Joint Procedure Committee Meeting

Scheduled on Thursday, February 20, 1969 @ 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

February 20, 1969

The Joint Committee of the Judicial Council and the State Bar Association for the Adoption of Rules of Criminal Procedure met at 9:2 a.m., Thursday, Feb. 20, 1969, in the hearing room of the Supreme Court.

Present were:
Supreme Court Judge Ralph Erickstad, Chairman;
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;
First Assistant Attorney General Paul M. Sand;
Mr. Gerald G. Glaser;
Mr. John Shaft.

Absent were:
Retired Supreme Court Judge James Morris;
Mr. Roger Persinger;
Mr. Robert L. Vogel.

Also present were
Mr. Dennis Schneider, law clerk;
Mrs. Rebecca Quanrud, secretary.

The chairman called the meeting to order, welcomed those present, and thanked Judge Burdick for obtaining copies of the reprint of Judge Traynor's Ground Lost and Found in Criminal Discovery, 39 N.Y.U. L. Rev. 228 (Apr. 1964), for the committee members.

Judge Smith read his report on Rule 23(b), Trial by Jury, Jury of Less Than Twelve. The substance was that a jury of fewer than twelve would not be unconstitutional. He cited In re Kortgaard (State ex rel Kortgaard v. Patterson), 66 N.D. 55, 267 N.W. 438, 105 A.L.R. 1107 (1936). However, he stated that as a matter of policy he was opposed to permitting the accused to accept a jury of anynumber less than twelve, that a jury of as few jurors as six would be acceptable, but a jury of one juror would not.

Judge Burdick moved the adoption of Rule 23(b) as follows:

Rule 23. Trial by Jury.

(b) Jury of Less than Twelve. Juries shall be of twelve, but at any time before verdict the parties may stipulate in writing, with the approval of the court, that the jury shall consist of any number less than twelve.

Mr. Shaft seconded the motion. Discussion followed. Judge Burdick said that he sees nothing wrong in oral waiver. He thinks waiver in open court may be preferable to waiver in writing. He thinks strongly there should be open court waiver.

Judge Muggli said he agrees with Judge Burdick.

Judge Burdick moved to amend his proposed wording of Rule 23(b) by adding the words or in open court after the words in writing. Mr. Shaft seconded the motion.

It was agreed that in conformity with Rule 23(a) the words entered upon the minutes should be included in Rule 23(b).

Judge Smith moved to amend Judge Burdick's proposed wording of Rule 23(b) by deleting the words number less than twelve and inserting in lieu thereof the words any lesser number not less less than six. Judge Muggli seconded the motion.

The question being on Judge Smith's motion, the motion lost on a voice vote.

Further discussion of Judge Burdick's motion followed.

Judge Muggli moved that the words entered upon the minutes be deleted from Rule 23(b). Judge Ilvedson seconded the motion. The motion carried.

The question being on Judge Burdick's motion to amend his draft of Rule 23(b), the motion carried.

The question being on the adoption of Rule 23(b) as amended, the motion carried. Rule 23(b) as adopted reads:

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Rule 23. Trial by Jury.

(b) Jury of Less Than Twelve. Juries shall be of twelve but at any time before verdict the parties may stipulate in writing or in open court, with the approval of the court, that the jury shall consist of any number less than twelve.

Judge Burdick moved to reconsider the action by which Rule 23(a) was adopted and to adopt the same wording with the following amendment: Delete the words entered upon the minutes. Judge Ilvedson seconded the motion.

Mr. Shaft asked: Is it necessary to have the consent of the prosecution for the defendant to waive the jury?

Judge Murray said that the Court has held that the defendant has no inherent right to waive a trial by jury, mentioning the Pandolfo case. He said he now feel the defendant should have such a right.

Mr. Sand said he disagrees, that the people have as many rights as the defendant.

The chairman stated that he thought the committee should feel free to adopt rules which reflect the current thinking of the members and not be restricted by former decisions of this court which may or may not meet constitutional standards defined since their rendition.

The secretary was instructed to make note in the minutes of the dissenting opinion in State v. Pandolfo, 98 N.W.2d 161 (N.D. 1959).

Judge Smith read Syllabus 2 of Ex parte Kortgaard, supra, as follows:

The constitutional provision preserving the right of trial by jury is a guaranty to the accused of a trial by a constitutional jury which the accused may affirmatively waive by the consent of the state's counsel and the sanction of the court.

The question being on Judge Burdick's motion, the motion carried. Rule 23(a) as amended reads:

Rule 23. Trial by Jury or by Court.

(a) Trial by Jury. Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing or in open court, with the approval of the court and the consent of the prosecution.

Judge Burdick moved that the action by which Rule 23(c) had been omitted be reconsidered. Mr. Sand seconded the motion. The motion carried.

Judge Burdick read Federal Rule 23(c) as amended in 1966 as follows:

Rule 23. Trial by Jury or by the Court.

