magistrate shall transmit forthwith to the clerk of the trial court having jurisdiction of the offense all papers in the proceeding, any bail taken by him, and all exhibits received in the examination."
Before moving the adoption of Rule 5.1, Judge Smith suggested that reference to trial court in subsection (c) should be changed to "district court", because the district court is the only court in the state which receives any bind-overs from other courts. However, it was the Committee's wish to continue the reference to the trial court rather than the district court.
Judge Glaser noted that 5(c) as previously adopted contained language which made reference to copies of transcripts and cost, etc., and questioned the exclusion of that language. Judge Smith suggested this language deficiency could be handled by not superseding some statutes from which the language was borrowed.
Judge Muggli called the Committee's attention to the words "substantial evidence" in 5.1(a). It was noted that the language was adopted from the Preliminary Draft of the Proposed Amendments to the Federal Rules. Mr. Travis noted that the language which Judge Muggli made reference to (substantial evidence) was the same language that was recommended by the Bar of the City of New York not to be included in Rule 4.
Judge Glaser called the Committee's attention to the Explanatory Note, Rule 5.1, page 2, the indented paragraph which states that "The State has no appeal from errors of law committed by a magistrate upon preliminary examination", and cited the Wisconsin case Tell v. Wolke, [21 Wis.2d 613, 124 NW 2d 655 (1963)]. He noted that such is not the case in North Dakota, as the state can appeal findings
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of a preliminary examination. It was his opinion that such language was misleading and he suggested that it be omitted. (Reference to this provision is noted in Section 29-07-18, NDCC.)
Mr. Shaft, referring to the language in the Journal of the Bar of the City of New York, noted that it suggests that there were three significant changes in Rule 5.1 from the present Federal Rule--one of which, he noted, is a reference to substantial evidence in the discussion on probable cause. He noted that the article had recommended that the language was unnecessary.
Judge Smith recommended that the Committee strike the second and fourth sentences of subsection 5.1(a), beginning "The finding of probable cause..." and "The magistrate may receive..." Acting Chairman Glaser suggested taking one sentence at a time, noting that two separate concepts are involved. He suggested that Judge Smith make a motion to that effect.
Judge Smith MOVED that the second sentence, which reads "The finding of probable cause shall be based upon substantial evidence" be deleted. The motion was SECONDED by John Shaft. There was no further discussion, the vote was taken and the motion CARRIED.
In discussing the fourth sentence, whereby a magistrate may receive evidence not admissible in trial, Judge Smith stated that his understanding of the rules of evidence were that the magistrate is not strictly bound by the rules of evidence in trial. He therefore suggested eliminating such a provision in order to preclude the magistrate from concluding that he could not overrule any objection, and also to prevent the states attorneys from concluding that they could include all available evidence. It was noted that the word "may" is included in the sentence to make it discretionary on the part of the judge.
Judge Pearce recommended retaining the sentence. He noted that the correspondence which he had received from Washington (due to his position as Federal magistrate) indicated that there has been tremendous confusion nationwide on the part of U.S. magistrates as to the admissibility of hearsay evidence in a preliminary examination. The reason for this is that the present Rule does not give guidance on this issue.
A discussion over the admissibility of evidence at a preliminary examination followed. Judge Murray noted for the record that preliminary examinations historically were taken in the form of affidavits.
Based on the lengthy discussion, Acting Chairman Glaser asked Judge Smith whether he still wished to make his motion to delete the fourth sentence of Rule 5.1(a). Judge Smith indicated in the affirmative; however, the motion FAILED for lack of second.
Acting Chairman Glaser then called the Committee's attention to Rule 5(c)(1) and (2). Judge Muggli MOVED the adoption of 5(c).The motion was SECONDED by Mr. Sand. The question was called and the vote was unanimous in favor of the motion. Rule 5(c) is adopted. (See Appendix A for final form of Rule 5 as adopted)
Rule 5.1 was then considered for adoption. Judge Muggli MOVED the adoption of Rule 5.1 as amended. This was SECONDED by Paul Sand. Judge Muggli noted that the motion included the change of the word "government" to "prosecution" in subsection (b) and also that the second sentence in subparagraph (a) was deleted.
Acting Chairman Glaser suggested inserting the language in 5(c)(2) as adopted on November 21, 1969 into 5.1(c). It was noted by Judge Erickstad that there had been considerable discussion over the language as adopted in Rule 5(c)(2) at that time.
Judge Muggli suggested adapting the language as previously adopted from Rule 5(c)(2) [beginning with "A verbatim record" and ending with "undue hardship"] and include it in Rule 5.1(c). The language suggested for inclusion in 5.1(c) is as follows:
"A verbatim record of the proceedings in the preliminary hearing shall be made under the direction of the magistrate if a request therefor is made by either the State or the defendant. A copy of a transcript of such record of proceedings shall be furnished to the defendant and to the State if either party requests the same. If a transcript is requested
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by the defendant, its cost shall be borne by the county wherein the venue of the alleged offense was originally laid if the magistrate finds that the defendant is financially unable to pay for it without undue hardship."
5(d)--"At the conclusion of the preliminary examination the magistrate shall transmit forthwith to the clerk of the trial court having jurisdiction of the offense all papers and proceedings, any bail taken by him, and all exhibits received in the examination."
