Joint Procedure Committee Meeting

Scheduled on Wednesday, December 11, 1968 @ 9:00 AM

MINUTES OF MEETING

Joint Committee of the Judicial Council and the State Bar Association for the Adoption of Rules of Criminal Procedure

December 11, 1968

The Joint Committee of the Judicial Council and the State Bar Association for the Adoption of Rules of Criminal Procedure met at 9:28 Wednesday, Dec. 11, 1968, in the hearing room of the Supreme Court.

Members present were:
Supreme Court Judge Ralph Erickstad, Chairman;
Retired Supreme Court Judge James Morris;
Former Supreme Court Judge William S. Murray;
District Judge Eugene A. Burdick;
District Judge Roy A. Ilvedson;
District Judge Norbert J. Muggli;
County Judge Kirk Smith;
Mr. John Shaft;
Mr. Robert L. Vogel.

Members absent were:
First Assistant Attorney General Paul M. Sand;
Mr. Gerald G. Glaser;
Mr. John A. Graham;
Mr. Roger M. Persinger.

Also present were:
Mr. David T. Peterson, law clerk;
Mrs. Rebecca Quanrud, secretary.

Judge Ilvedson moved that the minutes of the previous meeting be approved as printed, with the following correction: on page 4, paragraph 2, lines 8 and 9, delete the following language: "and that it is necessary to take his deposition in order to prevent a failure of justice."

Judge Murray seconded the motion. The motion carried.

The chairman called on Judge Ilvedson to present his proposed amendment to rule 7(c) as adopted July 25, 1968, the amendment being necessitated by the failure of Senate Concurrent Resolution "UU" in the primary election. The resolution would have abrogated the constitutional provision (§ 97) which sets out required wording of prosecutions.

Rule 7(c) as adopted reads:

Rule 7. The Indictment and the Information.

(c) Nature and Contents. The indictment or the information shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall be signed by the prosecuting attorney. It need not contain a formal commencement, a formal conclusion, or any other matter not necessary to such statement. Allegations made in

one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specific means. The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation, or other provision of law which the defendant is alleged therein to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

Judge Ilvedson moved that the action by which the committee had adopted rule 7(c) be reconsidered and that the rule be amended to read as follows:

Rule 7. The Indictment and the Information.

(c) Nature and Contents. The indictment or the information shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall be signed by the prosecuting attorney. All prosecutions shall be carried on in the name and by the authority of the State of North Dakota and shall conclude "against the peace and dignity of the State of North Dakota." Except as required by this rule,

-2-

the indictment or information need not contain a formal commencement, a formal conclusion, or any other matter not necessary to such statement. Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specific means. The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation, or other provision of law which the defendant is alleged therein to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

Judge Smith seconded the motion. The motion carried.

Judge Ilvedson read the discussion of rule 15(a), Depositions--When and How Taken, from the minutes of Sep. 26-27, 1968, and his discussion submitted with his draft of the rule, which reads:

Rule 15. Depositions.

(a) When and How Taken. If it appears that a prospective witness may be unable to attend or prevented from attending a trial or hearing, that his testimony is material, and that it is necessary to take his deposition in order to prevent a failure of justice, the court at any time after the filing of an indictment or information may upon motion of a defendant or

the prosecutor and notice to the parties order that his testimony be taken by deposition and that any designated books, papers, documents, or tangible objects, not privileged, be produced at the same time and place. If a witness is committed for failure to give bail to appear to testify at a trial or hearing, the court on written motion of the witness, or on

its own motion, and upon notice to the parties, may direct that his deposition be taken. After the deposition has been subscribed the court may discharge the witness.

The chairman asked Judge Ilvedson if he wished to speak on his motion of Sep. 26, which was to adopt the draft with the following amendment: Delete the words or the prosecutor.

Judge Burdick said that he was in favor of retaining the words or the prosecutor. Mr. Vogel said he had no objection, providing the usual witness fees applied. The chairman called on Judge Morris for his opinion; Judge Morris said that he believes it should be a two-way street.

Judge Burdick moved that the draft be adopted with the first sentence amended to read as follows:

If it appears (1) that a prospective witness may be unable to attend or prevented from attending a trial or hearing and that his testimony is material; or (2) that it is necessary to take his deposition in order to prevent a failure of justice, the court at any time after the filing of an indictment or information may upon motion of a defendant or the prosecutor and notice to the parties order that his testimony be taken by deposition and that any designated books, papers, documents, or tangible objects, not privileged, be produced at the same time and place.

Judge Smith asked if it would be constitutional to send a lawyer rather than the defendant himself to confront the person giving the deposition.