(c) Trial Without a Jury. In a case tried without a jury the court shall make a general finding and shall in addition on request find the fact specially. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear therein.

Judge Smith suggested that the rule might be limited to felony cases.

Mr. Sand said he does not think we should make the requirements for a criminal case less than those for a civil case.

Judge Burdick moved the adoption of Federal Rule 23(c) as North Dakota Rule 23(c) with the addition of the words on request signed by the defendant.

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Judge Burdick left the meeting.

Judge Smith said he was opposed to the motion, that the requirement would give the defendant a chance to pick the judge's mind, which he could not do with a jury.

Judge Ilvedson said that he was not in favor.

Judge Muggli said that he was opposed, that it would be terribly complicated in some cases.

Mr. Glaser said that if he had a choice, he would rather have the judge announce his conclusions of law.

Judge Muggli noted that the rule would apply to city courts and justice courts.

The question being on Judge Burdick's motion, Judge Murray, Judge Burdick (by statement of the chairman), Mr. Sand, and Mr. Shaft voted aye; Judge Ilvedson, Judge Muggli, Judge Smith, and Mr. Glaser voted no; the chairman voted nay, and so the motion was declared lost.

Judge Burdick returned to the meeting.

The chairman requested consideration of the minutes of the last meeting. Judge Murray moved that they be accepted as submitted without being read. Mr. Glaser seconded the motion. The motion carried.

Judge Ilvedson said he had nothing to report on his assignment to investigate the experience of California in respect to use of discovery depositions in criminal cases (Rule 15(a)).

Judge Burdick said he had been too busy with legislative matters to work on his study of special verdicts as they might affect Rule 31. He discussed briefly the case of State v. Tugas, 222 P.2d 817 (Wash. 1950), in which special verdicts were used. The defense in Tugaswas insanity, and three questions were asked of the jury relating to the defendant's mental condition. The Supreme Court of Washington held that a special verdict reciting that the defendant was acquitted because of insanity or mental irresponsibility was not inconsistent with but merely explanatory of the general verdict of not guilty, and therefore procedure whereby trial court sought to have jury make a choice between what the court presumed to be inconsistent verdicts was unnecessary.

He stated that special findings are permitted in Oregon. He said that the federal rules do not say it cannot be done, and that he thinks it ought to be one of the tools available to the court, that there are cases in which the court ought to be able to know the facts. He said he thinks the court should have the authority to request special findings in conjunction with special verdicts.

The chairman asked Judge Burdick to continue his research on the subject.

Judge Burdick said that there is not much material on the point and that he would favor a rule allowing a verdict with special findings. He said he would move generally that the committee draft a rule that would authorize special findings, especially where there are several defenses interposed, such as the defense of alibi or insanity. There was no second to the motion.

The chairman appointed Judge Burdick to draft such a rule for submission at a future meeting.

Judge Burdick left the meetings.

The chairman called on Judge Muggli for a report on the question he had raised at the last meeting in regard to Rule 31, that is, whether is desirable that the jury may arrive at a verdict as to one defendant and then retire to attempt to arrive at verdicts as to the other defendants. He said that in checking our statute and the federal rule, he

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wonders if that is the intention of the federal rule. He read our statute, as follows:

29-22-25.Several defendants--Part convicted.--In a trial on an information or an indictment against several defendants, the jurors, if they cannot agree upon a verdict as to all, may render a verdict as to those in regard to whom they do agree, on which a judgment must be entered accordingly. The case as to the other defendants may be tried by another jury.

North Dakota Century Code.

It was decided to postpone discussion of this matter until after lunch. The chairman called on Judge Smith to continue his discussion of statutes affected by Rule 31, which he had begun at the last meeting. Judge Smith read or discussed briefly the following sections, which will be superseded: §§ 29-22-28, Reconsideration of verdict neither general nor special; 29-22-29, Judgment if jurors persist--Acquittal; 29-22-25, Several defendants--Part convicted; 29-22-23, Conviction of attempt or of included offense; 29-22-13, Jurors may be polled--Procedure; 29-22-14, Clerk to record verdict--Dissent--Procedure; 29-22-15, General or special verdict--Libel; 29-22-17, Special verdict--Sufficiency; 29-22-18, Special verdict rendered in writing; 29-22-19, Form of special verdict; 29-22-20, Sealed verdict-Proceedings upon; 29-22-21, Sealed verdict--Admonition to jurors; 29-22-32, Argument of special verdict; 29-22-33, Judgment upon special verdict; 29-22-34, New trial must be ordered for incomplete verdict.

He listed the following sections which will be retained: §§ 29-22-01, Retirement of jurors; 29-22-02, Custody of jurors; 29-22-03, Selection of a foreman; 29-22-04, What papers jurors may take; 29-22-05, Disagreement--Further instructions; 29-22-06, Court may recall jurors for supplemental instructions; 29-22-07, Court open during absence of jury; 29-22-08, Verdict prevented--Cause retried; 29-22-11, Presence of defendant--Felony or misdemeanor.

