Joint Procedure Committee Meeting

Scheduled on Thursday, December 10, 1970 @ 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

December 10, 1970

The Joint Committee of the Judicial Council and the State Bar Association for the Adoption of Rules of Criminal Procedure met at 1:30 p.m., December 10, 1970, in the hearing room of the Supreme Court.

Present were:
Supreme Court Judge Ralph Erickstad, Chairman;
District Judge Eugene A. Burdick;
County Judge Kirk Smith;
District Judge Norbert J. Muggli;
First Assistant Attorney General Paul Sand;
Mr. Gerald Glaser; Mr. John Shaft; and
Former Supreme Court Judge William S. Murray.

Absent were:
Retired Supreme Court Judge James Morris;
District Judge Roy A. Ilvedson;
Mr. Robert L. Vogel;
Mr. John A. Graham; and
Mr. Roger Persinger.

Also present were
Mr. Robert Wirtz, law clerk, and
Mrs. Lorna Bender, secretary.

The chairman welcomed those present.

After the missing pages were provided for two incomplete set of minutes, Judge Muggli moved that the minutes be approved as submitted. The motion was seconded by Judge Smith, and it carried.

The chairman called on Mr. Sand, who passed out his proposed bill regarding grand juries, along with an explanatory memorandum, which follows:

GRAND JURY

To repeal Chapter 29-10 of the North Dakota Century Code and repeal Sections 29-09-08, 29-09-09, 29-09-10, 29-09-11, Subdivision g of Subsection 2 of Section 29-14-04, and to create a new chapter 29-10.1 of the North Dakota Century Code relating to the Grand Jury, its powers, duties and activities.

"29-10.1-01. 'GRAND JURY' DEFINED--FORMATION--FUNCTIONS.--A grand jury shall consist of not less than eight nor more than eleven persons of the county possessing the qualifications of jurors prescribed by law, and impaneled and sworn to inquire into and present to the district court of all crimes or public offenses against laws of this state triable within the county for which the court is held."

"29-10.1-02. WHEN GRAND JURY MAY BE CALLED.--No grand jury shall be drawn or summoned to attend at any session of the district court within this state unless the judge thereof shall so direct by order in writing under his hand and filed with the clerk of the court in the county wherein the said grand jury is required to attend. The judge of any district court in and for any county must direct, in the manner herein provided, that a grand jury be drawn and summoned to attend whenever:

"l. He shall deem the attendance of such grand jury necessary for the due enforcement of the laws of the state;

"2. The board of county commissioners of the county wherein the court is to be held, in writing, requests him so to do; or

"3. A petition in writing requesting the same is presented to said judge, signed by at least ten per cent of the total vote cast in said county for the office of governor of the state at the last general election preceding the calling of said grand jury."

"29-10.1-03. REQUEST AND PETITION FILED FIFTEEN DAYS BEFORE TERM.--The request provided for in subsection 2 of section 29-10.1-02 and the petition mentioned in subsection 3 of such section must presented to the judge, who shall within 15 days, unless a different time is stated in the petition, summon and convene the grand jury."

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"29-10.1-04. PETITION FOR GRAND JURY--PETITIONERS--NUMBER--SESSION.--The petition for a grand jury prescribed by section 29-10.1-02 shall be verified on information and belief by three legal electors of the county. The formation of a grand jury under this chapter shall not be invalidated should it appear or be proven after the said grand jury has been called or summoned that any of said petitioners therefor were not such electors and that said petition was not signed by the full ten per cent of the electors of the county. No grand jury shall remain in session for a longer period than ten working days, unless the judge of said court by written order filed with the clerk of said court continues the session thereof as may be necessary. Otherwise the grand jury shall be discharged at the close of the tenth day of its session, but Saturdays, Sundays and legal holidays and days in recess shall not be included in computing the said ten days' limitation or days extended by the court."

"29-10.1-05. CHALLENGES BY STATE OR ACCUSED.--The state, or a person held to answer a charge for a public offense, who has not had a preliminary hearing or against whom no criminal information has been filed, may challenge the panel of a grand jury or an individual grand juror."

"29-10.1-06. CHALLENGE ALLOWED--PROCEDURE.--Whenever a challenge to the panel or to an individual grand juror is allowed, the court shall make an order to the sheriff or other officer to summon without delay, from the body of the county, a sufficient number of persons to complete or to form a grand jury."

"29-10.1-07. GROUNDS FOR CHALLENGE TO PANEL.--A challenge to the panel may be interposed by the state, or person held to answer a charge for a public offense, who has not had a preliminary hearing, or against whom a criminal information has not been filed, on the ground that the grand jurors were not selected or drawn according to law."

"29-10.1-08. GROUNDS FOR CHALLENGE TO INDIVIDUAL GRAND JUROR.--A challenge to an individual grand juror may be interposed by the state or a person held to answer a charge for a public offense, who has not had a preliminary hearing or against whom a criminal information has not been filed, for one or more of the following causes only:

"1. That he does not have the qualifications of a juror as prescribed by chapter 27-09 of the title Judicial Branch of Government;

"2. That he is a prosecutor upon a charge against the defendant;

"3. That he is a witness on the part of the prosecution and has been served with process or bound by an undertaking as such;

"4. That a state of mind exists on his part which will prevent him from acting impartially and without prejudice to the substantial rights of the party challenging, but no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to the jurors, founded upon public rumor, statements in public journals, or common notoriety, if it satisfactorily appears to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him."

"29-10.1-09. CHALLENGE MUST BE BEFORE JURY IS SWORN.--Neither the state, nor a person held to answer a charge for a public offense, who has not had a preliminary hearing, or against whom no information has been filed, can take advantage of an objection to the panel or to an individual grand juror unless it is by challenge before the grand jury is sworn, except that after the grand jury is sworn and before an indictment is found, the court, upon good cause shown, receive and allow a challenge."

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"29-10.1-10. CHALLENGE MAY BE ORAL OR WRITTEN.--A challenge to the panel or to an individual grand juror may be oral or in writing and must be tried by the court."

"29-10.1-11. CHALLENGE ALLOWED OR DISALLOWED--ENTRY BY CLERK.--The court must allow or disallow a challenge to the panel of a grand jury or to an individual grand juror, and the clerk must enter its decision upon the minutes."

"29-10.1-12. IF CHALLENGE IS ALLOWED JURY DISCHARGED.--If a challenge to the panel is allowed, the grand jury must be discharged."

"29-10.1-13. EFFECT OF SUSTAINING CHALLENGE TO INDIVIDUAL GRAND JUROR.--If a challenge to an individual grand juror is allowed, he cannot be present at nor take part in the consideration of the charge against the defendant who interposed the challenge, nor the deliberations of the grand jury thereon."

"29-10.1-14. VIOLATING DISQUALIFICATION A CONTEMPT.--If a grand juror violates the provisions of section 29-10.1-13, he may be punished by the court for contempt."

"29-10.1-15. COURT MAY ORDER ANOTHER GRAND JURY.--The court may order another grand jury summoned, if:

"l. A grand jury is discharged by sustaining a challenge to the whole panel;

"2. An offense is committed during the sitting of the court, after the regular discharge of the grand jury;

"3. After such discharge, a new indictment becomes requisite by reason of an arrest of judgment or by the quashing of an indictment; or

"4. From any other good and sufficient cause another grand jury may become necessary,

and to that end forthwith may make an order to the county commissioners for the immediate selection and furnishing to the clerk of a list of jurors, and such further orders to the clerk, sheriff, and other officers for an immediate performance of their duties as may be proper to obtain another grand jury at and during the same term of the court."