-3-

Judge Ilvedson withdrew his motion. Judge Morris, who had seconded it, said that this was agreeable to him.

The chairman called on Mr. Vogel to discuss his motion of Sep. 26, which was to adopt Judge Ilvedson's draft of rule 15(a) with the following amendments: Delete the words If it appears that a prospective witness may be unable to attend or prevented from attending a trial or hearing, that his testimony is material and substituting in lieu thereof the words If it appears that the testimony of a prospective witness is material and delete the words or the prosecutor.

Mr. Vogel withdrew his motion and seconded Judge Burdick's motion.

Judge Murray read from State ex rel. Drew v. Shaughnessy, 249 N.W. 522, 90 A.L.R. 372 (Wis. 1933) and commented that this type of statute has been held to be constitutional.

Judge Smith questioned whether the rule is too broad. Discussion followed.

Judge Burdick asked what about limiting the deposition for use at the trial. He commented that the California courts have developed the use of discovery depositions extensively.

Judge Murray read from the Comment on Rule 27, Depositions, of the draft of the Uniform Rules of Criminal Procedure (p. 28) and from West v. Louisiana, 194 U.S. 258, 24 Sup. Ct. 650, 48 L. Ed. 965. He said that the Comment mentions that depositions by the prosecution were proposed for the federal rules but were eliminated.

The question being on Judge Burdick's motion, the motion failed, Judge Murray, Judge Burdick, Mr. Vogel, and Mr. Shaft voting aye, and Judge Morris, Judge Ilvedson, Judge Smith, Judge Muggli, and the chairman voting nay.

Judge Muggli said he would like to know how it is working out in other states. The chairman appointed Judge Ilvedson to investigate California's experience by writing to Judge Traynor.

Judge Ilvedson moved that his draft of rule 15(a) be adopted. Smith seconded the motion.

Mr. Shaft moved that the words indictment or information be changed to indictment, information, or complaint. Judge Smith seconded the motion.

Mr. Vogel commented that he believed the federal rule omitted complaint by design.

Judge Muggli said he was opposed to including complaint.

Mr. Vogel said that in felony cases it wouldn't hurt to wait for an indictment or information.

Judge Burdick said he was against including complaint.

The question being on Mr. Shaft's motion, the motion failed.

The chair noted that the question now before the committee was the motion to adopt rule 15(a) as submitted.

Judge Burdick remarked to Judge Morris that he and Judge Ilvedson would like to investigate further before voting. The chairman stated that he preferred to stay as up-to-date as possible on the voting and that the committee could always reconsider its action in adopting a particular section.

-4-

Further discussion of rule 15(a) followed.

The question being on the adoption of rule 15(a) as submitted, the motion carried, Judge Morris, Judge Ilvedson, Judge Muggli, Judge Smith, and the chairman voting aye, Judge Murray, Judge Burdick, Mr. Shaft, and Mr. Vogel voting nay. (For text see p. 3 of these minutes.]

Judge Muggli suggested that Judge Burdick investigate the use of depositions in other states.

After discussion Judge Burdick said he thought he could obtain copies of Judge Traynor's article, Ground Lost and Found in Criminal Discovery, 39 N.Y.U. L. Rev. 228 (Apr. 1964) for members of the committee.

Judge Murray read his draft of rule 16 and Federal Rule 16. He said he thinks the federal rule is too long and too detailed, that a number of things contained in the federal rule refer too specifically to federal procedures, and that he eliminated discovery by the prosecution because he is opposed to it, although the committee may feel differently. He said that he used instead the draft of the equivalent Uniform Rule because he thinks it is simple and well drawn. His draft of rule 16 follows:

Rule 16. Discovery and Inspection.

Upon motion of a defendant, at any time after the filing of the indictment or information, and upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable, the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph designated books, papers, documents, or tangible objects, obtained from or belonging to the defendant or obtained from others, including written statements or confessions made by the defendant or a co-defendant (and written statements of witnesses). The order shall specify the time, place, and manner of making the inspection and of taking copies or photographs and may prescribe such terms and conditions as are just.

Judge Erickstad asked if the Uniform Rule draft had not been drawn before the passage of the Jencks Act in 1957.

Mr. Vogel, said that he was interested to see that the amended federal rule eliminates the requirement that the government should have obtained the documents by seizure or process.

Judge Erickstad noted that under the Jencks Act you are entitled to statements only after the witness has testified. He discussed the Jencks case and read the holding of the court, as follows:

We hold that the criminal action must be dismissed when the Government, on the ground of privilege, elects not to comply with an order to produce, for the accused's inspection and for admission in evidence, relevant statements or reports in its possession of government witnesses touching the subject matter of their testimony at the trial. . . . The burden is the Government's, not to be shifted to the trial judge, to decide whether the public prejudice of allowing the crime to go unpunished is greater than that attendant upon the possible disclosure of state secrets and other confidential information in the Government's possession.

