Joint Procedure Committee Meeting

Scheduled on Thursday, October 12, 1978 @ 2:00 PM

MINUTES OF MEETING

Joint Committee of the Judicial Council
and the State Bar Association
Joint Procedure Committee

October 12-13, 1978

CALL TO ORDER

The meeting was called to order at 1:00 p.m., October 12, 1978, by Justice Paul M. Sand, Chairman.

ATTENDANCE

Present:

Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Hon. Halvor L. Halvorson
Mr. Ward M. Kirby
Mr. Larry Kraft
Mr. LeRoy A. Loder
Mr. Richard A. McKennett
Mr. Herbert L. Meschke
Hon. William S. Murray
Mr. David L. Peterson
Hon. Kirk Smith

Absent:

Mr. Leonard L. Bucklin
Hon. Larry Hatch
Hon. Robert C. Heinley
Mr. James L. Lamb
Mr. Russell G. Nerison
Hon. James H. O'Keefe
Mr. Calvin N. Rolfson
Hon. Robert Vogel

Staff Present:

Keith C. Magnusson
Eveleen Klaudt

APPROVAL OF MINUTES

Judge Burdick MOVED to dispense with the reading of the Minutes and that they be approved. Mr. Peterson seconded the motion. Motion CARRIED.

SBAND POLL

Judge Burdick MOVED that the staff attorney be instructed to develop a rule requiring the filing party to give notice to all other parties that the case has been filed, along with the file number of that case, and that this not be done until after the answer has been filed. Mr. Kirby seconded the motion. Motion CARRIED.

RULE 12, NDRCrimP

Judge Burdick MOVED to amend the suggested Rule 12 on line 51, after the word "court" delete the word "for" and insert in lieu thereof the words "upon a finding of". Mr. McKennett seconded the motion. Motion CARRIED.

-2-

Judge Burdick MOVED to amend Rule 12, NDRCrimP, line 53, as follows: After the word "but" delete the word "such"; delete the word "shall" and insert "may" so that the underscored language will read "but no determination may be deferred". Mr. Meschke seconded the motion. Motion CARRIED.

Judge Glaser MOVED to adopt Rule 12(e), NDRCrimP, as amended. Judge Burdick seconded the motion. Motion CARRIED.

(e) Ruling on Motion.

A motion before trial shall be determined before trial unless the court, upon finding of good cause, orders that it be deferred for determination at the trial of the general issue or until after verdict, but no determination may be deferred if a party's right to appeal is adversely affected. If factual issues are involved in determining a motion, the court shall state its essential findings on the record.

RULE 12, NDRCrimP - Committee Notes

The staff attorney is to draft a note for this Rule to be considered at the next meeting.

RULE 12.1, NDRCrimP

Mr. Peterson MOVED to delete the underscored language on lines 22, 23 and 24. Judge Burdick seconded the motion. Motion CARRIED.

Judge Burdick MOVED that the staff attorney prepare amendments to Rule 12.1(a) and (b) regarding demand by prosecuting attorney. Mr. Loder seconded the motion. Motion CARRIED by a vote of 6-4.

Judge Glaser MOVED that the staff attorney re-draft the amendment to Rule 12.1(f), NDRCrimP, that would comply with the spirit of the language as written but making it clearer that statements made are permissible for impeachment purposes. Judge Burdick seconded the motion. Motion CARRIED.

RULE 12.2, NDRCrimP

Mr. Peterson MOVED that the staff attorney re-draft the language of Rule 12.2 to conform with the statutory language we now have. Judge Burdick seconded the motion. Motion CARRIED.

NEXT MEETING

The next meeting will be held on December 7, 1978, at 1:00 p.m., and continue all day December 8.

-3-

RULE 15, NDRCrimP

Judge Burdick MOVED that the staff attorney prepare a draft of Rule 15 following the uniform rules. Judge Murray seconded the motion. Motion CARRIED.

RECESS

The meeting recessed to 9:00 a.m., October 13, 1978.