"29-10.1-16. SPECIAL GRAND JURY.--If a grand jury is formed and impaneled in a particular case, after challenges to individual grand jurors have been allowed, the jurors shall be sworn only to act in such particular case, and as to all other cases at the same term of the court the grand jury shall be formed in the usual manner provided by law."

"29-10.1-17. COURT TO APPOINT FOREMAN AND VICE FOREMAN.--When the grand jury is completed, the court must appoint one of the jurors to be foreman, and another to act as foreman in case of the absence of the foreman."

"29-10.1-18. OATH OF GRAND JURORS.--The following oath must be administered to the members of the grand jury:

'You, as members of this grand jury, shall diligently inquire into, and true presentment make, of all public offenses against this state, committed or triable within this county, which shall be placed in your charge or which otherwise shall come to your knowledge. You will keep your own counsel, and that of your fellows, and of the state, and will not, except when required in the due course of judicial proceedings, disclose the testimony of any witness examined before you, nor disclose anything which you or any other grand juror may have said, nor the manner in which you or any other grand juror

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may have voted on any matter before you. You shall present no person through malice, hatred, or ill will, nor leave any unpresented through fear, favor, or affection, nor for any reward or the promise of hope thereof, but in all your presentments or indictments, you shall present the truth, the whole truth and nothing but the truth, according to the best of your skill and understanding. So help you God.'"

"29-10.1-19. COURT MUST CHARGE GRAND JURORS--DUTY OF COURT TO ADVISE GRAND JURORS.--After the grand jurors are impaneled and sworn, the court must charge them concerning the offenses that may be considered by them or that are likely to come before them, and concerning their duties as prescribed by law. The court, upon request of the grand jurors, at all reasonable times, shall advise them regarding their duties."

"29-10.1-20. RETIREMENT OF GRAND JURORS.--After the charge by the court, the grand jurors must retire to a private room which shall be provided for by the county commissioners and perform their duties as prescribed by law."

"29-0.1-21. CLERK, APPOINTMENT BY GRAND JURORS--DUTY.--The grand jury, unless a competent reporter is appointed, shall appoint a member of the jury as clerk, who must preserve minutes of all the proceedings of the jurors, and exhibits presented, except of the votes of the individual members, and of the evidence given before them. Upon the conclusion of the grand jury session, all exhibits shall be placed in the custody of the state's attorney unless otherwise directed by the court."

"29-10.1-22. STENOGRAPHIC REPORTER--TRANSCRIPT.--

"l. Unless otherwise directed by the court, the grand jury shall appoint a competent stenographic reporter who shall be sworn and who shall report in shorthand or stenotype notes, the testimony given in matters before the grand jury. When an indictment is returned and if so directed by the court, the reporter shall transcribe the testimony.

"2. When the court has directed the testimony to be transcribed, the reporter shall certify and file with the clerk of court the original and sufficient copies so as to provide a copy for each defendant and one for the prosecutor. Except as otherwise provided in this chapter, each defendant shall upon request be entitled to a copy of the transcript as same pertains to him and to the charge or indictment filed against him. The reporter shall complete such certification within thirty days from the date of its order or a shorter period of time as may be specified by the court.

"3. All exhibits presented to the grand jury shall be placed in the custody of the state's attorney unless otherwise directed by the court."

"29-10.1-23. SELECTION OF JURORS--MILEAGE AND EXPENSES.--

"1. Grand jurors shall be selected from the jury list in the same manner as petit jurors are selected, and shall receive mileage and expenses in the same amount and manner.

"2. Before accepting a person drawn as a grand juror, the court shall be satisfied that such person is duly qualified to act as such. A person drawn as a juror may be excused for good cause by the court before he is sworn."

"29-10.1-24. EXPENSES.--All expenses of the grand jury incurred in its official capacity shall be paid by the county out of the general fund."

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"29-10.1-25. SUBPOENAS.--The grand jury shall have the power to issue subpoenas or subpoenas duces tecum to any witness within the state. Such subpoenas may be issued by the state's attorney or prosecutor in the manner provided for in criminal procedures in this code."

"29-10.1-26. FILLING VACANCIES.--When the membership is reduced for any reason, after the grand jury consisting of the required number of persons has been impaneled pursuant to law, such vacancy within an existing grand jury may be filled so as to maintain the minimum full membership by the clerk of the district court in the presence of the district judge from the jury list in the same manner as the original members were selected. No person selected as a grand juror to fill a vacancy shall vote on any matter upon which evidence has been taken prior to the time of his selection."

"29-10.1-27. GENERAL DUTIES OF GRAND JURORS.--The grand juror shall inquire into the case of every person imprisoned in the jail of the county on a criminal charge who has not had a preliminary hearing and against whom no information has been filed, and into all public offenses committed or triable in the county, and if the evidence so warrants, shall present them to the court by indictment or accusation in writing. However, as to any offense committed while the grand jury is in session, the state's attorney may proceed with preliminary hearing or filing an information as provided for by law and process the criminal matter independent of the grand jury, and under such conditions the grand jury will not be required to inquire into such offense."

"29-10.1-28. SUBJECTS OF GRAND JURY INQUIRY.--A grand jury, when directed by the district court, must inquire:

"l. Into the condition and management of the public prisons in the county; and

"2. Into the willful and corrupt misconduct in office of public officials of every description in the county."

"29-10.1-29. GRAND JURORS ENTITLED TO ACCESS TO PRISONS AND PUBLIC RECORDS.--Grand jurors are entitled to free access, at all reasonable times, to public prisons, and to the examination, without charge, of all public records in the county."

"29-10.1-30. MEMBER MUST REPORT OFFENSE KNOWN TO HIM AND MUST GIVE EVIDENCE.--If a member of the grand jury knows or has reason to believe that a public offense which is triable in the county has been committed, he must declare such fact to his fellow jurors, must investigate the same. In such investigation, the grand juror may be sworn as a witness."

"29-10.1-31. OATH TO WITNESS--ADVISE OF CONSTITUTIONAL RIGHTS.--The foreman or the prosecuting officer may administer an oath to any witness appearing before the grand jury. Upon completion of the oath, the witness shall be advised of his constitutional right to remain silent on the grounds that the testimony may incriminate him and that the testimony given may be used against him. The witness may also be asked to sign a waiver of immunity for testimony he is about to give. If the witness refuses to answer questions or produce evidence of any other kind on the ground that he may be incriminated thereby, proceedings may be had under Section 31-01-09."

"29-10.1-32. RECEPTION OF EVIDENCE.--

"l. Subject to Subsection 2 of this section, in the investigation of a charge, the grand jury shall receive no other evidence than such as is:

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"A. Given by witnesses produced and sworn before the grand jury;

"B. Furnished by writings, material objects, or other things presented to the senses; or

"C. Contained in a deposition that is admissible under the rules of criminal procedure.

"2. The grand jury shall receive none but evidence that would be admissible over objection at the trial of a criminal action, but the fact that evidence which would have been excluded at trial was received by the grand jury does not render the indictment void where sufficient competent evidence to support the indictment was received by the grand jury."

"29-10.1-33. EVIDENCE OF THE ACCUSED.--The grand jurors, upon the request of the accused, if he has not had a preliminary hearing and against whom no information has been filed, shall, and, of their own motion, may, hear the evidence for the accused. It is their duty to weigh all the evidence submitted to them and when they have reason to believe that there is other evidence, they may order such evidence to be produced, and for that purpose the state's attorney shall issue process for the witnesses."

[OR, IN THE ALTERNATIVE, THE FOLLOWING:]

"29-10.1-33. EVIDENCE OF THE ACCUSED.--The grand jury is not required to hear evidence for the defendant, but it shall weigh all the evidence submitted to it, and when it has reason to believe that other evidence within its reach will explain away the charge, it shall order the evidence to be produced, and for that purpose may require the state's attorney to issue process for the witnesses."