Jencks v. United States, 353 U.S. 673, 1 L. Ed. 2d 1103, 77 Sup. Ct. 1007, 1015 (1957).

-5-

Mr. Vogel said that he was in favor of a more detailed rule but that he was not sure it is necessary to follow the Jencks case exactly. He said he has used the rule and is using it now, and that he could assure the committee that despite Justice Clark's dissent which asserted that "Unless the Congress changes the rule announced by the Court today, those intelligence agencies of our Government engaged in law enforcement may as well close up shop," he could assure the committee that the federal agencies have not had to close up shop.

Judge Murray asked: What do we think of discovery for the prosecution?

Judge Erickstad said that he sees it as a balancing of equities.

Mr. Vogel said that the reviser's note shows that Justices Black and Douglas view 16(c) as unconstitutional.

Judge Erickstad said he has had experience with the troubles of discovery; he mentioned the Jager and Stewart cases [State v. Jager, 85 N.W.2d 240 (N.D. 1957); State v. Jager, 87 N.W.2d 58 (N.D. 1957); State v. Jager, 91 N.W.2d 337 (N.D. 1958)].

Judge Murray read part of the notes of the Advisory Committee, as follows:

State cases have indicated that a requirement that the defendant disclose in advance of trial materials which he intends to use on his own behalf at the trial is not a violation of the privilege against self-incrimination. (citing cases)

18 U.S.C.A., Rule 16, 1967 pocket part, at 177.

Mr. Vogel read the draft of proposed Uniform Rule 26, Notice of Alibi.

Mr. Vogel said that he wished to withdraw his draft of rule 39, supervision of Appeal, which has been deleted from the federal rules

The committee recessed for lunch at 11:51 a.m. and was called to order again at 1:37 p.m., with the same persons present as before except for Judge Burdick.

Judge Murray read § 3600 of title 18, U.S.C.A. [The Jencks Act], as follows:

§ 3600. Demands for production of statements and reports of witnesses

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

(b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such

-6-

statement relates 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.

(c) If the United States 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 United States 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 United States 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.

(d) If the United States elects not to comply with an order of the court under paragraph (b) or (c) hereof to deliver to the defendant any such statement, or such portion thereof as the court may direct, 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.

(e) The term "statement" as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States means (1) a written statement made by said witness and signed or otherwise adopted or approved by him; or

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

Mr. Vogel noted that Federal Rule 16 covers the Jencks Act but goes far beyond it.

Judge Murray read a part of the legislative history of the Jencks Act. [For a full discussion, see 1957 U.S. Code Cong. and Adm. News, at 1861.]

Mr. Vogel mentioned two cases in point: Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963); Giles v. Maryland, 386 U.S. 66, 17 L. Ed. 2d 737, 87 S. Ct. 793 (1967).

The chairman asked if the committee wished to work from the draft of the Commissioners on Uniform State Laws or from the federal rule.

-7-

Judge Murray said he believed it would be better to work from the federal rule. He moved that the committee should adopt a rule based on Federal Rule 16 as amended in 1966, in lieu of the draft which he had presented and which was based on the draft of the Commissioners on Uniform State Laws. Judge Ilvedson seconded the motion. The motion carried.

Judge Murray asked: Do we want to talk about grand juries in this rule?

Judge Ilvedson read a sentence from one of the grand jury statutes regarding secrecy.

The chairman instructed the secretary to make note that several sections of ch. 29-10 are affected.

Judge Smith mentioned § 29-10-29, Secrecy of things said, and votes; and Doctrine of Discovery in Criminal Law Procedure, Notes, 43 N. Dak. L. Rev. 333.

Judge Burdick returned to the meeting.

Judge Morris read § 29-10-26, Who may be present during sessions of grand jury.

Mr. Vogel discussed Brady v. Maryland, supra, and read the holding of the court. He also read from Handbook on Criminal Procedure in the United States District Court § 8.3 (Motion for Production of Evidence favorable to the Accused), at 138.

There followed a discussion of grand juries. The secretary was instructed to make note that grand juries are established under § 8 of the state constitution.

Judge Murray read rule 16(a) as based on the federal rules as follows:

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 government, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney; (2) 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 government, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney; and (3) recorded testimony of the defendant before a grand jury.

Judge Murray moved the adoption of rule 16(a) as read. Judge Burdick seconded the motion.

Mr. Vogel discussed briefly Giles v. Maryland, supra, and said that in general it upholds the idea of Brady v. Maryland, supra.