CALL TO ORDER

The meeting was called to order at 9:00 a.m., Friday, October 13, 1978, by Justice Paul M. Sand, Chairman.

ATTENDANCE

Present:

Absent:

Mr. Leonard H. Bucklin
Hon. Larry Hatch
Hon. Robert C. Heinley
Mr. James L. Lamb
Mr. Russell G. Nerison
Hon. James H. O'Keefe
Hon. Kirk Smith
Hon. Robert Vogel

RULE 16, NDRCrimP

Judge Burdick MOVED to amend Rule 16, line 27 and following the underscored language to read as follows: "was an officer or employee of the corporation with respect to activities carried on or knowledge acquired within the scope of or reasonably related to his employment." Judge Murray seconded the motion. Motion LOST on a vote of 4 yes, 5 no.

Judge Glaser MOVED that the amendment to Rule 16(b) be adopted as suggested. Mr. Meschke seconded the motion. Motion CARRIED.

Judge Burdick MOVED to not accept the amendment to Rule 16(a) on lines 22 and 23. Judge Murray seconded the motion. Motion LOST.

Judge Burdick MOVED to amend the language of Rule 16(a), lines 22 and 23 to read: "concerning the offense charged." Judge Murray seconded the motion. Motion CARRIED.

Judge Murray MOVED to adopt Rule 16, NDRCrimP, as amended. Mr. McKennett seconded the motion. Motion CARRIED.

-4-

RULE 16. Discovery and Inspection.

(a) Defendant's Statements; Reports of Examinations and Tests; Defendant's Grand Jury Testimony.

Upon motion of a defendant the court may order the prosecuting attorney to permit the defendant to inspect and copy or photograph any relevant (1) written or recorded statements or confessions made by the defendant, or copies thereof, within the possession, custody, or control of the prosecution, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney; (2) the substance of any oral statement which the prosecutor intends to offer in evidence at the trial made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be an agent for the government; (3) results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession, custody, or control of the prosecution, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney; and (4) recorded testimony of the defendant before a grand jury concerning the offense charged.

(b) Grand Jury Testimony when Defendant is a Corporation, Partnership, Association, or Labor Union.

Where the defendant is a corporation, partnership, association, or labor union the court may grant the defendant, upon its motion, discovery of relevant recorded testimony of any witness before a grand jury who (1) was, at the time of his testimony, so situated as an officer or employee as to have been able legally to bind the defendant in respect to conduct constituting the offense, or (2) was, at the time of the offense, personally involved in the alleged conduct constituting the offense and so situated as an officer or employee as to have been able legally to bind the defendant in respect to that alleged conduct in which he was involved.

Upon motion of a defendant the court may order the prosecuting attorney to permit the defendant to inspect and copy or photograph books, papers,

-5-

documents, tangible objects, buildings, or places, or copies or portions thereof, which are within the possession, custody, or control of the prosecution, upon a showing of materiality to the preparation of his defense or that they are intended for use by the prosecutor as evidence in chief at the trial and that the request is reasonable. Except as provided in subsection (a)(3), this Rule does not authorize the discovery or inspection of reports, memoranda, or other internal prosecution documents made by prosecution agents in connection with the investigation or prosecution of the case, or of statements made by prosecution witnesses or prospective prosecution witnesses (other than the defendant) to agents of the prosecution except as provided in subsection (i) of this Rule.

(d) Discovery by the Prosecution.

If the court grants relief sought by the defendant under subsection (a)(3) or subdivision (c) of this Rule it may, upon motion of the prosecution, condition its order by requiring that the defendant permit the prosecution to inspect and copy or photograph scientific or medical reports, books, papers, documents, tangible objects, or copies or portions thereof, which the defendant intends to produce in chief at the trial and which are within its possession, custody, or control. Except as to scientific or medical reports, this subdivision does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant, or his attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant, or by prosecution or defense witnesses, or by prospective prosecution or defense witnesses, to the defendant, or his agents or attorneys.