"29-10.1-34. WHO MAY BE PRESENT DURING SESSIONS OF GRAND JURY.--No person shall be present at a session of the grand jurors other than the witnesses under examination, the state's attorney, or the assistant prosecutor appointed by the court, attorney general, and the reporter or interpreter, if any. No other person whomsoever shall be present while the grand jurors are deliberating or voting. Where the grand jury is investigating the state's attorney or any person connected with the office of state's attorney, neither the state's attorney nor any of his assistants or deputies shall be present before such grand jury during the time of such investigation, but may be present only as a witness and after such appearance as a witness has left the place where the grand jury is in session. Any person violating the provisions of this section may be held in contempt of court."

"29-10.1-35. DUTY OF STATE'S ATTORNEY.--The state's attorney, upon the request of the grand jurors, shall advise them regarding their duties. He at all reasonable times may appear before them on his own motion for the purpose of giving the grand jurors information or advice regarding any matter cognizable by them and may interrogate witnesses before them whenever he believes it necessary."

29-10.1-36. SECRECY OF THINGS SAID, AND VOTES.--Every member of a grand jury must keep secret whatever he himself or any other grand juror may have said, or in what matter he or any other grand juror may have voted on a matter before the jurors."

"29-10.1-37. WHEN JUROR MAY DISCLOSE TESTIMONY UPON ORDER OF THE COURT.--A member of a grand jury may be required by any court to disclose the testimony of a witness examined before the grand jurors for the purpose of ascertaining whether it is consistent with that given by the witness before the court, or to disclose the testimony given before them by any person, upon a charge against him for perjury in giving his testimony, or upon his trial therefor."

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"29-10.1-38. GRAND JUROR CANNOT BE QUESTIONED.--A grand juror cannot be questioned for anything he may say, or any vote he may give, in a session of the grand jury, relative to a matter legally pending before the jurors, except for a perjury of which he may have been guilty in making an accusation or giving testimony to his fellow jurors."

"29-10.1-39. WHEN INDICTMENT OUGHT TO BE FOUND.--The grand jurors shall find an indictment charging the defendant with the commission of an offense when all the evidence before them, taken together, is such as in their judgment would warrant a conviction by the trial."

"29-10.1-40. FINDING INDICTMENT--NUMBER OF JURORS REQUIRED.--An indictment cannot be found without the concurrence of at least six grand jurors. When so found, it must be endorsed 'a true bill' and the endorsement must be signed by the foreman of the grand jury. The names of the witnesses shall be endorsed thereon before the indictment is presented to the court."

"29-10.1-41. WHEN ACCUSED MUST BE DISMISSED.--If six grand jurors do not concur in finding an indictment against a defendant who has been held to answer, the original complaint and the certified record of the proceedings before the magistrate transmitted to them must be returned to the court with an endorsement thereon, signed by the foreman, to the effect that the charge is dismissed."

"29-10.1-42. DISMISSAL OF CHARGE--RESUBMISSION.--The dismissal of a charge by grand jurors does not prevent its being again submitted to a grand jury as often as the court may direct. Without such direction it cannot be again submitted."

"29-10.1-43. PRESENTMENT OF INDICTMENT TO COURT BY FOREMAN.--An indictment, when found by the grand jurors, must be presented by the foreman, in their presence, to the court, and must be filed with the clerk as a public record."

"29-10.1-44. PERSONS INDICTED, HOW ARRESTED.--When an indictment is found against a defendant who has not been previously arrested and who is not under bail, the proceedings prescribed in sections 29-12-02 to 29-12-09, inclusive, must be had against a defendant who fails to appear for arraignment."

"29-10.1-45. JURORS TO BE DISCHARGED UPON COMPLETION OF BUSINESS.--Upon the completion of the business before them or whenever the court shall be of opinion that the public interests will not be subserved by a further continuation of their sessions, the grand jurors must be discharged by the court."

"29-10.1-46. OPTION TO DEMAND PRELIMINARY HEARING--OR TRANSCRIPT.--A person against whom an indictment has been found, at his option, may make a written demand within five days to the district judge for a preliminary hearing, or in the alternative to be furnished a copy of the transcript of the testimony as it applies to him and the charges against him. Upon receipt of such written demand, the jury shall issue the appropriate order. Such written demand must be presented to the judge within five days after the indictment was served upon the defendant; otherwise, such option is waived and the defendant will not be entitled to either a preliminary hearing or a copy of the transcript."

REPEALS

To repeal Chapter 29-10 of the North Dakota Century Code

To repeal Section 29-09-08

To repeal Section 29-09-09

To repeal Section 29-09-10

To repeal Section 29-09-11

To repeal Subdivision g of Subsection 2 of Section 29-14-04

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"The attached is a proposed revision of the Grand Jury consisting of some of the basic provisions in Chapter 29-10, provisions of the California Grand Jury, and new ideas developed from other states.

"The repeal of Chapter 29-10 and some of the other related statutes and the creation of Chapter 29-10.1 was done deliberately to give the benefit of being a new provision.

"Another reason for the revision was to incorporate all of the material matters in one chapter.

"To assist in understanding and correlating the revised provisions with the existing laws, the prior statutes of the North Dakota Century Code appear in pencil notes an the left margin. [Omitted in these minutes.] For example, on page 1, Section 29-10.1-01, the proposed revised provision, has its origin in Section 29-09-08. Others are notated with the word 'new.' Some also have a notation referring to the California Penal Code. I would specifically like to call attention to Section 29-10.1-27 because it incorporates ideas to overcome some of the problems now existing, such as requiring all criminal proceedings to be through the Grand Jury while it is in session.

"We have provided two revisions of Section 29-10.1-33 with the thought that the committee might wish to elect which one should be adopted. My preference is the second one.

"Section 29-10.1-46 is a new provision in the correct sense of the word because I am not aware of any other state having a similar provision. This is a provision which should be given some independent thought before it is adopted, rejected, or amended.

"The provisions relating to presentment have been left out."

Mr. Sand said that he proposed the repeal of Subdivision g of Section 29-14-04 on the ground that it is almost unmanageable. He said it was probably put in for a good purpose, but that he questioned its workability, since it allows any person indicted to accuse a juror of bias or prejudice and thus undo everything that had been done. He mentioned there had been a supreme court case on that subdivision and that the court had been very critical of this provision.

The chairman referred to a recent argument before the supreme court about whether a person indicted has a right to be called and to testify without requesting an opportunity to do so, and he asked if Mr. Sand's proposed bill would make that issue clear.

Mr. Sand said the new number is 29-10.1-33. The first proposition under that number is in language that has been discussed, and the alternative is in some of the language which was in the actual provisions.

Judge Burdick said grand jury acts make a distinction between a grand jury bringing an original indictment, where defendant has no right to be heard unless they want him to be, and a grand jury bringing a true bill, where a charge is made by the state's attorney and left with the grand jury to investigate and requires the defendant to testify.

Mr. Sand agreed and said he was approaching it somewhat along that same line, but that the current statutes do not provide that a man would actually have to be arrested and charged before he was entitled to appear before a grand jury. He said he would prefer that spelled out in detail:

"Upon request of accused who has been held to answer to a judge."

Judge Erickstad said the problem with our statute now is a question of when an accused must make his request if he does not

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know he has been accused. If he is not in jail or charged, grand jury would have to be held open until indictment.

Mr. Sand asked if when a jury filed a true bill and the accused requested to appear, would the jury be required to again consider it? Judge Erickstad said he was wondering if that had been eliminated clarified and that the alternative in the proposed bill did not seem to give the accused any right.