The question being on Judge Murray's motion, the motion carried. [For text of rule 16(a) as adopted, see above.]

-8-

Judge Murray read rule 16(b) as based on the federal rule as follows:

Rule 16. Discovery and Inspection.

(b) Other Books, Papers, Documents, Tangible Objects or Places. Upon motion of a defendant the court may order the prosecuting attorney to permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings, or places, or copies or portions thereof, which are within the possession, custody or control of the government, upon a showing of materiality to the preparation of his defense and that the request is reasonable. Except as provided in subdivision (a)(2), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by government agents in connection with the investigation or prosecution of the case, or of statements made by government witnesses or prospective government witnesses (other than the defendant) to agents of the government except as provided in subdivision (h) of this rule.

Judge Murray moved the adoption of rule 16(b) as read. Judge Muggli seconded the motion.

Judge Muggli asked if the verb in the first sentence should be may orshall.

There was further discussion of the Giles case, Mr. Vogel noting that it was a 5 to 4 decision and lengthy, with a number of separate opinions.

The question being on Judge Murray's motion, the motion carried. [For text of rule 16(b) as adopted, see above.]

Mr. Vogel remarked that in Giles the inference is that the duty of the prosecution to disclose is in dependant of rule 16.

Judge Murray read rule 16(c) as based on the federal rule as follows:

Rule 16. Discovery and Inspection.

(c) Discovery by the Government. If the court grants relief sought by the defendant under subdivision (a)(2) or subdivision (b) of this rule, it may, upon motion of the government, condition its order by requiring that the defendant permit the government 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 at the trial and which are within his possession, custody or control, upon a showing of materiality to the preparation of the government's case and that the request is reasonable. 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 government or defense witnesses, or by prospective government or defense witnesses, to the defendant, his agents or attorneys.

Judge Murray moved the adoption of rule 16(c) as read. Judge Morris seconded the motion.

Judge Murray and Mr. Vogel recommended the reading of United States v. Fratello, 44 F.R.D. 444. Judge Murray summarized the case.

-9-

Judge Erickstad asked: Does Fratello hold that subdivision (c) is unconstitutional or does it say that (c) is misapplied?

Judge Murray said he thought it was merely interpreting 16(c).

Judge Murray commented on Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229 (1965).

Discussion followed. Judge Murray read the Barron § Holtzoff discussion of 16(c) from this committee's study material, pp. 16-5 and 16-6.

Mr. Peterson mentioned the following cases, all of which deal with the constitutional privilege of refraining from self-incrimination: Marchetti v. United States, 88 S. Ct. 697 (1968); Grosso v. United States., 88 S. Ct. 709 (1968); Haynes v. United States, 88 S. Ct. 722 (1968).

Judge Murray said that the philosophy of rule 16(c) is that the rights of society are paramount; he does not agree with it, believing the rule to be a violation in substance of the Fifth Amendment.

The question being on Judge Murray's motion, the motion carried, Judge Morris, Judge Burdick, Judge Ilvedson, Judge Muggli, and Judge Smith voting aye, Judge Murray, Mr. Shaft, and Mr. Vogel voting nay. [For text of rule 16(c) as adopted, see p. 8 of these minutes.]

Mr. Vogel asked that the record show that his reason for being opposed is based on United States v. Fratello, supra.

Judge Ilvedson said he thinks, in regard to the first three sentences of rule 16(c), that if the government has the right under those circumstances, it should always have the right, or else that it should not have the right at all.

Judge Murray read rule 16(d) as based on the federal rule as follows:

Rule 6. Discovery and Inspection.

(d) 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.

Judge Ilvedson moved the adoption of the draft as read. Judge Murray seconded the motion. The motion carried. [For text of rule 16(d) as adopted, see above.]

Judge Murray read rule 16(e) as based on the federal rule as follows:

Rule 16. Discovery and Inspection.

(e) Protective Orders. Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. Upon motion by the government the court may permit the government 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 government'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 by the defendant.

-10-

Judge Murray moved the adoption of the draft as read. Judge Muggli seconded the motion. The motion carried. [For text of rule 16(e) as adopted, see p. 9 of these minutes.]

Judge Murray read rule 16(f) as based on the federal rule as follows:

Rule 16. Discovery and Inspection.

(f) Time of Motion. A motion under this rule may be made only within 10 days after arraignment 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.

Judge Muggli suggested that a look be taken at timing of all procedures in criminal cases. He said he would like to change to ten days after the notice of the filing of the information. There followed a discussion of the difficulties of scheduling jury terms if the time of motion under the rule is set at ten days.

Judge Morris read § 29-18-01, Prosecution to be dismissed, conditions requiring--Information or indictment.