(e) Time, Place, and Manner of Discovery and Inspection.

An order of the court granting relief under this Rule shall specify the time, place, and manner of making the discovery and inspection permitted and may prescribe such terms and conditions as are just.

(f) Protective Orders.

Upon a sufficient showing the court at any time may order that the discovery or inspection be

-6-

denied, restricted, or deferred or make such other order as is appropriate. Upon motion by a party, the court may permit the party to make such showing, in whole or in part, in the form of a written statement to be inspected by the court in camera. If the court enters an order granting relief following a showing in camera, the entire text of the party's statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.

(g) Time of Motion.

A motion under this Rule may be made before or within 10 days after a plea is entered or at such reasonable later time as the court may permit. The motion shall include all relief sought under this Rule. A subsequent motion may be made only upon a showing of cause why such motion would be in the interest of justice.

(h) Continuing Duty to Disclose; Failure to Comply.

If, subsequent to compliance with an order issued pursuant to this Rule, and prior to or during trial, a party discovers additional material previously requested or ordered which is subject to discovery or inspection under the Rule, he shall promptly notify the other party or his attorney or the court of the existence of the additional material. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Rule or with an order issued pursuant to this Rule, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems just under the circumstances.

(i) Demands for Production of Statements and Reports of Witnesses.

(1) In any criminal prosecution no statement or report in the possession of the prosecution which was made by a prosecution witness or prospective prosecution witness (other than the defendant) to an agent of the prosecution shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination.

-7-

(2) After a witness called by the prosecuting attorney has testified on direct examination, the court shall, on motion of the defendant, order the prosecuting attorney to produce any statement (as hereinafter defined) of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.

(3) If the prosecuting attorney claims that any statement ordered to be produced under this section contains matter which does not relate to the subject matter of the testimony of the witness, the court shall order the prosecuting attorney to deliver such statement for the inspection of the court in camera. Upon such delivery the court shall excise the portions of such statement which do not relate to the subject matter of the testimony of the witness. With such material excised, the court shall then direct delivery of such statement to the defendant for his use. If, pursuant to such procedure, any portion of such statement is withheld from the defendant and the defendant objects to such withholding, and the trial is continued to an adjudication of the guilt of the defendant, the entire text of such statement shall be preserved by the court and, in the event the defendant appeals, shall be made available to the appellate court for the purpose of determining the correctness of the ruling of the trial judge. Whenever any statement is delivered to a defendant pursuant to this section, the court in its discretion, upon application of said defendant, may recess proceedings in the trial for such time as it may determine to be reasonably required for the examination of such statement by said defendant and his preparation for its use in the trial.

(4) If the prosecuting attorney elects not to comply with an order of the court under subsections (2) or (3) hereto to deliver to the defendant and such statement, or such portion thereof as the court may direct,

-8-

the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.

(5) The term "statement," as used in subsections (2), (3) and (4) of this subdivision in relation to any witness called by the prosecuting attorney, means:

(i) a written statement made by said witness and signed or otherwise adopted by him; or

(ii) A stenographic, mechanical, electrical, or other record, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the prosecution and recorded contemporaneously with the making of such oral statement.

RULE 17, NDRCrimP

Mr. Peterson MOVED to adopt Rule 17 with the suggested amendments. Mr. Loder seconded the motion. Motion CARRIED.

(f) For Taking Deposition; Place of Examination.

(1) Issuance.

An order to take a deposition authorizes the issuance by the clerk of court or a magistrate or subpoenas for the persons named or described therein.

(2) Place.

A witness whose deposition is to be taken may be required by subpoena to attend at any place designated by the trial court, taking into account the convenience of the witness and the parties.

RULE 20, NDRCrimP

Mr. Loder MOVED to not adopt the suggested amendments to Rule 20. Mr. Peterson seconded the motion. Motion LOST.

Judge Burdick MOVED to amend Rule 20, line 3, to read: "in any county". Mr. Loder seconded the motion. Motion CARRIED.