Mr. Sand said the bill needed to use language that would clearly say (1) what is meant by "accused", and (2) under what conditions he becomes an accused and who must inform him and who must act. He said that a number of states, including South Dakota, don't have half the statutes we have on this and that theirs work better.

Mr. Glaser asked that if the accused is entitled to submit evidence to a grand jury, is he entitled to counsel to submit that evidence for him? Mr. Sand said no, and that New York goes the farthest, permitting counsel to be outside the courtroom, but that every person to be called as a witness has immunity unless he waives it in writing. They ask every witness to waive and they permit cross-examination on everything the witness says and he may not refuse cross-examination. Judge Burdick mentioned there is a difference between being called to testify and being permitted to testify.

Judge Muggli, referring to 29-10.1-46 of the draft, said he had previously suggested taking statute on state's attorney's inquiry and making it apply to all criminal action, so that a state's attorney could act as a one-man grand jury, and the accused could still have his preliminary hearing.

Judge Erickstad said that under present law witnesses may not decline to answer questions at a state's attorney's inquest. Judge Muggli said you can't force anyone to incriminate himself.

Judge Erickstad said there is a conflict to be worked out between the state's attorney's inquest statute and the bill proposed here. He pointed out that 29-10.1-31 provides that upon completion of the oath the witness shall be advised of his right to remain silent and may also be asked to sign a waiver of immunity, which is quite a change from the language of present state's attorney's inquest statute, in which no witness called may refuse to answer questions put to him. Judge Burdick said a waiver of immunity could be an arm twist when considered from one point of view.

Judge Muggli said a grand jury may be useful as an investigative body higher than state's attorney or sheriff, but that generally it was an unwieldy and cumbersome system. He said he thought that under a state's attorney's inquest the state's attorney could go out on his own and make investigations and get witnesses to come in, whereas under present law nobody wants to say anything to him, witnesses don't want to get involved.

Mr. Glaser noticed that the proposed draft is set up as though it would be repealing certain statutes and he wanted to know if it was going to be enacted in the form of rules. He was told no, that this was merely presented to the Committee for their ideas before it goes to the Legislature.

Judge Smith said he had some material on Iowa procedures (Chapter 754, Iowa Criminal Code), for reducing preliminary hearings. He read an excerpt from a letter he received from Donald J. Olson, dated October 22, 1970, as follows:

"It appears that a county attorney in Iowa has more flexibility than a state's attorney in North Dakota in choosing the method of prosecution. . . .(I)n Iowa, a preliminary information may be filed in Municipal Court if the County Attorney desires to have a preliminary hearing. If the County Attorney believes he has a strong

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case, he may proceed by way of a county attorney's information, thereby placing the case immediately before the district court for arraignment. . . . (A) county attorney in Iowa may initially file a preliminary information and subsequently dismiss the preliminary information prior to a preliminary hearing and file a county attorney's information. This procedure would be utilized when additional evidence strongly incriminates an accused."

During the discussion that followed, Mr. Sand read from the Proposed New York Criminal Procedure Law:

"(a) When a criminal charge against a person is being or is about to be or has been submitted to a grand jury, such person has a right to appear before such grand jury as a witness in his own behalf if, prior to the filing of any indictment or any direction to file a prosecutor's information in the matter, he serves upon the district attorney of the county a written notice making such request and stating an address to which communications may be sent. The district attorney is not obliged to inform such a person that such a grand jury proceeding against him is pending, in progress or about to occur unless such person is a defendant who has been arraigned in a local criminal court upon a currently undisposed of felony complaint charging an offense which is a subject of the prospective or pending grand jury proceeding...." Section 190.50, 1969 Bill, effective July 1, 1971 (West Pub.Co.).

Judge Burdick said that if a state's attorney approves a complaint, there is no necessity for further hearing before a grand jury, as the defendant is entitled to preliminary hearing then. Mr. Glaser said that a grand jury should be simply another means of making accusations, but the defendant should be entitled to a transcript. Judge Burdick added that this creates an opportunity to have the matter considered by a law-trained individual. As laymen, the grand jury may think there has been a crime committed, when a law-trained individual may not think so.

There were some questions on whether testimony should be recorded, and Judge Muggli pointed out that 29-10.1-22 of the proposed bill covered transcripts.

After further discussion, Judge Burdick moved that the subcommittee draft a recommended grand jury statute around the philosophy that a grand jury is supplementive only, an additional accusatory body, and that the draft implement the concept that a grand jury should not be permitted to call the accused, but may permit him to testify; that he has no right to testify; that no one is to be given any warning before a grand jury unless he is the accused and has been invited by the grand jury to testify; that in the event of his indictment by a grand jury the defendant would be entitled to a preliminary examination, but not to any exploration of the work of the grand jury, not to explore what they did or the way they did it.

Judge Smith seconded the motion and the discussion continued. Judge Muggli said it would change the concept of grand jury to give the right of hearing to an accused. He said the court's power springs from the very citizens who compose a grand jury, and he did not think it would be a good situation if a grand jury felt that prosecution was necessary and in a hearing the court said no. He added that that would be granting the accused more rights.

Mr. Sand said he objected to 29-10.1-46, Option to Demand Preliminary Hearing--or Transcript, in his bill and did not want any part of it.

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Judge Burdick decided he wanted to include in his motion that if a transcript was not made for any reason, the accused could have a preliminary hearing, and that 29-10.1-46 would have to be reworded to make the transcript required rather than an alternative. The accused would get a copy of the transcript but no preliminary; if a transcript were not available, it wouldn't make the indictment illegal, but would give him a right to a preliminary hearing.

The chairman recapitulated the present form of the motion as being to provide for general powers such as contained in Section 29-10-18; that accused not have right to appear before grand jury, but if indicted he should have right to transcript; if transcript is not available, he has absolute right to preliminary hearing before a district judge or county court with increased jurisdiction.

Judge Muggli mentioned that under federal laws the accused is not entitled to a transcript or a preliminary hearing.

Mr. Shaft said he had agreed with Judge Burdick's motion until it was changed to remove right of defendant to make a choice of grand jury transcript or preliminary hearing. He said he thought the defendant should be given that option.

Judge Murray said he would vote for the motion, but that he wanted to state that he favors the entire abolition of the grand jury system because it is a cumbersome adherence to a past structure that has no meaning in modern times. He favored a proceeding whereby the prosecuting attorney could secure evidence on his own initiative.

Mr. Glaser said he was inclined to favor broadening the state's attorney's power. There would be less need to use a grand jury, but it is desirable to have both. He said the state's attorney should have the right to subpoena people beforehand, advise them of their rights, including self-incrimination, and he would also have the right to give a witness immunity.

Judge Burdick, referring to the Uniform Reciprocal Enforcement Act, suggested that the accused have to raise the objection himself and needn't be told he has the right to remain silent. He can't refuse to testify, but if he should, he is granted immunity.

Judge Smith said his seconding the motion meant he endorsed it without qualification.

Judge Muggli said he thought the motion was a good, sound one, and that he wanted to make sure that it is understood that the grand jury has power and is not limited in any way. He said he thought having a reporter record a grand jury hearing would have a good effect on everybody present.