Judge Burdick mentioned § 27-05-07, Purposes for which district courts always open--when and where issues of fact triable.

Judge Murray read the notes of the Advisory Committee relating to rule 16(f) contained in 18 U.S.C.A.

Mr. Vogel moved that the proposed rule be amended by deleting the word only and inserting in lieu thereof the words before or. Judge Murray seconded the motion.

Judge Burdick read § 29-13-04, How arraignment made.

The question being on Mr. Vogel's motion, the motion carried.

Judge Burdick moved that the proposed rule be amended by deleting the word arraignment and inserting in lieu thereof the words a plea is entered. Judge Morris seconded the motion.

Judge Muggli read rule 10, Arraignment, as adopted.

The question being on Judge Burdick's motion, the motion carried.

Judge Muggli moved that the committee place on the agenda for the next meeting the reconsideration of rule 10 with the idea of prevent delays as our system is now constituted. He feels that this is one the biggest criticisms of our courts. Judge Smith seconded the motion. Following discussion Judge Muggli withdrew his motion.

Judge Murray moved to adopt rule 16(f) as amended. Mr. Shaft seconded the motion. The motion carried. Judge Ilvedson was absent from the room at the time of the vote. Rule 16(f) as adopted reads:

Rule 16. Discovery and Inspection.

(f) 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.

Judge Murray read rule 16 (g) as based on the federal rule as follows:

-11-

Rule 16. Discovery and inspection.

(g) 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.

Judge Murray read the discussion in this committee's study material at the bottom of p. 16-8.

Judge Murray moved the adoption of rule 16(g) as read. Judge Muggli seconded the motion.

Mr. Vogel remarked that if we have (c) we might as well have (g).

Judge Murray said that he would vote for (g) reluctantly, that he is concerned with (c) and (g) on philosophical grounds. He does not feel the defendant should have to produce evidence against himself.

The question being on Judge Murray's motion, the motion carried. Judge Murray requested that he be recorded as abstaining. [For text of rule 16(g) as adopted, see above.]

Judge Murray read 18 U.S.C.A. § 3500 [for text see pp. 5 and 6 of these minutes]. He moved the adoption of § 3600(a) as rule 16(h)(1), amended to read as follows:

Rule 16. Discovery and Inspection.

(h) Demands for production of statements and reports of witnesses.

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

Judge Ilvedson seconded the motion. The motion carried. (For text of rule 16(h)(1) as adopted see above.]

Judge Murray moved the adoption of § 3500 (b) as rule 16(h)(2), amended to read as follows:

Rule 16. Discovery and Inspection.

(h) Demands for production of statements and reports of witnesses.

(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 government 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.

-12-

Judge Muggli seconded the motion. The motion carried. [For text of rule 16(h)(2) as adopted see above.]

Judge Murray moved the adoption of § 3500(c) as rule 16(h)(3), amended to read as follows:

Rule 16. Discovery and Inspection.

(h) Demands for production of statements and reports of witnesses.

(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 government 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.

Judge Smith seconded the motion. The motion carried. [For text of rule 16(h)(3) as adopted see above.]

Judge Murray moved the adoption of § 3500(d) as rule 16(h)(4), amended to read as follows:

Rule 6. Discovery and Inspection.

(h) Demands for production of statements and reports of witnesses.

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

Mr. Shaft seconded the motion. The motion carried. [For text of rule 16(h)(4) as adopted see above.]

Judge Murray moved the adoption of § 3500(e) as rule 16(h)(5), amended to read as follows:

Rule 16. Discovery and Inspection.

(h) Demands for production of statements and report of witnesses.

-13-

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

a. a written statement made by said witness and signed or otherwise adopted or approved by him; or

b. a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the government and recorded contemporaneously with the making of such oral statement.

Judge Morris seconded the motion.

Judge Murray moved that the secretary be instructed to type the adopted rule in such form as is consistent with that of the other rules. Mr. Shaft seconded the motion. The motion carried.

The question being on the motion to adopt rule 16(h)(5) as amended, the motion carried. [For text of rule 16(h)(5) as adopted see p. 12 of these minutes and above.]

Mr. Vogel asked that the following comment be incorporated in the minutes and that the reviser be urged to incorporate it in his notes: "Courts and attorneys should realize that Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), and Giles v. Maryland, 386 U.S. 66, 17 L. Ed. 2d 737, 87 S. Ct. 793 (1967), may require a production of statements of witnesses and potential witnesses at different times and under different circumstances than are specified in the above rule."

On motion of Judge Ilvedson the committee recessed at 4:50 p.m. and was called to order again at 9:26 a.m., Dec. 12, with the same persons present as on the previous day.