-9-

Mr. McKennett MOVED to adopt Rule 20, as amended. Mr. Loder seconded the motion. Motion CARRIED.

RULE 20. Transfer from the County for Plea and Sentence.

(a) Indictment, Information, or Complaint Pending.

A defendant arrested, held, or present in any county other than in which the indictment, information, or complaint is pending against him may state in writing that he wishes to plead guilty, to waive trial in the county in which the indictment, information, or complaint is pending and to consent to disposition of the case in the county in which he was arrested, held, or present, subject to the approval of the prosecuting attorney for each county. Upon receipt of the defendant's statement and of the written approval of the prosecuting attorneys, the clerk of the court or the court in which the indictment, information, or complaint is pending shall transmit the papers in the proceeding or certified copies thereof to the clerk of the court or court for the county in which the defendant is held or present and the prosecution shall continue in that county.

(b) Effect of Not Guilty Plea.

If, after the proceeding has been transferred pursuant to subdivision (a) of this Rule, the defendant pleads not guilty, the clerk of court or the court shall return the papers to the court in which the prosecution was commenced and the proceeding shall be restored to the docket of that court. The defendant's statement that he wishes to plead guilty shall not be used against him without his consent.

RULE 29. 1, NDRCrimP

Judge Burdick MOVED not to adopt Rule 29.1. Mr. Loder seconded the motion. Motion CARRIED.

Judge Burdick MOVED that the words "Reserved for future use" be placed at the heading of this rule. Mr. Loder seconded the motion. Motion CARRIED.

RECESS

The meeting recessed to 1:00 p.m.

-10-

CALL TO ORDER

The meeting was called to order at 1:00 p.m., Friday, October 13, 1978, by Justice Paul M. Sand, Chairman.

ATTENDANCE

Present:

Hon. Eugene A. Burdick

Hon. Halvor L. Halvorson

Mr. Larry Kraft

Mr. LeRoy A. Loder

Mr. Richard A. McKennett

Mr. Herbert L. Meschke

Hon. William S. Murray

Mr. David L. Peterson

Absent:

Mr. Leonard L. Bucklin

Hon. Gerald G. Glaser

Mr. Ward M. Kirby

Hon. Larry Hatch

Hon. Robert C. Heinley

Mr. James L. Lamb

Mr. Russell G. Nerison

Hon. James H. O'Keefe

Mr. Calvin N. Rolfson

Hon. Kirk Smith

Hon. Robert Vogel

RULE 32, NDRCrimP

Mr. Kraft MOVED to amend Rule 32, lines 39 through 45, to read as follows: "The report shall not be submitted to the court or its contents disclosed unless the defendant has pleaded guilty, has been found guilty, or has consented." Mr. McKennett seconded the motion. Motion CARRIED.

Mr. Meschke MOVED to adopt the suggested language to Rule 32(c)(3)(i). Mr. Peterson seconded the motion. Motion CARRIED.

Mr. Peterson MOVED to reject the suggested amendment to Rule 32(c)(3)(iv). Motion LOST for lack of a second.

Mr. McKennett MOVED to adopt the suggested amendment to Rule 32(c)(3)(iv). Mr. Meschke seconded the motion. Motion CARRIED.

Mr. Peterson MOVED to adopt the suggested amendments to Rule 32(f)(1). Mr. McKennett seconded the motion. Motion CARRIED.

Mr. Meschke MOVED to adopt Rule 32, NDRCrimP, as amended. Mr. Peterson seconded the motion. Motion CARRIED.

RULE 32. Sentence and Judgment.

(a) Sentence.

(1) Imposition of Sentence.

Sentence shall be imposed or other authorized disposition made without unreasonable delay. Pending disposition the court may commit the defendant or continue or alter the bail.

-11-

Before imposing sentence the court shall (a) afford counsel an opportunity to speak on behalf of the defendant, and (b) address the defendant personally, except as provided by Rule 43, to determine whether he wishes to make a statement in his own behalf or wishes to present any information in mitigation of punishment or which would require the court to withhold pronouncement of judgment and sentence: if the defendant expresses a desire to do so, the court shall provide him with such opportunity. The prosecution shall be given an opportunity to be heard on any matter material to the imposition of sentence.