Judge Burdick returned to the meeting.

A discussion of § 29-22-16, General verdicts--Contents, and its relation to Rule 11, Pleas, follows.

The meeting recessed at 12:05 p.m. and was called to order again at 14:40, with the same persons present as before and also Mr. Roger Persinger.

Judge Smith said he would do further research on § 29-22-16 and report at the next meeting. He continued his discussion of statutes affected by Rule 31 as follows: §§ 29-22-22, Verdict rendered and additional instruction given on any day (retained); 29-22-24, Finding on charge of previous conviction (retained); 29-22-27, Reconsideration of verdict of guilty--None of acquittal (retained); 29-22-30, Judgment of acquittal--Discharge of defendant (passed); 29-22-31, Verdict of guilty--Procedure (retained; possible surplusage); 29-22-35, When conviction or acquittal a bar (retained); 29-22-36, When defense insanity and jury acquits (retained); 12-05-03, Acquitted for insanity--Court may commit (retained); 12-02-01, Persons capable of committing crime--Ignorance of law no excuse (retained); 12-06-04, When court determines punishment (superseded); 12-06-05, Punishment between certain limits--Who determines (superseded); 12-06-08, Court to enter judgment according to verdict--Court may reduce judgment (superseded).

Judge Burdick commenced that § 12-06-09, When term of imprisonment commences to run, may possibly be revised by the legislature.

Mr. Sand read his draft of Rule 28 as follows:

Rule 28. Expert Witnesses and Interpreters.

(a) Expert Witnesses. The court may order the defendant or the state or both to show cause why expert witnesses should not be

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appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint witnesses of its own selection. An expert witness shall not be appointed by the court unless he consents to act. A witness so appointed shall be informed of his duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of his findings, if any, and may thereafter be called to testify by the court or by any party. He shall be subject to cross-examination by each party. The court may determine the reasonable compensation of such a witness and direct its payment out of such funds as may be provided by law. The parties also may call expert witnesses of their own selection.

(b) Interpreters. The court may appoint an interpreter of its own selection and may fix the reasonable compensation of such interpreter. Such compensation shall be paid out of funds provided by law or by the government, as the court may direct.

Mr. Sand moved the adoption of Rule 28 as read. Judge Smith second the motion.

Judge Muggli questioned the availability of funds. He asked: Should this be limited to indictments or informations?

Judge Burdick moved that the second sentence of Rule 28(b) be amended to read: The court may direct that such compensation be paid out of public funds. Judge Ilvedson seconded the motion.

Following discussion Judge Burdick withdrew his motion and Judge Ilvedson withdrew his second.

Judge Burdick moved that the second sentence of Rule 28(b) be amended to read: The court may direct that such compensation be paid out of such funds as may be provided by law. Judge Murray seconded the motion. The motion carried.

The question being on the adoption of Rule 29 as amended, the motion carried. Rule 28 as adopted reads:

Rule 28. Expert Witnesses and Interpreters.

(a) [For wording see p. 4 and above.]

(b) Interpreters. The court may appoint an interpreter of its own selection and may fix the reasonable compensation of such interpreter. The court may direct that such compensation be paid out of such funds as may be provided by law.

Mr. Shaft read his revised draft of Rule 32(a)(1) a follows:

Rule 32. Sentence and Judgment.

(a) Sentence.

(1) Imposition of Sentence. Sentence shall be imposed without unreasonable delay. Pending sentence the Court may commit the defendant or continue or alter the bail. Before imposing sentence the Court shall afford counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation

of punishment. If the defendant is being sentenced following a plea of guilty or nolo contendere the Court shall question the defendant to ascertain that he understood the meaning of his plea, and that it was freely and voluntarily entered. The State also shall be given an opportunity to be heard on any matter material to the imposition of sentence.

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Mr. Shaft moved the adoption of Rule 32(a)(1) as read. Judge Smith seconded the motion. Discussion followed.

Mr. Shaft moved that the fourth sentence be deleted. Judge Muggli seconded the motion. The motion carried.

Judge Burdick moved that the third sentence be amended by adding the words or which would required the court to withhold pronouncement of judgment and sentence after the word punishment. Judge Muggli seconded the motion. The motion carried.

Judge Burdick moved that the words or other authorized disposition made be added in the first line after the word imposed. Judge Muggli seconded the motion. The motion carried.

Judge Burdick moved that the second sentence be amended by deleting the word sentence and inserting the word disposition in lieu thereof. Judge Muggli seconded the motion. The motion carried.

Judge Burdick moved that the third sentence be amended by adding the words or making other disposition after the word sentence. Mr. Glaser seconded the motion.

Judge Burdick withdrew his motion.

At the chairman's request, Mr. Schneider read § 29-26-11, Defend informed of rights.