After a discussion of the weather it was decided to postpone a decision on whether to continue the meeting all day.

The chairman instructed the secretary to make note in the minutes that the court in Fratello said that whether the Fifth Amendment should preclude discovery by the prosecution of evidence not sought for the preparation of its prima facie case is a matter to be considered when that case arises. United States v. Fratello, 44 F.R.D. 444, 451.

Judge Murray stated that the record should show that besides the Fifth Amendment we have § 13 of the North Dakota Constitution, which provides:

In criminal prosecutions in any court whatever, the party accused shall have the right to a speedy and public trial; to have the process of the court to compel the attendance of witnesses in his behalf; and to appear and defend in person and with counsel. No person shall be twice put in jeopardy for the same offense, nor be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law.

Judge Murray read his draft of rule 26 as follows:

Rule 26. Evidence.

In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by law or by these rules. The admissibility of evidence and the competency and privileges of witnesses shall be governed, except when a

-14-

statute or these rules otherwise provide, by the principles of the common law as they may be interpreted by the courts of this state in the light of reason and experience.

Judge Murray read the note of the Advisory Committee regarding Federal Rule 26, as follows:

This rule contemplates the development of a uniform body of rules of evidence to be applicable in trials of criminal cases in the Federal courts. It is based on Funk v. United States, 54 S. Ct. 212, 290 U.S. 371, 78 L. Ed. 369, 93 A.L.R. 1136, and Wolfle v. United States, 54 S. Ct. 279, 291 U.S. 7, 78 L. Ed. 617, which indicated that in the absence of statute the Federal courts in criminal cases are not bound by the State law of evidence, but are guided by common law principles as interpreted by the Federal courts "in the light of reason and experience." The rule does not fetter the applicable law of evidence to that originally existing at common law. It is contemplated that the law may be modified and adjusted from time to time by judicial decisions. . . .

18 U.S.C.A. Rule 26, p. 444.

Judge Burdick stated that he thinks the rule in that respect is clearly stated. He defined the common law as the decisional law of a jurisdiction based on reason and experience.

There followed a lengthy discussion of the common law. The secretary was instructed to make note of Note 1, Rule 26, 18 U.S.C.A., p. 444, quoted in part above. The consensus was that the common law of England is a guide, along with developments in the courts of other states and in the federal courts.

The chairman asked what has happened to the Restatement of Evidence and what is being done by the Commissioners on Uniform State Laws.

Judge Burdick replied that the Commissioners are awaiting a study which is to come out of the federal courts. He said that Kansas has adopted the original draft and that New Jersey and California have adopted it with many changes. He said that many courts are adopting Restatement of Evidence piecemeal.

Judge Murray moved the adoption of rule 26 as read. Judge Muggli seconded the motion.

Judge Muggli read the third sentence of Alaska Rule 26 as follows:

In the absence of rule, the evidence shall be presented according to the most convenient method prescribed by common law principles, and the principle which favors the reception of the evidence shall govern.

He asked: Would that be helpful?

Judge Burdick said he thought it was too liberal. He mentioned the Minnesota Rule of Exclusion, which lets in everything except what is excluded.

Judge Murray stated that he favored keeping the rules of evidence as strict as possible.

The question being on Judge Murray's motion, the motion carried. [For text of rule 26 as adopted see p. 13 of these minutes and above.]

-15-

Judge Muggli read his draft of rule 27 as follows:

Rule 27. Proof of Official Record.

An official record or an entry therein or the lack of such record or entry may be proved in the same manner as in civil actions.

Judge Muggli read Civil Rule 44, Proof of Official Record (N.D. R.Civ.P.).

Judge Muggli moved that rule 27 be adopted as read. Judge Burdick seconded the motion. The motion carried. [For text of rule 27 as adopted see above.]

The secretary was instructed to note that ch. 31-09, among others, is affected by rule 27.

Judge Morris discussed rule 29 and read the federal rule as follows:

Rule 29. Motion for Judgment of Acquittal.

(a) Motion Before Submission to Jury. Motions for directed verdict are abolished and motions for judgment of acquittal shall be used in their place. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. If a defendant's motion for judgment of acquittal at the close of the evidence offered by the government is not granted, the defendant may offer evidence without having reserved the right.

(b) Reservation of Decision on Motion. If a motion for judgment of acquittal is made at the close of all the evidence, the court may reserve decision on the motion, submit the case to the jury and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict.

(c) Motion After Discharge of Jury. If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within 7 days after the jury is discharged or within such further time as the court may fix during the 7-day period. If a verdict of guilty is returned the court may on such motion set aside the verdict and enter judgment of acquittal. It shall not be necessary to the making of such a motion that a similar motion has been made prior to the submission of the case to the jury.