(2) Notification of Right to Appeal.

After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of his right to appeal and of the right of the person who is unable to pay the costs of an appeal to apply for appointment of counsel for purposes of appeal. There shall be no duty on the court to advise the defendant of any right of appeal after sentence is imposed following a plea of guilty.

(b) Judgment.

A judgment of conviction shall set forth the plea, the verdict, and the adjudication of sentence. If the defendant is found not guilty or for any other reason is entitled to be discharged, judgment shall be entered accordingly. The judgment shall be signed by the judge and entered by the clerk.

(1) When made.

The court may order a presentence investigation and report at any time. The report shall not be submitted to the court or its contents disclosed unless the defendant has pleaded guilty, has been found guilty, or has consented.

(2) Report.

The report of the presentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition and the circumstances affecting his behavior

-12-

as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the court.

(3) Disclosure.

(i) Before imposing sentence the court shall permit the defendant, and his counsel if he is so represented, to read the report of the presentence investigation unless in the opinion of the court the report contains information which if disclosed would be harmful to the defendant or other persons; and the court shall afford the defendant or his counsel an opportunity to comment thereon and, at the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in the presentence report.

(ii) If the court is of the view that there is information in the presentence report, disclosure of which would be harmful to the defendant or to other persons, the court in lieu of making the report or part thereof available shall state orally or in writing a summary of the factual information contained therein to be relied on in determining sentence, and shall give the defendant or his counsel an opportunity to comment thereon. The statement may be made to the parties in camera.

(iii) Any material disclosed to the defendant of his counsel shall also be disclosed to the prosecuting attorney.

(iv) Any copies of the presentence investigation report made available to the defendant or his counsel and of the prosecuting attorney shall be returned to the court immediately following the imposition of sentence or the granting of probation. Copies of the presentence report shall not be made by the defendant, his counsel, or the prosecuting attorney, unless the court, in its discretion, otherwise directs.

-13-

(d) Plea Withdrawal.

(1) The court should allow the defendant to withdraw his plea of guilty whenever the defendant, upon a timely motion for withdrawal, proves that withdrawal is necessary to correct a manifest injustice.

(2) A motion for withdrawal is timely if made with due diligence, considering the nature of the allegations therein, and is not necessarily barred because made subsequent to judgment or sentence.

(3) In the absence of a showing that withdrawal is necessary to correct a manifest injustice, a defendant may not withdraw his plea of guilty as a matter of right once the plea has been accepted by the court. Before sentence, the court in its discretion may allow the defendant to withdraw his plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant's plea.

(e) Probation.

After conviction of an offense, the defendant may be placed on probation as provided by law.

(f) Revocation of Probation Where the Court Retains Jurisdiction Under the Law.

(1) Taking into Custody.

Upon probable cause to believe that a probationer has violated a condition of his probation, any State parole officer, or any peace officer upon direction of a State parole officer or upon discretion or order of the court having jurisdiction may take the probationer into custody and thereafter shall forthwith bring him before the court which originally placed him upon probation for a hearing on the alleged violation. Costs incurred in bringing the probationer before the court shall be borne by the county wherein the probation was granted. The defendant may be admitted to bail pending the hearing.

(2) The hearing shall be in open court with:

(i) The probationer present,

(ii) A prior written notice of the alleged violation given to the probationer, and

-14-

(iii) Representation by retained or appointed counsel unless waived.

Where the violation is contested, the prosecution must establish the violation by a preponderance of the evidence. Upon the hearing, the court, subject to limitations imposed by law, may revoke an order suspending a sentence or an order deferring the imposition of sentence, or continue probation on the same or different conditions, as the circumstances warrant. A record of the proceedings shall be made and preserved in such a manner that it can be transcribed as needed.