The question being on the adoption of Rule 32(a)(1) as amended, the motion carried. Rule 32(a)(1) as adopted reads:

Rule 32. Sentence and Judgment.

(a) Sentence.

(1) Imposition of Sentence. Sentence shall be imposed or other authorized disposition made without unreasonable delay. Pending disposition the Court may commit the defendant or continue or alter the bail. Before imposing sentence the Court shall afford counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment or which would require the court to withhold pronouncement of judgment and sentence. The prosecution shall be given an opportunity to be heard on any matter material to the imposition of sentence.

Mr. Shaft read his draft of Rule 32(a)(2) as follows:

Rule 32. Sentence and Judgment.

(a) Sentence.

(2) Notification of Right to Appeal. After imposing sentence in a case which has gone to trial on a plea of not guilty, the Court shall advise the defendant of his right to appeal.

Mr. Shaft moved the adoption of Rule 32(a)(2) as read. Judge Muggli seconded the motion. The motion carried. [For the wording of Rule 32(a)(2) as adopted, see above.]

Mr. Shaft read his draft of Rule 32(b) as follows:

Rule 32. Sentence and Judgment.

(b) Judgment. A judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication and sentence. If the defendant is found not guilty or for any other reason is entitled to be discharged, judgment shall be

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entered accordingly. The judgment shall be signed by the judge and entered by the clerk.

Mr. Shaft moved the adoption of Rule 32(b) as read. Judge Murray seconded the motion.

Judge Murray moved that the first sentence be amended by deleting the word findings and substituting the word determination. Judge Muggli seconded the motion.

Judge Burdick made the substitute motion that the words or findingsbe deleted from the first sentence. Mr. Shaft seconded the motion.

The secretary was instructed that a note should be made in the minutes that § 1-04-41, Verdict--Definition, should be retained.

The question being on the adoption of Rule 32(b) as amended, the motion carried. Rule 32(b) as adopted reads:

Rule 32. Sentence and Judgment.

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

Mr. Shaft read his draft of Rule 32(c)(1) as follows:

Rule 32. Sentence and Judgment.

(c) Presentence Investigation.

(1) When made. The probation service of the court, if any, shall make a presentence investigation and report to the court before the imposition of sentence or the granting of probation unless the court otherwise directs. The report shall not be submitted to the court or its contents disclosed to anyone unless the defendant has pleaded guilty or has been found guilty.

Mr. Shaft moved the adoption of Rule 32(c)(1) as read. Mr. Glaser seconded the motion.

Judge Burdick moved that the first sentence be changed to read: The court may direct that a presentence investigation and report may be made to the court before imposing sentence or making any other authorized disposition. Judge Muggli seconded the motion.

Mr. Sand made the substitute motion that the first sentence be changed to read: Any probation services available to the court shall upon request of the court make a presentence investigation and report to the court before the imposition of sentence or the granting of probation. Judge Ilvedson seconded the motion.

The question being on Mr. Sand's motion, Judge Ilvedson, Mr. Sand, and Mr. Persinger voted aye; Judge Murray, Judge Burdick, Judge Muggli, Judge Smith, Mr. Shaft, and Mr. Glaser voted nay. The motion failed.

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

The question being on the adoption of Rule 32(c)(1) as amended, the motion carried. Rule 32(c)(1) as adopted reads:

Rule 32. Sentence and Judgment.

(c) Presentence Investigation.

(1) When made. The court may direct that a presentence investigation and report may be made to the court before imposing

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sentence or making any other authorized disposition. The report shall not be submitted to the court or its contents disclosed to anyone unless the defendant has pleaded guilty or has been found guilty.

Mr. Shaft read his draft of Rule 32(c)(2) as follows:

Rule 32. Sentence and Judgment.

(c) Presentence Investigation.

(2) Report. The report of the presentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the court. The court before imposing sentence may disclose to the defendant or his counsel all or part of the material contained in the report of the presentence investigation and afford an opportunity to the defendant or his counsel to comment thereon. Any material disclosed to the defendant or his counsel shall be also disclosed to the attorney for the prosecution.

Mr. Shaft moved the adoption of Rule 32(c)(2) with the following amendments: In the second sentence delete the word may and insert in lieu thereof the word must, and delete the words or part. Mr. Sand seconded the motion.

Discussion followed, with particular reference to reports made by psychiatrists and psychologists. Reference was made to § 29-26-18 (pocket part), Evidence in aggravation or mitigation of punishment. Mr. Schneider read from State v. Willms, 117 N.W.2d 84 (N.D. 1962). Mr. Glaser read § 29-26-19, Other evidence prohibited. Judge Burdick discussed Williams v. New York, 337 U.S. 241, 93 L.Ed. 1337, 69 S. Ct. 1079 (1949), and Williams v. Oklahoma, 358 U.S. 576, 3 L. Ed. 2d 516, 79 S. Ct. 421 (1959). Mr. Schneider reported that Shephardizing both cases showed that neither has been overruled.