Judge Morris compared the federal rule to the Alaska rule. He said he does not favor mixing up new trial with judgment of acquittal. He read rule 33, adopted Sep. 27, 1968, as follows:

Rule 33. New Trial.

The court on motion of a defendant may grant a new trial to him if required in the interest of justice. The motion for a new trial shall be in writing and shall point out with particularity the defects and errors complained of. A motion based upon newly discovered evidence or jury misconduct shall be supported by affidavits. When affidavits are presented to the court in support of a motion for new trial, the court, when

-16-

the affiants are residents of this state, may compel their personal attendance before it, and they may be examined and cross-examined under oath, touching the matters set forth in their affidavits. A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. A motion for a new trial on any other grounds shall be made within 7 days after verdict or finding of guilt or within such further time as the court may fix during the 7-day period.

Mr. Shaft read from 4 Barron § Holtzoff § 2224 (1967 pocket part, p. 124), which says in regard to the 1966 amendments to rule 29:

There is no longer any reference to a new trial. Rule 33 adequately covers the right of the defendant to move for a new trial, and it was thought that the court should not be able to force a new trial on a defendant who has not sought such relief. . . .

Judge Morris moved the adoption of Federal Rule 29 as North Dakota Rule 29. He read § 29-21-08, Defendant discharged to testify; § 29-21-09, Discharge to be witness for codefendant; and § 29-21-10, Such discharge an acquittal-Bar to further prosecution, and said that he thinks rule 29 does not supersede them and they should be retained.

Judge Burdick read rule 38 of the draft of the Uniform Rules.

Judge Morris withdrew his former motion and moved the adoption of Federal Rule 29 as North Dakota Rule 29, with the following amendments: Delete the first sentence of (a) and change the wording to read "indictment, information, or complaint" instead of "indictment or information". Judge Smith seconded the motion.

Judge Murray asked if there is an inherent motion for dismissal.

Mr. Vogel asked: Do we want every case to go to a jury or do want the judge to have the power to dismiss a case without giving it to the jury?

Judge Muggli asked: Will the title of (a) make people think it applies only to jury cases? He noted that other states leave out references to the jury.

Judge Burdick said he thinks reference to the jury should be deleted.

Judge Burdick said that the section of the rules dealing with terms should include the following: Where the term jury is used, it will include the court sitting without a jury where the jury is waived.

Mr. Vogel moved that the language of the title of (a) be change to Motion for Judgment of Acquittal. Judge Muggli seconded the motion.

Mr. Shaft read an annotation to Rule 29, 18 U.S.C.A. (p. 592), as follows:

In trial without a jury, a motion for judgment of acquittal at close of prosecution's case performs the same functions and is governed by the same consideration, as is a similar motion at a trial by jury. U. S. v. Maryland § Va. Milk Producers' Ass'n, D.C.D.C. 1950, 90 F. Supp. 681, reversed on other ground 193 F.2d 907, 90 U.S. App. D.C. 14.

He also noted that 4 Barron § Holtzoff § 2221 (1967 pocket part) note 0.1, p. 123, states that the 1966 amendments to rule 29 included changing the title of subdivision (a) from Motion for Judgment of Acquittal to Motion Before Submission to Jury.

-17-

Judge Murray read note 9, 18 U.S.C.A. Rule 29 (1967 pocket part), at 327, as follows:

The sufficiency of evidence to sustain conviction in case tried without jury on plea of not guilty should be reviewed as if there had been a formal motion for judgment of acquittal. Hall v. U. S., C.A. Tex. 1960, 286 F.2d 767, certiorari denied 81 S. Ct. 1098, 366 U.S. 910, 6 L. Ed. 2d 236.

Mr. Vogel withdrew his motion, and Judge Muggli withdrew his second.

The question being on Judge Morris's motion, the motion carried. Rule 29 as adopted reads as follows:

Rule 29. Motion for Judgment of Acquittal.

(a) Motion Before Submission to Jury. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment, information, or complaint after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. If a defendant's motion for judgment of acquittal at the close of the evidence

offered by the government is not granted, the defendant may offer evidence without having reserved the right.

(b) Reservation of Decision on Motion. If a motion for judgment of acquittal is made at the close of all the evidence, the court may reserve decision on the motion, submit the case to the jury and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict.

(c) Motion After Discharge of Jury. If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within 7 days after the jury is discharged or within such further time as the court may fix during the 7-day period. If a verdict of guilty is returned the court may on such motion set aside the verdict and enter judgment of acquittal. It shall not be necessary to the making of such a motion that a similar motion has been made prior to the submission of the case to the jury.