Judge Burdick summarized his motion as follows: Grand jury would be preserved. We would recommend legislation giving grand jury full power to investigate and indict upon any matters it so set to delve into. It would serve as an additional accusatory arm, in addition to filing information by state's attorney. Defendant would have no right to appear before grand jury at any time he may not know about it; however, grand jury would have right to invite him to attend as witness, and he could assert immunity from testifying if he thought his testimony might incriminate him. Five days later he could demand transcript of testimony, but if for some reason a transcript were not available, he would be entitled to a preliminary hearing. Judge Burdick said he would propose that the state's attorney be allowed to challenge individual jurors and the panel at the time they were sworn, and the defendant would not be able to challenge individual jurors. He could challenge the legality of the panel at the time the indictment is returned, but only for the reason that it has been illegally constituted, not for

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prejudice or preconceived ideas. It would have to be on a defect that applied to all the jurors, such as they weren't citizens or weren't residents of the county; whatever the reason, it would have to be a challenge to the entire panel. State's attorneys would have to raise objections before they were sworn. Judge Burdick added that refinements would have to be made on this.

During the ensuing discussion Judge Burdick said he would vote to have nothing in grand jury statute on testimony, because it is already covered. The discussion continued on whether the Fifth Amendment applied to grand jury witnesses who were subsequently indicted.

Mr. Sand called attention to 29-10.1-31, Oath to Witness--Advise of Constitutional Rights, and read the statute referred to in the last sentence of that section.

"31-01-09. Privilege against self-incrimination--Grant of immunity.--No person shall be compelled to be a witness against himself in a criminal action. Notwithstanding any provision of law to the contrary, in any criminal proceedings before a court or grand jury or state's attorney's inquiry, if a person refuses to answer a question or produce evidence of any kind on the ground that he may be incriminated thereby, and if the prosecuting attorney, in writing and with approval of the attorney general, requests the court to order that person to answer the question or produce the evidence, the court after notice to the witness and hearing may so order, and that person shall comply with the order. In the case of a state's attorney's inquiry such application shall be made to the district court. After complying, and if, but for this section, he would have been privileged to withhold the answer given or evidence produced by him that person shall not be prosecuted or subject to penalty or forfeiture for or on account of any transaction, matter, or thing concerning which, in accordance with the order, he gave answer or produced evidence. But he may nevertheless be prosecuted or subjected to penalty or forfeiture for any perjury, false swearing or contempt committed in answering, or failing to answer, or in producing or failing to produce, evidence in accordance with the order."

Mr. Sand said that the last sentence of the statute applied after the witness could no longer incriminate himself.

The chairman asked if there was a consensus of opinion that the proposed statute should not include any requirement that a witness be advised of his constitutional rights, and it should include that a witness not be asked to sign a waiver of immunity.

Mr. Glaser said he didn't want his silence to be construed as an endorsement.

Mr. Vogel read from 38 C.J.S. Grand Juries § 1, page 983, and said that this is what he endorses.

"It is judicially noted that some states have practically abolished the grand jury, as by allowing, through constitutional provisions, all prosecutions to be begun and carried out without the intervention of a grand jury, but wisely providing that a grand jury may be called where prosecuting officers will not act. The view is asserted that, generally speaking, under modern conditions, a grand jury is an antiquated, superfluous, and well-nigh useless piece of legal machinery, there being seldom any reason for invoking the cumbersome proceeding before it where prosecuting officers are willing to act."

Mr. Vogel's vote was the only one opposed to the motion. Judge Burdick said he would be glad to review Mr. Sand's draft to see if it can be kept consistent with the motion.

Mr. Sand asked that any corrections be given to him in a form he could use for the final bill.

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The committee adjourned at 5:20 p.m. and reconvened at 9:10 a.m. on Friday, December 11.

The chairman called on Judge Burdick for his draft of Rule 31.

Judge Burdick said that that rule had already been adopted, but that there were things to be added. Federal Jury Practice and Instructions, Devitt § Blackmar (West Publishing Co.), Vol. 2, § 17.15, Chapter 60, Treason, should be added to the citation. In answer to Judge Muggli's question, Judge Burdick said the State treason statutes were Sections 12-03-02 and 12-07-02.

Judge Burdick moved to reconsider Rule 31, Verdict, and to add subdivision (e) as follows:

"(e) Special Verdicts

"(1) Whenever the defendant interposes the defense of insanity and evidence thereof is given at the trial, the jury, if it finds him not guilty on that ground, shall declare that fact in their verdict.

"(2) Whenever the defendant interposes the defense that he has been formerly convicted or acquitted of the same offense or an offense necessarily included therein, or once in jeopardy, and evidence thereof is given at the trial, the jury, if it so finds, shall declare that fact in their verdict.

"(3) Whenever the defendant is charged with treason or conspiracy to commit treason and more than one overt act is charged, the jury, before returning a verdict of guilty, must return a special verdict with respect to each overt act charged."

Judge Muggli seconded the motion. Judge Burdick then read (e)(2) of the Alaska rules, which is the same as (e)(1) above.

In regard to the matter of former acquittal, Mr. Glaser read from N.D.C.C. as follows:

"29-14-19. Plea to be oral--Form of plea.--Every plea must be oral, and must be entered upon the minutes of the court, and in substantially the following form:

"1. If the defendant pleads guilty: 'The defendant pleads that he is guilty of the offense charged in this information (or indictment)';

"2. If he pleads not guilty: 'The defendant pleads that he is not guilty of the offense charged in this information (or indictment)';

"3. If he pleads a former conviction or acquittal: 'The defendant pleads that he has already been convicted (or acquitted, as the case may be), of the offense charged in this information (or indictment), by the judgment of the court of ____________ (naming it), rendered at ___________ (naming the place), on the ___ day of ________, 19__';

"4. If he pleads once in jeopardy: 'The defendant pleads that he has been once in jeopardy for the offense charged in this information (or indictment), (specifying the time, place, and court).'"

Mr. Glaser said that the point he wanted to make was that you have to specify at the time of the plea where and when the acquittal occurred. It gives the prosecutor an opportunity to check it out before the trial.

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Mr. Shaft read from Barron § Holtzoff as follows:

"§ 1981. Pleadings and Motions.

"Under Rule 12(a) the only pleadings in criminal proceedings are (1) the indictment or (2) the information, and (3) pleas of not guilty, (4) guilty, or (5) nolo contendere.

"This rule expressly abolishes all other pleas, and demurrers and motions to quash. Consequently special pleas to the jurisdiction, pleas in abatement, demurrers, special pleas in bar, and motion quash are no longer permitted in federal criminal procedure. All objections or defenses raised before trial must be made by a simple motion to dismiss or motion to grant appropriate relief as provided in these rules.

"No one, except possibly as a matter of nostalgia, will mourn the discarding of the store of fruitless learning on the complicated question of what matters must be raised by pleas in abatement, what points are suitable for a demurrer, when a motion to quash is the proper remedy and when a special plea in bar is appropriate or needed.

"The selection of a wrong plea will no longer be a hazard since there is now but the one mode of raising all objections and defenses. Even if counsel unaware of the procedural changes, ignorantly interposes an obsolete plea or motion, it may be considered as a motion to dismiss.

"Any defense or objection which is capable of determination without the trial of the general issue may be raised by motion before trial.

"Certain defenses may be raised by motion or at the option of the defendant may be asserted at the trial. Thus lack of jurisdiction may be raised at any stage of the proceeding and must be noticed by the court even if not raised by motion or objection. In like manner objection that the indictment or information fails to charge an offense may be made at any stage of the proceeding. Other objections and defenses which are not waived by failure to assert them by motion before trial are former jeopardy, former acquittal, former conviction, statute of limitations or immunity.

"Objections which are waived unless interposed by motion by trial are those which go to the institution of the prosecution or technical defects in the indictment or information. These include irregularities in selecting or impaneling the grand jury, disqualification of individual grand jurors, presence of unauthorized persons in the grand jury room, misjoinder of offenses, and similar defects. All such objections must be included in one motion which must be made before trial or they will be waived. The court, however, has discretion to relieve the defendant of this waiver and permit the motion to be made at a later, reasonable time. Objections to jurisdiction of the person are waived unless interposed before trial. In this connection it should be noted, however, that illegality in the manner in which the defendant is brought before the court, such as unlawful arrest, does not affect the jurisdiction over his person. The legality of search and seizure of evidence may and must ordinarily be questioned by motion before trial.