Judge Burdick read from Williams v. New York, as follows:

Modern changes in the treatment of offenders make it more necessary now than a century ago for observance of the distinctions in the trial and sentencing processes. For indeterminate sentences and probation have resulted in an increase in the discretionary powers exercised in fixing punishments.

. . . .

It is urged, however, that we should draw a constitutional distinction as to the procedure for obtaining information where the death sentence is imposed. We cannot accpe the contention. Leaving a sentencing judge free to avail himself of out-of-court information in making such a fateful choice of sentences does secure to him a broad discretionary power, one susceptible of abuse. But in considering whether a rigid constitutional barrier should be created, it must be remembered that there is possibility of abuse wherever a judge must choose between life imprisonment and death. And it is conceded that no federal constitutional objection would have been possible if the judge here had sentenced appellant to death because appellant's trial manner impressed the judge that appellant was a bad riak for society, or if the judge had sentenced him to death giving no reason at all. We cannot say that the due-process clause renders a sentence void merely because a judge gets additional out-of-court information to assist him in the exercise of this awesome power of imposing

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the death sentence.

Williams v. New York, supra, 93 L. Ed. 1337, 1343-44.

Mr. Shaft read from the Advisory Commission's notes as follows:

It is not a denial of due process of law for a court in sentencing to rely on a report of presentence investigation without disclosing such report to the defendant or giving him an opportunity to rebut it. [citing Williams v. New York and Williams v. Oklahoma, supra]. However, the question whether as a matter of policy the defendants should be accorded some opportunity to see and refute allegations made in such reports has been the subject of heated controversy . . . .

. . . .

Practice in the federal courts is mixed, with a substantial minority of judges permitting disclosure while most deny it. . . .

Substantial objections to compelling disclosure in every case has been advanced by federal judges, including many who in practice often disclose all or parts of presentence reports. . . . Hence the amendment goes no further than to make it clear that courts may disclose all or part of the presentence report to the defendant or to his counsel. It is hoped that courts will make increasing use of their discretion to disclose that defendants generally be given full opportunity to rebut or explain facts in presentence reports which will be material factors in determining sentences. . . .

It is also provided that any material disclosed to the defendant or his counsel shall be disclosed to the attorney for the government. Such disclosure will permit the government to participate in the resolution of any factual questions raised by the defendant.

18 U.S.C.A., Rule 32 (1969 pocket part, pp. 5 and 6).

Mr. Sand read from Williams v. Oklahoma as follows:

(b) The statement by the State's Attorney of the details of the crime and of petitioner's criminal record--all admitted by petitioner to be true--did not deprive petitioner of fundamental fairness or of any right of confrontation or cross-examination. Pp. 583-584.

Williams v. Oklahoma, supra, 358 U.S. 576 (syllabus).

Judge Ilvedson spoke in opposition to the amendment, relying on the present statute.

Judge Burdick stated that he would like to recast the sentence a bring in a new version tomorrow morning.

The meeting adjourned at 5:32 p.m.

The meeting was called to order at 9:12 a.m. on February 21, with the same persons present as on the previous afternoon.

Copies of Judge Burdick's proposed revision of the second sentence of Rule 32(c)(2) were distributed. They read:

Before imposing sentence, the court, upon request of a party and to the extent that the interests of justice require,

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shall (1) disclose to the party or counsel all or part of any written presentence report received by the court and (2) permit the party or counsel to cross-examine the individual making the report and to controvert the same. Sources of confidential information need not be disclosed.

Judge Burdick made the substitute motion that the second sentence of Mr. Shaft's draft of Rule 32(c)(2) be deleted and his proposed revision be inserted in lieu thereof. Judge Murray seconded the motion.

Mr. Persinger mentioned Baker v. United States, 388 F.2d 931 (4th Cir. 1968), in which a prisoner moved for vacation of his sentence on the ground that the judge had considered a presentence report that was false. The Circuit Court reversed the trial court. He read from the opinion as follows:

By its terms, the rule is permissive as to whether the court disclosesall or part of the material contained in the report of presentence investigation. We are mindful that in the district courts in this Circuit there is wide variation in the practice concerning disclosure. In one district disclosure of all is the rule, withholding of part the exception. In other districts, including at least one where disclosure of the report has resulted in improper pressures being visited on confidential informants, with the consequent risk that limitation of the sources of information and effectiveness of the report will ensue, the practice is to treat the presentence report as a confidential document solely for consideration by the court.

It is not now our intention to formulate a prescription of all that should be disclosed to the accused. We outline only the minimum disclosure required under the particular facts of this case and without which there would be an abuse of discretion. . . .

Baker v. United States, supra, 933.

Judge Muggli asked about the minimum standards laid down by federal court. Mr. Persinger said that in this district Judge Register questions the defendant but does not show him the record.

Judge Murray said that on thinking it over, he believes that some leeway should be allowed.