RULE 43, NDRCrimP

Judge Burdick MOVED to amend Rule 43, line 12, by striking "In noncapital cases,". Mr. McKennett seconded the motion. Motion CARRIED.

Mr. Loder MOVED to adopt Rule 43, with suggested amendments. Judge Halvorson seconded the motion. Motion CARRIED.

RULE 43. Presence of the Defendant.

(a) Presence Required.

The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this Rule.

(b) Continued Presence Not Required.

The further progress of the trial to and including the return of the verdict shall not be prevented whenever a defendant, initially present,

(1) Voluntarily absents himself after the trial has commenced, or

(2) After being warned by the court that disruptive conduct will cause him to be removed from the courtroom, persists in conduct which is such as to justify his being excluded from the courtroom.

A defendant need not be present in the following situations:

-15-

(1) A corporation may appear by counsel for all purposes.

(2) In prosecutions for offenses punishable by fine of by imprisonment for not more than one year or both, the court, with the written consent of the defendant, may permit arraignment, plea, trial, and imposition of sentence in the defendant's absence.

(3) The defendant's presence is not required at a reduction of sentence under Rule 35.

RULE 54(b), NDRCrimP

Judge Burdick MOVED to adopt the amendment to Rule 54(b). Judge Halvorson seconded the motion. Motion CARRIED.

RULE 54. Application and Exception.

(b) Proceedings.

(3) Mental Health and Tuberculosis Board Proceedings. These Rules do not apply to proceedings had for the purpose of determining whether a proposed patient should be ordered committed to the State Hospital at Jamestown or any other hospital or school for the mentally ill or mentally deficient or tubercular persons as may be authorized by Title 25, N.D.C.C., or other laws.

RULE 41, NDRCrimP

Mr. Peterson MOVED to adopt draft No. 1 of Rule 41, NDRCrimP (federal draft). Mr. Kraft seconded the motion.

Judge Burdick MOVED a substitute motion to amend Rule 41, as follows: Line 16 add "or sworn recorded testimony"; line 49, delete "oral testimony" and insert "remote communications"; lines 52, 69 and 117, delete the words "a written affidavit" and substitute "the requisites of paragraph (1) for the issuance of a warrant". Mr. Meschke seconded the motion. Motion CARRIED.

Judge Burdick MOVED to adopt Rule 41, as amended. Mr. Peterson seconded the motion. Motion CARRIED.

RULE 41. Search and Seizure.

(a) Authority to Issue Warrant.

A search warrant authorized by this Rule may be

-16-

issued by a State or Federal magistrate acting within or for the territorial jurisdiction wherein the property sought is located or from which it has been removed.

(b) Property Which May Be Seized with a Warrant.

A warrant may be issued under this Rule to search for and seize any (1) property that constitutes evidence of the commission of a criminal offense; or (2) contraband, the fruits of crime, or things otherwise criminally possessed; or (3) property designed or intended for use or which is or has been used as the means of committing a criminal offense.

(1) Warrant Upon Affidavit Or Sworn Recorded Testimony.

A warrant other than a warrant upon oral testimony under subdivision (c)(2) shall issue only on an affidavit or affidavits sworn to or sworn recorded testimony taken before a State or Federal magistrate and establishing the grounds for issuing the warrant. If the State or Federal magistrate is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing with particularity the person or place to be searched. The finding of probable cause may be based upon hearsay evidence in whole or in part. Before ruling on a request for a warrant the State or Federal magistrate may require the affiant or other witnesses to appear personally and may examine under oath the affiant and any witnesses he may produce, provided that such proceedings shall be taken down by a court reporter or recording equipment and made part of the proceedings. The warrant shall be directed to a peace officer authorized to enforce or assist in enforcing any law of this State. It shall command the officer to search, within a specified period of time not to exceed 10 days, the person or place named for the property specified. The warrant shall be served in the daytime, unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime. It shall designate a State or Federal magistrate to whom it shall be returned.

-17-

(2) Warrant Upon Remote Communications.

(i) General Rule.