"The provision that these defenses and objection are waived if not raised by motion substantially continues pre-existing law, as they were waived formerly unless raised before trial by plea in abatement, demurrer, motion to quash, and similar methods.

"The description of the defendant by numerous aliases is no ground for dismissal. The remedy is to strike surplusage under Rule 7(d)."

[1967 pocket part: "When the 1966 amendments were finally adopted, Rule 12.1 was not among them, and so there is no requirement on defendant to give notice either of an alibi or of a defense of insanity."]

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Then Mr. Glaser read from the North Dakota Century Code:

"29-14-28. Defendant in criminal case to give notice of alibi.--Whenever a defendant in a criminal case in a court of record in this state intends to rely upon an alibi as a defense, he shall give to the prosecuting state's attorney, not later than five days prior to the trial of such cause, a notice in writing setting forth with particularity the place or places where he claims to have been when the crime was committed, together with the names and addresses of the witnesses to his alibi, if known to the defendant. Names of additional witnesses may be filed with the court and served on the prosecuting state's attorney subsequent to the time of the delivery of such notice only upon such conditions as the court may determine. In default of the notice required by this section, evidence of the alibi shall not be received by the court, unless otherwise ordered for good cause shown."

Mr. Glaser cited State v. Barnes, 29 N.D. 164, 150 N.W. 557 (1915), in which a plea of prior jeopardy was waived because it was not interposed prior to the verdict. Judge Burdick said there may be more categories than those being added now. Reference was made to Ref. Comm. Act. 38 A.L.I. Code Commentaries 1000-1002, Am. Law Inst. Model Crim. Code.

Judge Burdick moved to adopt Rule 31, adding (4): "Whenever the defendant interposes any other defense which cannot be reflected in a general verdict, and evidence thereof is given at the trial, the jury, if it so finds, shall declare that fact in their verdict."

Mr. Sand seconded the motion, and it carried. It was decided that the context justified using both the words "it" and "their" to refer to a jury. The chairman asked that Judge Burdick and the original author, Judge Smith, work on the form and the statutes be superseded.

"(e) Special Verdicts. [Adopted 12-11-70.]

"(4) Whenever the defendant interposes any other defense which cannot be reflected in a general verdict, and evidence thereof is given at the trial, the jury, if it so finds, shall declare that fact in their verdict."

Mr. Glaser moved adoption of his proposed Rule 52, Harmless Error and Plain Error, patterned after Federal Rule 52:

"(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.

"(b) Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."

Mr. Glaser pointed out that the Alaska, Colorado and Delaware rules were identical to the Federal. For comparison he read Section 29-28, N.D.C.C.: "Technical errors to be disregarded on appeal.--After

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hearing an appeal, the supreme court must give judgment without regard to technical errors or defects or exceptions which do not affect the substantial rights of the parties."

Judge Burdick said the Commissioners' draft is almost word-for-word the same except they used "obvious" error instead of "plain".

Mr. Glaser said that he had represented the State in an appeal of a case in which the trial court, following the civil statute, permitted the jury to view the premises in question without the presence of the judge; the criminal statute, which would have been applicable, required the presence of the judge. The supreme court determined that to be prejudicial error. State v. Rohrich, 135 N.W.2d 175 (N.D. 1965).

Judge Burdick read pertinent parts from Chapman v. California, 386 U.S. 18 at 22; 87 S.Ct. 824, 17 L.Ed.2d 705. During the discussion Judge Burdick said he thought Rule 52 seemed to be a provision for the defendant, from which the State received no benefit.

Judge Burdick made a motion to amend the language of Rule 52(a) to, "Any error, defect, irregularity or variance which the prosecution has shown beyond reasonable doubt does not affect substantial rights of the defendant shall be disregarded." Judge Murray seconded the motion.

Mr. Sand made a substitute motion to delete Rule 52 altogether and to retain the numeral 52 without a rule. Judge Muggli seconded the motion and, after discussion, it was defeated.

Judge Smith then read from Chapman as follows:

"There is little, if any, difference between our statement in Fahy v. Connecticut about 'whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction' and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. We, therefore, do no more than adhere to the meaning of our Fahy Case when we hold, as we now do, that a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. While appellate courts do not ordinarily have the original task of applying such a test, it is a familiar standard to all courts, and we believe its adoption will provide a more workable standard, although achieving the same result as that aimed at in our Fahy case." [Emphasis added.] 17 L.Ed.2d 710, 711.

Mr. Glaser read from the State v. Rohrich case mentioned above:

"Counsel for defendant specified that the absence of defendant from these conferences was error and in his brief he states: 'The only question raised by this specification of error is whether or not the voluntary waiving by both counsel and defendants cures the error.' If the absence of the defendant from these conferences constituted error, a question which we do not decide, the error was clearly waived. Constitutional and statutory provisions which require the presence of an accused at a trial for a felony are for the benefit of the accused and may be waived. . . .

". . . His absence was error and it will be deemed prejudicial. The absence of the trial judge was not assigned as error in the specifications of error upon this appeal and, for that reason, it is urged that the argument that such absence was error may not be considered on this appeal. This contention would be valid if this were a civil case. However, neither the statutes nor the rules applicable to appeals in criminal cases contain any reference to specifications of error.

"An assignment of error in the appellant's brief is sufficient in criminal cases.... State v. Rohrich, 135 N.W.2d 175, 180 (N.D. 1965).

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Judge Muggli read Civil Rule 61, Harmless Error:

"No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties."

During the discussion that followed, Judge Burdick amended his motion to read: "(a) Any error, defect, irregularity or variance which beyond a reasonable doubt did not contribute to the verdict obtained shall be disregarded." After further discussion a vote was taken and the motion failed.

Judge Burdick moved to change "plain" to "obvious" error. After agreeing that harmless error is that which does not affect substantial rights, and plain error is that which does, the committee voted to substitute the word "obvious" for "plain". Judge Muggli asked about the possibility of a small plain error that was not obvious. His was the only opposing vote.

The committee then voted on Mr. Glaser's motion to adopt Rule 52, with the amendment. Judge Burdick was the only one voting in opposition.

"Rule 52. Harmless Error and Obvious Error.

"(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.

"(b) obvious Error. Obvious errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."

Mr. Sand read his proposed Rule 49 and made a motion to adopt it, omitting service by publication. Mr. Shaft seconded the motion.

"Rule 49. Service and Filing of Papers.

"(a) Service: When Required. Written motions other than those which are heard ex parte, written notices, designations of record on appeal and similar papers shall be served upon each of the parties.

"(b) Service: How Made. Whenever under these rules or by an order of the court service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made in the manner provided in civil actions, except service by publication shall not apply.

"(c) Notice of Orders. immediately upon the entry of an order made on a written motion subsequent to arraignment the clerk shall mail to each party a notice thereof and shall make a note in the docket of the mailing. Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted by Rule 37(a)(2).

"(d) Filing. Papers required to be served shall be filed with the clerk of court. Papers shall be filed in the manner provided in civil actions.

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"(e) Proof of Service. Proof of service of all papers required by law or these rules to be served shall be filed in the clerk's office promptly and in any event before action is to be taken therein by the court or the parties. The proof shall be the same as in civil actions."