Mr. Persinger read from Baker as follows:

Admittedly there are items in the report of which the defendant is rightfully entitled to be advised. The sentencing court should apprise him, orally from the bench, of at least such pivotal matters of public record as the convictions and charges of crime, with date and place, attributed to him in the report. As this may be done without handing the defendant or counsel the report, the procedure could not lead to a destruction of the probation officer's sources of information.

The defendant should then be given an opportunity to refute or explain any record disparagement of his earlier deportment. Indeed, this is vital in any consideration of the report.

Baker v. United States, supra, 933.

There followed a discussion of what should be contained in the report.

Judge Ilvedson remarked that he liked Judge Register's method.

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Mr. Persinger read from Baker as follows:

No conviction or criminal charge should be included in the report or considered by the court, unless referable to an official record. Of course, the defendant's general conduct and behavior, as well as his reputation in the community in regard to honesty, rectitude and fulfillment of his civic and domestic responsibilities, may be treated in the report. Whether any of such commentary should be released will remain in the discretion of the District Judge. Names of informants, as well as intimate observations readily traceable by the defendant, ordinarily should be withheld lest, to repeat, disclosure cut off the investigator from access to knowledge highly valuable to the sentencing court. It is to be expected of the judge, however, that he winnow substance from gossip.

Baker v. United States, supra, 934.

Mr. Glaser asked if revealing what is in the reports does not invite appeal.

Mr. Sand he is concerned with the State's rights.

Judge Smith asked, regarding secrecy of the reports, why we are so very careful in receiving evidence sufficient to convict, but once we have convicted, instead of being so open and public we are preserving a system of being secretive. He said we make it difficult to convict a man, but once it is done, we can go back to Star Chamber and sentence him on secret information. He asked how we can explain this intelligently to a person not a lawyer or a judge.

Judge Erickstad said he does not know, but thought that it should be within the discretion of the judge, who must consider what is best for the community and for the defendant.

Mr. Glaser said that the court, with such information, might impose a lower sentence than without it, but that the defendant doesn't know that.

The question being on Judge Burdick's substitute motion, the motion failed, Judge Murray, Judge Burdick, Judge Muggli, and Mr. Persinger voting aye; Judge Ilvedson, Judge Smith, Mr. Sand, Mr. Glaser, and Mr Shaft voting nay.

The question being on Mr. Shaft's motion, the motion failed, judge Smith, Mr. Sand, Mr. Shaft, and Mr. Glaser voting aye; Judge Murray, Judge Ilvedson, Judge Burdick, Judge Muggli, and Mr. Persinger voting nay.

Judge Ilvedson said that he believes we need a provision for allowing in FBI records without verification.

Judge Ilvedson moved that the committee reconsider Judge Burdick amendment. Judge Murray seconded the motion. Discussion followed, a Judge Ilvedson withdrew his motion and Judge Murray withdrew his second.

Mr. Shaft moved that Rule 32(c)(2) be adopted as read except that the second sentence be amended to read as follows: The court, upon request of a party, must, unless for good cause shown, disclose to the party or counsel all or any part of any presentence report. Mr. Sand seconded the motion.

Judge Smith questioned the use of the phrase for good cause shown.

Judge Erickstad remarked that normally the trial courts have discretion.

Mr. Shaft withdrew his motion, and Mr. Sand withdrew his second.

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Mr. Shaft moved the adoption of Rule 32(c)(2) as originally submitted. Judge Smith seconded the motion.

Mr. Murray said that the federal rules does not have the word must. He said he feels that in extensive practice in federal court, he has never suffered because of this.

Judge Ilvedson said that he believed may was better than must.

Mr. Shaft made the substitute motion that Rule 32(c)(2) be adopted in the language previously submitted with the addition of the parenthetical numerals (1) after the word may and (2) after the word and. Judge Murray seconded the motion. The question being on Mr. Shaft's substitute motion, the motion carried, Judge Murray, Judge Burdick, Judge Ilvedson, Judge Muggli, and Judge Smith voting aye, and Mr. Sand, Mr. Glaser, and Mr. Shaft voting nay.

Rule 32(c)(2) as adopted reads:

Rule 32. Sentence and Judgment.

(c) Presentence Investigation.

(2) Report. The report of the presentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the court. The court before imposing sentence may (1) disclose to the defendant or his counsel all or part of the material contained in the report of the presentence investigation and (2) afford an opportunity to the defendant or his counsel to comment thereon. Any material disclosed to the defendant or his counsel shall be also disclosed to the attorney for the prosecution.

Mr. Sand stated that his reason for voting nay is that he believes the information as submitted to the court should be available to the State and also in any event to the counsel for the defendant in all cases.

Mr. Persinger said that he knows both of the federal probation officers and is sure that they believe that if their reports were to be made available to anybody but the court, their effectiveness would be greatly reduced. The reason is that their sources would not be as open and would not give them the information.

Judge Ilvedson said that people are afraid to become involved in such cases.