By general agreement it was decided to work until 1:00 p.m. and to then adjourn, in order to let those who had to drive in the storm get an early start.

Judge Murray read from Hall v. United States, 286 F.2d 676, 667 (5th Cir. 1960) as follows:

In any event, there can be little or no need for a formal motion for a judgment of acquittal in a criminal case tried to a court without a jury upon the defendant's plea of not guilty The plea of not guilty asks the court for a judgment of acquittal, and a motion to the same end is not necessary. De Luna v. United States, 5 Cir., 1955, 228 F.2d 114, 116. In such a case, therefore, we hold that the sufficiency of the evidence to sustain a conviction should be reviewed the same as if there had been a formal motion for judgment of acquittal.

Judge Morris said it was his view that § 29-21-37, Court may advise jury to acquit, will be superseded, but the three other statutes [§§ 29-21-08, -09, and -10] will be retained.

-18-

Judge Smith read his special report regarding objections to proposed rule 23(b), Trial by Jury or by the Court--Jury of Less Than Twelve, but it was decided to delay consideration of it until Mr. Glaser is present. Judge Muggli stated that when it is considered, the committee should give some thought to whether the words in writingshould be included in the rule.

Judge Smith read his draft of rule 31 and also his comments. He also read § 29-22-36, When defense insanity and jury acquits. The draft of rule 31 follows:

Rule 31. Verdict.

(a) Return. The verdict shall be unanimous. It shall be returned by the jury to the judge in open court.

(b) Several Defendants. If there are two or more defendants, the jury at any time during its deliberations may return a verdict or verdicts with respect to a defendant or defendants as to whom it has agreed; if the jury cannot agree with respect to all, the defendant or defendants as to whom it does not agree may be tried again.

(c) Conviction of Less Offense. The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.

(d) Poll of Jury. When a verdict is returned and before it is recorded the jury shall be polled at the request of any party or upon the court's own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.

Judge Murray read § 12-05-03, Acquitted for insanity--Court may commit.

Judge Smith moved the adoption of rule 31 as read.

Judge Burdick noted that the proposed Uniform Rule has a section on special verdicts, which he read:

Rule 40. Verdicts.

(a) Form. The jury may in all cases render either a general or, if so directed by the court, a special verdict. A general verdict may be either oral or written. A special verdict shall be in writing. Neither a general nor a special verdict need be in any particular form. With the consent of both parties, the court may authorize rendition of a sealed verdict if the jurors agree upon a verdict during a temporary adjournment of the court.

Judge Burdick said that in some cases special verdicts might be desirable; he mentioned sale of securities, accounting matters, and embezzlements.

Mr. Vogel said that it is true that special verdicts can be confusing, but they can also be helpful.

Judge Smith said he thinks they are all right in civil cases, but that in criminal cases it is either guilty or not guilty.

Judge Murray said that § 29-22-17, Special verdict--Sufficiency, sets out what a special verdict is.

-19-

Judge Burdick said he thinks what he had in mind is really special interrogatories, rather than special verdicts.

Mr. Peterson cited Gray v. United States, 174 F.2d 919 (8th Cir. 1949), which holds that special verdicts are not permitted in criminal cases.

The chairman asked Judge Burdick to make a report on special verdicts at the next meeting.

The question being on Judge Smith's motion, the motion carried. [For text of rule 31 as adopted, see p. 18 of these minutes.]

Judge Muggli asked if it would be possible for the jury to bring out a verdict as to one defendant and then go back to consider further on other defendants. It was agreed that this is the case. He asked: Is this desirable? The chairman asked him to look into this question and to report at a later meeting.

Judge Smith began the reading of statutes affected by rule 31 but was interrupted because of the passage of time. It was agreed that § 29-22-09, Return of verdict; § 29-22-10, Verdict may be oral or in writing--Preparation; § 29-22-12, Procedure when jurors appear; § 29-22-26, Verdict returned--Duty of court--May decrease or increase punishment, will be superseded by rule 31; and that § 29-22-11, Presence of defendant-Felony or misdemeanor, will be retained. Judge Smith agreed to consider ch. 12-06 in relation to rule 31 and to report at the next meeting.

Mr. Vogel suggested that he and Mr. Sand get together on their assignments of Rules 37, Taking Appeal, and Petition for Writ of Certiorari, and 39, Supervision of Appeal, both of which have been abrogated in the federal rules.

Judge Burdick moved that meetings be fixed on Thursdays and Fridays until further notice. The next meeting was set for Thursday and Friday, February 20 and 21, 1969, beginning at 9:00 a.m.

The meeting adjourned at 1:05 p.m.

Respectfully submitted:
Rebecca Quanrud, Secretary