Mr. Sand said that Rule 49(e) was taken from the Alaska rule, although it was not quite the same. Judge Erickstad noted that 49(c) referred to Rule 37(a)(2), which had not been finished. Mr. Sand made a motion to adopt the proposed Rule 49, with the reference to "Rule 37(a)(2)" changed to "Rule 37(b)". The motion was seconded by Mr. Shaft. During the discussion Judge Burdick moved to amend 49(e) to add "unless excused by the court". Mr. Sand seconded the motion and the amendment was adopted.

Judge Burdick then moved to amend 49(c) to read in part:

"Notice of Orders. Immediately upon the entry of an order made upon a written motion subsequent to arraignment the clerk shall mail to or otherwise serve on each party affected thereby a notice thereof and (((shall make a note in the docket of the mailing))) note the service in the docket." Mr. Shaft seconded the motion and the amendment was adopted.

Judge Muggli questioned the last line of 49(b), "Service upon the attorney or upon a party shall be made in the manner provided in civil actions." He then read Section 29-28-10, N.D.C.C., which provides for service by publication in civil actions. Judge Burdick pointed out that Civil Rule 5 does not provide for service by publication.

Mr. Sand moved to amend 49(b) "provided in civil actions except service by publication shall not apply" to "provided in Rule 5(b)". Judge Burdick seconded the motion and it carried.

Judge Burdick then moved adoption of Rule 49 as amended. Judge Murray seconded the motion and it carried. Rule 49 was adopted as follows:

"Rule 49. Service and Filing of Papers.

"(a) Service: When Required. Written motions other than those which are heard ex parte, written notices, designations of record on appeal and similar papers shall be served upon each of the parties.

"(c) Notice of Orders. Immediately upon the entry of an order on a written motion subsequent to arraignment the clerk shall mail to or otherwise serve on each party affected thereby a notice thereof and note the service in the docket. Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted by Rule 37(b).

"(d) Filing. Papers required to be served shall be filed with the clerk of court. Papers shall be filed in the manner provided in civil actions.

"(e) Proof of Service. Proof of service of all papers required by law or these rules to be served shall be filed in the clerk's office

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promptly and in any event before action is to be taken therein by the court or the parties, unless excused by the court. The proof shall be the same as in civil actions."

(Supersedes Section 29-28-10, N.D.C.C.]

Judge Muggli read his proposed draft of Rule 53:

"Rule 53. Regulation of conduct in the courtroom. No camera, sound recorder, or other device, except those operated for official purposes, by or under the direction of the Court, shall be used to photograph, record, or broadcast proceedings of the Court, nor shall such devices be brought in or allowed to remain in the Courtroom while proceedings are in progress."

["Comment: I have used Rule VII (d) of the Rules of Court for District Courts adopted by our Supreme Court as of August 1, 1963. I believe this is more inclusive than Federal Rule 53, as Federal Rule 53 would seem to permit TV coverage in a courtroom. Our US Supreme Court (381 US 532) in the Billie Sol Estes case decided that the use of TV in the trial of that case was in violation of due process."]

Judge Muggli moved the adoption of Rule 53 and Judge Murray seconded the motion. It was adopted as submitted.

Judge Burdick then read from Minimum Standards Relating to Trial by Jury, Part IV. Special Procedures During Jury Trial, page 91:

"4.1 Custody and restraint of defendants and witnesses.

"(a) During trial the defendant should be seated where he can effectively consult with his counsel and can see and hear the proceedings.

"(b) An incarcerated defendant or witness should not be required to appear in court in the distinctive attire of a prisoner or convict.

"(c) Defendants and witnesses should not be subjected to physical restraint while in court unless the trial judge has found such restraint reasonably necessary to maintain order. If the trial judge orders such restraint, he should enter into the record of the case the reasons therefor. Whenever physical restraint of a defendant or witness occurs in the presence of jurors trying the case, the judge should instruct those jurors that such restraint is not to be considered in assessing the proof and determining guilt."

Judge Burdick said he did not want to act on it immediately, as there may be later drafts of it.

The chairman called on Judge Smith for his draft of Rule 54, Application and Exception.

"Rule 54. Application and Exception.

"(a) Courts and Commissioners.

"(1) Courts. These rules apply to all criminal proceedings in the district courts of this state. They also apply to all criminal proceedings in the county courts having increased jurisdiction, in the county justice courts and the municipal courts of this state, except in those instances where such rules shall conflict with a particular statutory rule of procedure for such court or courts which has not been superseded by its inclusion in the list of superseded statutes annexed to these rules, or which has not been repealed by the legislative assembly of this state.

"(2) Commissioners. These rules shall not apply to proceedings of a criminal nature before juvenile commissioners or before judges acting as judges of juvenile courts.

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(b) Proceedings.

"(1)Regulatory proceedings in municipalities or other political subdivisions. These rules shall not apply to any proceeding to collect a penalty for violation of an ordinance of any municipality or other political subdivision of this state, unless such ordinance shall authorize a sentence which could include confinement of a defendant upon his conviction for violation of such ordinance.

"(2) Habeas Corpus. These rules shall not apply to proceedings on any application for a writ of habeas corpus had in the courts of this state pursuant to Ch. 32-22, N.D. Cent. Code or Section 25-03-21, N.D. Cent. Code, nor to such other habeas corpus proceedings as may be authorized by the laws and decisions of the Supreme Courts of this state and of the Supreme Court of The United States as may be controlling upon the courts of this state.

"(3) Peace Bonds. These rules do not alter the power of magistrates, authorized by law to act within the county, to take and hold security for the prevention of a public offense, or of a district judge dispose of such peace bond as provided by laws of this state.

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

"(5) Other proceedings. These rules are not applicable to extradition and rendition of fugitives; forfeiture of property for violation of a statute of this state; or the collection of fines and penalties. They do not apply to proceedings under Chapter 27-16, N.D. Cent. Code--Juvenile Court--so far as they are inconsistent with that chapter. They do not apply to an action to determine paternity of a child born out of wedlock as provided by Chapter 32-36, N.D. Cent. Code."

Judge Smith made a motion to adopt Rule 54, and Mr. Shaft seconded the motion.

Regarding Tuberculosis Board proceedings, Judge Smith read Section 25-05-10.3, N.D.C.C.:

"Declaration of legislative intent.--It is hereby declared that it is the intent of the legislative assembly, as follows:

"It is the policy of the state of North Dakota to treat persons having tuberculosis in a communicable and contagious stage as dangerous to the health and welfare of the citizens of the state. It is also the policy of the state to declare that all cases of tuberculosis in a communicable or contagious stage should be isolated in a state institution or licensed hospital, or at home if such home isolation meets the approval of the local health officer. To this end, it is declared that isolation provisions to achieve isolation of such communicable or contagious tuberculous persons should be accomplished to the fullest extent regardless of such person's ability to pay. It is further declared that such persons with communicable or contagious tuberculosis shall be given full opportunity to enter isolation voluntarily. In order to prevent effectively the spread of this disease it is necessary that the state:

"1. Further the discovery, care, supervision and treatment of persons having tuberculosis in a communicable or contagious stage.

"2. Encourage the use of all available public and private facilities to that end.

"3. Regard this tuberculosis program as one of public health and one to be dealt with according to public health requirements rather than those of indigency."

After a discussion, Judge Smith made a motion to delete Rule 54(a)(2) Commissioners and the numeral (1) of Courts, also removing "and Commissioners" from (a). Mr. Shaft seconded the motion and it carried.

Judge Burdick read Rule 1, Scope, to the meeting and asked why 54(a) was necessary.

"Rule 1. Scope. [adopted 1-26-68]

"These rules govern the practice and procedure in all criminal actions and proceedings in the district court, and, so far as applicable, in all other courts, and govern, except as otherwise provided by statute, prosecutions for the violation of municipal ordinances."