Mr. Persinger said that the federal probation officers make recommendations as between probation and confinement, and that the recommendation is ordinarily revealed to the U. S. Attorney.

Mr. Shaft said that his view is that it is best to include the word must.

Mr. Sand said that there have been instances in which a judge has given specific instructions to probation or parole officers that they are not to reveal information to anyone.

Judge Ilvedson moved that § 29-26-18 (pocket part), Evidence in aggravation or mitigation of punishment--How presented, should be retained. Mr. Sand seconded the motion. The motion carried.

Judge Smith asked: Do we wish to supersede §§ 29-26-17, Extent of punishment-Aggravation, mitigation--Hearing, and 29-26-18, Evidence in aggravation or mitigation of punishment--How presented?

Mr. Shaft read § 29-26-17 and moved that it be retained without reference in the rules. Judge Smith seconded the motion. The motion carried.

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Mr. Shaft read § 29-26-18. Judge Burdick moved that § 29-26-18 be put on the list for referral to the legislature for possible action. Mr. Glaser seconded the motion. The motion carried.

The secretary was instructed to make note in the minutes that Rule 32 may be in conflict with § 29-16-18.

Mr. Shaft read § 29-26-19, Other evidence prohibited. He moved that it be placed on the list for study by Judges Burdick and Muggli. Judge Ilvedson seconded the motion. The motion carried.

Mr. Shaft read his draft of Rule 32(d) as follows:

Rule 32. Sentence and Judgment.

(d) Withdrawal of Plea of Guilty. A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended, but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.

Mr. Shaft moved that the draft of Rule 32(d) be amended as follows: Change the word suspended to the word deferred. Mr. Sand seconded the motion.

There followed a discussion of § 12-53-13, Imposition of sentence suspended-When authorized. Judge Muggli read that section.

Mr. Schneider read from John v. State, 160 N.W.2d 37 (N.D. 1968).

Mr. Persinger read Federal Rule 35, Correction or Reduction of Sentence.

The question being on Mr. Shaft's motion to amend the draft of Rule 32(d), the motion carried.

Judge Smith mentioned the Huber Act (Prisoner Employment and Labor), N.D.C.C. §§ 12-06-30, -31, and -32.

Judge Burdick moved that the draft of Rule 32(d) be amended by adding the words or deferment of sentence after the word sentence. Mr. Shaft seconded the motion. The motion carried.

Mr. Shaft moved that Rule 32(d) be adopted as amended. Mr. Sand seconded the motion. The motion carried.

Rule 32(d) as adopted reads:

Rule 32. Sentence and Judgment.

(d) Withdrawal of Plea of Guilty. A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is deferred; but to correct manifest injustice the court after sentence or deferment of sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.

Mr. Shaft read his draft of Rule 32(e) as follows:

Rule 32. Sentence and Judgment.

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

He mentioned that statutes affected were §§ 12-53-04, Probation and parole from county jail, and 12-53-06, When sentence for felony suspended court must place defendant on probation.

Mr. Shaft moved the adoption of Rule 32(e) as read. Judge Smith seconded the motion.

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Judge Burdick said he thought the rule should say something like: After conviction if the sentence is imposed or imposition of sentence deferred, the court may place the defendant on probation and must if it is deferred.

Mr. Shaft made the substitute motion that the draft of Rule 32(e) be amended by deleting the words as provided by law. After discussion he withdrew his motion.

The question being on Mr. Shaft's motion to adopt Rule 32(e) as read, the motion carried. [For wording of Rule 32(e) as adopted, see p. 13 of these minutes.]

Mr. Shaft read his draft of Rule 32(f) as follows:

Rule 32. Sentence and Judgment.

(f) Revocation of Probation. The court shall not revoke probation on a deferred imposition of sentence except after a hearing at which the defendant shall be present and apprised of the grounds on which such action is proposed. The defendant may be admitted to bail pending such hearing.

Mr. Shaft moved the adoption of Rule 32(f) as read. Mr. Sand seconded the motion.

Mr. Glaser said he was not clear whether it applies to misdemeanors.

Judge Smith mentioned § 12-53-03, Suspension when crime is misdemeanor--Power to recommit limited.

Mr. Shaft read § 12-53-11, Board of pardons may revoke suspension and terminate probation after hearing.

Judge Burdick moved that the first sentence of the draft of Rule be amended to read as follows: Subject to limitations imposed by law, the court shall not revoke probation on a suspended sentence or deferred imposition of sentence except after a hearing at which the defendant shall be present and apprised of the grounds on which such action is proposed.

Judge Ilvedson asked: Why not just strike out on a deferred imposition of sentence?

Mr. Glaser seconded Judge Burdick's motion.

Mr. Glaser discussed § 12-53-14, Defendant placed under control of board of pardons-Sponsor of defendant.

Judge Erickstad questioned the negative phrasing of the sentence.