Judge Muggli MOVED the inclusion of this language in Rule 5.1(c), with subsection (c) entitled "Record" (omitting the plural).
Acting Chairman Glaser called for the vote. The motion CARRIED unanimously.
Acting Chairman Glaser noted that a motion would be in order for the adoption of the entire Rule 5.1. Judge Muggli MOVED the adoption of the entire Rule 5.1. This was SECONDED by Paul Sand. The vote was unanimous and the motion CARRIED.
SUGGESTIONS:
Before the meeting was adjourned, the staff requested the Committee's guidance to facilitate a speedier accomplishment of the Committee's objective.
Judge Muggli suggested that an answer might be to utilize the legislative method of showing additions or deletions from the rule as adopted from the rule as presented.
Judge Erickstad suggested this might be impossible and suggested that the individual member responsible for the rule familiarize himself with any changes and appraise the Committee of these changes.
It was finally agreed that the procedure to be followed would be for the staff to prepare an explanatory sheet indicating the changes that have been made, if any. Beyond Rule 20, the Rule would remain as previously adopted, but if there were suggested changes, or if the author felt that such changes were necessary, then the author should come prepared to advise the Committee of the proposed changes.
Judge Smith suggested that the explanatory notes should be a little shorter, because if they are too long, he felt they wouldn't be read.
Judge Erickstad, summing up the wishes of the Committee, stated that the Committee on final adoption of the rules would not be preparing new rules but rather would update the present rules, noting that this is to be a culminating effort rather than an entirely new effort. This would require the staff to prepare short annotations, references to statutes superseded, and references to source materials.
The Committee ADJOURNED at 12:35 p.m.
Next scheduled meeting date: March 23-24-25, 1972
Respectfully submitted,
Charles M. Travis
Criminal Code Reviser
Joseph H. Louwagie
Assistant Code Reviser
Donna M. Fischer
Secretary
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ERRATA SHEET: Minutes of Rules Committee meeting of November 18, 1971.
1. On page one, under 3(c), add a comma after "September"; add a comma after the word "meeting"; and add the word "the" after "as well as". The sentence would thus read; "at the September, 1971 meeting, as well as the working draft ...".
2. On page two, under 4(c), add a comma after the phrase "John Graham explained"; Also add a comma after the words "presiding Judge" in the second line.
3. On page 3, paragraph 6, the words "as temporary" in the last line should be deleted with the word "Acting" placed in lieu thereof.
4. On page 9, in the fourth paragraph, the word "recessed" should be inserted in lieu of the word "adjourned".
5. On page 15, in the fourth full paragraph, add a comma after the number 2 at the end of the second line; add a comma after (iii) in the third line; switch the wording in line 4 to read "requires automatically" rather than "automatically requires"; and at the end of that line add a comma after the word "secondly"; In addition, the comma after the first word "apply" in line six should be changed to a semicolon.
6. In the fifth full paragraph on page 15, the comma after "bond" in the second line should be deleted.
7. On page 16, in the second line at the top of the page, a comma should be inserted after the wording, "He also noted that on page 62".
8. On page 16, in the third full paragraph, the word "a" should be added before the word "hearing" and a comma inserted thereafter. It would thus read; "an application, a hearing, and a review".
9. On page 17, in the eighth paragraph, the words "uniform release on bail act", should be capitalized and placed in quotations.
10. On page 19, the first two lines should be reworded to read; "The reply to this was in the affirmative. There being no further discussion, the vote was called and the motion carried."
11. On age 21 in the third full paragraph, in line 3, add a comma after (f)(3); add a comma after "enforcement"; add a comma after the phrase "on page 4"; and add a semicolon after the word "reading". In the fourth line, add a period after the word "prescribes" and delete the phrase "back in there" placing in lieu thereof the word "reinserted". The sentence thus reads; "in paragraph (f)(3), Enforcement, on page 4, reading; "the motion and notice of the motion prescribes". The word "such" should be reinserted.
12. In the second to the last paragraph on page 21, the phrase "release of material witnesses" should be capitalized (1st letter) and the word "in" deleted; a comma should be added after "sentence"; and a semicolon should be added after the word "says".
13. On page 22, in the second line of the second full paragraph the phrase "put any" (reasons) should be deleted and the word "state" inserted in lieu thereof.
14. On page 24, in the 12th line from the top of the page, a comma should be inserted after the word "continuance", and the phrase "to require to be out on a calendar" in line 13, should be rewritten to read: "required to be placed on a calendar". In line 14, the word "witness" should be followed by a period; the word "however" deleted; and the word "it" now starting a new sentence should be capitalized.
15. On page 24, under "Agenda Item # 5, a comma should be inserted after "Rule 51"; parenthesis should be placed around "Exceptions Unnecessary"; and the word "on" preceding this phrase should be deleted.
16. On page 25, the paragraph beginning with "section 29-21-12" should be reworded to read; "Section 29-21-12 makes applicable the rule of evidence in civil as well as to criminal cases, unless otherwise provided in Title 29, N.D.C.C.".
17. On page 36, in the second to the last line, the phrase "a discretion" should be reworded to read "discretionary".
18. On page 38, the word "is" at the beginning of line 2 should be deleted and the word "was" inserted in lieu thereof.
*It should be reemphasized that any changes made in the minutes were changes of style only, and that there were no substantive corrections to the minutes.