Judge Burdick pointed out that the Federal Rule 1, Scope, say "except as provided in Rule 54." The chairman suggested that whoever was the author of Rule 1 should consider a cross-reference when the rules were gone over the second time.

Judge Burdick made a motion to amend Rule 54(a) to read:

"These rules (((apply to))) govern the practice and procedure in all criminal actions and proceedings in the district courts, (((of this state. They also apply to all criminal proceedings in the))) county courts having increased jurisdiction, (((in))) the county justice courts and the municipal courts, (((of this state,))) except as otherwise provided by statute or by rule of the supreme court. (((in those instances where such rules shall conflict with a particular statutory rule of procedure for such court or courts which has not been superseded by its inclusion in the list of superseded statutes annexed to these rules, or which has not been repealed by the legislative assembly of this state.)))

The motion was seconded by Judge Smith and, after some discussion of legislative statutes superseding supreme court rules and supreme court rules or decisions superseding statutes, the motion carried.

Judge Smith read Section 27-02-09, N.D.C.C.

"Statutes regulating procedure effective as rules of supreme court.--All statutes relating to pleadings, practice, and procedure in civil or criminal actions, remedies, or proceedings, enacted by the legislative assembly, shall have force and effect only as rule of court and shall remain in effect unless and until amended or otherwise altered by rules promulgated by the supreme court."

Then he read section 86 of the Constitution of the State of North Dakota:

"The supreme court, except as otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be co-extensive with the state and shall have a general superintending control over all inferior courts under such regulations and limitations as may be prescribed by law." (Emphasis added.]

Mr. Sand read Rule 81 of the North Dakota Rules of Civil Procedure:

"(a) Special statutory proceedings. The statutory proceedings listed in Table A are excepted from these rules in so far as they are inconsistent or in conflict with the procedure and practice provided by these rules.

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"(b) Appeals to district courts. These rules do not supersede the provisions of statutes relating to appeals to or review by the district courts, but shall govern procedure and practice relating thereto in so far as these rules are not inconsistent with such statutes.

"(c) Rules incorporated into statutes. Where any statute heretofore or hereafter enacted, whether or not listed in Table A, provides that any act in a civil proceeding shall be done in the manner provided by law or as in a civil action, such act shall be done in accordance with these rules." [TABLE A, Special Statutory Proceedings Under Rule 81, omitted here.]

Judge Smith offered to redraft Table A for the next meeting. It was agreed to assume the motion and its second were withdrawn, with the understanding that this rule is perhaps the place for reference to tables.

The chairman then called on Judge Murray to read his draft of Rule 55, Records:

"The clerk of the district court shall keep such records in criminal proceedings as the law may prescribe."

Judge Murray made a motion to adopt Rule 55, and Mr. Sand seconded the motion. Judge Murray also read his comments, which follow:

"Here I used the recommended form of the corresponding rule drafted by the Commissioners, which is their Rule 59.

"The existing Federal Rule 55 is too restrictive and too specific in mentioning the appropriate Federal agencies and prescribes the name of the record to be kept. The statute cited above [Section 11-17-01(11), N.D.C.C.] already names this record, and I believe would be too disruptive to start calling it something else; realizing, however, that attorneys and officials do use the word 'docket', I am open to suggestion if the Committee feels we should change the word 'register' to the word 'docket' by specifying that in the rule, and this is superseding the statute cited."

Judge Burdick read from Uniform Rules of Criminal Procedure (drafted by the National Conference of Commissioners on Uniform State Laws):

"Rule 59. Records. Every Court of record having criminal jurisdiction shall keep such records in criminal proceedings as are required by law."

Judge Smith read Subsections 11, 12 and 13 of Section 11-17-01, duties of the clerk of court:

"ll. Keep a properly indexed book labeled 'Register of Criminal Actions' in which shall be entered the title and number of each criminal action with a memorandum of each paper filed or order or proceeding had therein together with the date thereof and the name of each witness called in each action, the number of days he is in attendance, and his legal fees;

"12. Keep a book labeled 'Book of Jurors' Certificates,' in which shall be contained the blank certificates and stubs to be filled as provided by the laws of this state;

"13. Keep a book labeled 'Witness Book,' in which shall be contained the blank certificates and stubs to be filled as provided in this code;"

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Judge Murray then read Judge Burdick's draft of Rule 55 and said he thought it was better.

"Rule 55. Records.

"The clerk of each court governed by these rules shall keep such records in criminal proceedings as are required by law or by rule or order of the supreme court."

Judge Murray withdrew his motion to adopt Rule 55, and Judge Burdick made a motion to adopt his draft of Rule 55. Judge Murray seconded the motion and it carried.

There was a short discussion of funds to be used for review and annotation of the new rules and preparation for publication. A committee was appointed, with Mr. Sand as chairman, Judge Murray and Judge Smith.

The chairman called on Judge Murray for his proposed draft of Rule 56 and Judge Murray read it to the committee:

"Rule 56. Courts and Clerks.

"The district court shall be deemed always open for the purpose of filing any proper paper, of issuing and returning process and of making motions and orders. The clerk's office with the clerk or a deputy in attendance shall be open during business hours on all days except Saturdays, Sundays, and legal holidays, but a court may provide otherwise by local rule or order."

Judge Murray then read his comments, adding that this had been drafted two years previously.

"The corresponding rule, being Rule 60 of the Uniform Rules of the Commissioners, excepts only Sundays and legal holidays. The Federal Rule and my proposed rule take cognizance of the fact that our courthouses and our county officials do not function on Saturdays.

"Neither the previous statute nor any rule conflicts with section 22 of the State Constitution, the appropriate part of which says: 'All courts shall be open***'."

Judge Murray said he would now delete the words "The district court" and substitute "The courts governed by these rules". He made a motion to adopt Rule 56 with this change, and Judge Muggli seconded the motion. During the discussion, the rule was further amended to delete the word "Sunday", because it is a regular holiday, and change "but a court may provide otherwise by local rule or order" to "unless otherwise prescribed by the court."

Judge Burdick moved that Rule 56 be adopted as amended. Judge Murray seconded the motion and it carried. Rule 56 as adopted reads:

"Rule 56. Courts and Clerks.

"The courts governed by these rules shall be deemed always open for the purpose of filing any proper paper, of issuing and returning process and of making motions and orders. The clerk's office with the clerk or a deputy in attendance shall be open during business hours on all days except Saturdays and legal holidays, unless otherwise prescribed by the court."

In regard to the question of double jeopardy, Judge Smith said that trial in municipal court bars trial in state court, and he gave the following citation: 7 Criminal Law Reporter 3017; Waller v. Florida, 397 U.S. ___,90 S.Ct. 1184, 25 L.Ed.2d 435 (1970).

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The chairman assigned the last four rules to Judge Burdick.

The chairman asked if there were any rules left incomplete, and Judge Burdick made a motion to reconsider the adoption of Rule 11. Judge Murray seconded the motion.

Judge Burdick said his position is that Rule 11(b)(1)(C) should be drafted so that plea agreement opportunity is extended to defendants similarly situated, including those who have already pleaded guilty, so long as disposition upon the plea has not been made. He said he felt that the rule as presently drafted would require the court to vacate judgments and dispositions already made with respect to defendants similarly situated, without any limit as to time. He also said he wanted to add "f the evidence adduced and information in the pre-sentence report is consistent with the representations made to him."

After a discussion, Judge Burdick said he would leave his motion open until the next meeting.

The committee adjourned until March 18.

Respectfully submitted,

Lorna L. Bender, Secretary

Joint Procedure Committee Meeting

North Dakota Supreme Court

District Courts

Municipal Courts

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