If the circumstances make it reasonable to dispense with the requisites of paragraph (1) for the issuance of a warrant, a State or Federal magistrate may issue a warrant based upon sworn oral testimony communicated by telephone or other appropriate means.

(ii) Application.

The person who is requesting the warrant shall prepare a document to be known as a duplicate original warrant and shall read the duplicate original warrant, verbatim, to the magistrate. The magistrate shall enter, verbatim, what is so read to the magistrate on a document to be known as the original warrant. The magistrate may direct that the warrant be modified.

(iii) Issuance.

If the magistrate is satisfied that the circumstances are such as to make it reasonable to dispense with the requisites of paragraph (1) for the issuance of a warrant and that grounds for the application exist or that there is probable cause to believe that they exist, the magistrate shall order the issuance of a warrant by directing the person requesting the warrant to sign the magistrate's name on the duplicate original warrant. The magistrate shall immediately sign the original warrant and enter on the face of the original warrant the exact time when the warrant was ordered to be issued. The finding of probable cause for a warrant upon oral testimony may be based on the same kind of evidence as is sufficient for a warrant upon affidavit.

(iv) Recording and Certification of Testimony.

If a caller informs the magistrate that the purpose of the call is to request a warrant, the magistrate shall immediately place under oath each person whose

-18-

testimony forms the basis of the application and each person applying for that warrant. If a voice recording device is available, the magistrate shall record by means of the device all of the call after the caller informs the magistrate that the purpose of the call is to request a warrant. Otherwise a stenographic or longhand verbatim record shall be made. If a voice recording device is used or a stenographic record made, the magistrate shall have the record transcribed, shall certify the accuracy of the transcription, and shall file a copy of the original record and the transcription with the court. If a longhand verbatim record is made, the magistrate shall file a signed copy with the court.

(v) Contents.

The contents of a warrant upon oral testimony shall be the same as the contents of a warrant upon affidavit.

(vi) Additional Rules for Execution.

The person who executes the warrant shall enter the exact time of execution on the face of the duplicate original warrant.

(vii) Motion to Suppress Precluded.

Absent a finding of bad faith, evidence obtained pursuant to a warrant issued under this subdivision is not subject to a motion to suppress on the ground that the circumstances were not such as to make it reasonable to dispense with the requisites of paragraph (1) for the issuance of a warrant.

(d) Execution and Return With Inventory.

The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken, if he is present, or, if not present, shall leave the copy and receipt at the place from which the property was taken. The return shall be made

-19-

promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, and shall be verified by the officer. The magistrate shall upon request deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant.

(e) Motion for Return of Property.

A person aggrieved by an unlawful search and seizure may move the trial court for the return of the property on the ground that he is entitled to lawful possession of the property which was illegally seized. The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be restored and it shall not be admissible in evidence at any hearing or trial. If a motion for return of property is made or comes on for hearing in the trial court after an indictment, information, or complaint is filed, it shall be treated also as a motion to suppress under Rule 12.

(f) Motion to Suppress.

A motion to suppress evidence may be made in the trial court as provided in Rule 12.

(g) Return of Papers to Clerk.

The magistrate before whom the warrant is returned shall attach to the warrant a copy of the return, inventory and all other papers in connection therewith and shall file them with the clerk of the trial court.

(h) Scope and Definition.

This Rule does not modify any act, inconsistent with it, regulating search, seizure and the issuance and execution of search warrants in circumstances for which special provision is made. The term "property" is used in this Rule to include documents, books, papers and any other tangible objects. The term "daytime" is used in this Rule to mean the hours from 6:00 a.m. to 10:00 p.m., according to local time.

-20-

ADJOURNMENT

Judge Burdick MOVED to adjourn. Mr. Peterson seconded the motion. Motion CARRIED.

Eveleen Klaudt
Secretary

Joint Procedure Committee Meeting

North Dakota Supreme Court

District Courts

Municipal Courts

About Us

Contact Us

Jobs With Us

Privacy Statement

Security Policy

Disclaimer