Judge Burdick rephrased his proposed amendment to read: Subject to limitations imposed by law, the court may revoke probation on a suspended sentence or a deferred imposition of sentence only after a hearing at which the defendant shall be present and apprised of the grounds on which action is proposed.

The question being on the amendment of the first sentence of Rule 32(f), the motion carried.

Rule 32(f) as adopted reads:

Rule 32. Sentence and Judgment.

(f) Revocation of Probation. Subject to limitations imposed by law, the court may revoke probation on a suspended sentence or a deferred imposition of sentence only after a hearing at which the defendant shall be present and apprised of the grounds on which such action is proposed.

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Mr. Sand read his draft of Rule 37 as follows:

Rule 37. Taking Appeals.

(a)Appeals to the Supreme Court from District Court and County Court of Increased Jurisdiction.

(1) How an Appeal is Taken; Notice of Appeal. An appeal permitted by law shall be taken within the time specified in Paragraph 2 of this subdivision by serving a copy of a notice of appeal upon the attorney for the adverse party, (or upon the adverse party if no attorney appeared of record for the adverse party), and filing the notice, with proof of service, with the clerk of court from which the appeal is taken. The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken. The clerk of court, within ten days after the filing of the appeal, shall, without charge, certify and transmit to the clerk of the supreme court the notice of appeal, undertaking and certificate of probable cause, if any, and a certified copy of the judgment or order appealed from.

(2) Time for Taking Appeal; An appeal from a judgment or order in the district court or county court of increased jurisdiction shall be taken within thirty days after rendition of the judgment or the making of the order, except that if a timely motion for a new trial or in arrest of judgment has been made within the thirty-day period, an appeal from a judgment of conviction may be taken within thirty days after the order denying the motion.

(b) Appeals to District Court or County Court of Increased Jurisdiction from County Justice Court, Municipal Court or County Court Without Increased Jurisdiction.

(1) How an Appeal is Taken; Notice of Appeal. An appeal permitted by law shall be taken within the time specified in Paragraph 2 of this subdivision by serving a copy of a notice of appeal upon the attorney for the adverse party, (or upon the adverse party if no attorney appeared of record for the adverse party), and filing the notice with proof of service with the court from which the appeal is taken. In counties having a county court of increased jurisdiction the appeal should be taken to such court. The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken. Within five days after an appeal has been filed the court shall transmit to the clerk of the district court a certified copy of its docket and all papers relating to the case as on appeal in a civil action without any charge to the appellant.

(2) Time for Taking Appeal. An appeal to the district court from the county justice court, municipal court, or county court without increased jurisdiction may be taken within thirty days after the rendition of the judgment.

(3) Effect of an Appeal. An appeal to the district court from the county justice court, municipal court, or county court without increased jurisdiction, when perfected, transfers the action to the district court for trial anew regardless of any ruling or decision of the justice.

(c) Appeal from Verdict of Guilty When Imposition of Sentence is Deferred or Suspended.

(1) How Taken; Notice of Appeal. An appeal from a verdict of guilty shall be taken within the time specified in

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in Paragraph 2 of this subdivision by serving a copy of notice of appeal upon the attorney for the adverse party, (or upon the adverse party if no attorney appeared of record for the adverse party), and filing the notice, with proof of service, with the clerk of court or the court from which the appeal is taken. The notice of appeal shall specify the party or parties taking the appeal; shall designate the verdict from which the appeal is taken; and shall name the court to which the appeal is taken. If the appeal is taken to the North Dakota Supreme Court from a verdict of guilty in the district court or county court of increased jurisdiction, the clerk of court, within ten days after the filing of the appeal, shall, without charge, certify and transmit to the clerk of the Supreme Court the notice of appeal, undertaking and certificate of probable cause, if any, and a certified copy of the judgment or order appealed from. If the appeal is to the district court or county court of increased jurisdiction from a county justice court, municipal court, or county court without increased jurisdiction, the court shall, within five days after an appeal has been filed, transmit to the clerk of the district court or the county court of increased jurisdiction a certified copy of its docket and all papers relating to the case as on appeal in a civil action without any charge to the appellant.

(2) Time for Taking Appeal. An appeal from a verdict of guilty shall be taken within thirty days from the official rendition of the verdict, except that if a timely motion for a new trial has been made within the thirty-day period, an appeal may be taken within thirty days after the order denying the motion.

(d) Designation of Parties on Appeal. The party appealing shall be known as the appellant and the adverse party as the respondent, but the title of the action shall not be changed in consequence of the appeal.

Mr. Sand also read the comments accompanying the draft. He then moved the adoption of Rule 37(a)(1) as read. Mr. Persinger seconded the motion.

Mr. Sand said that he thinks that unless we have new appellate rules, we should have something in our criminal rules relating to appellate procedures.

Judge Burdick moved that the first sentence be amended by deleting the parenthetical phrase and inserting in lieu thereof the following words: or upon the party if he has no attorney of record. The question being on Judge Burdick's motion, the motion carried.

Mr. Persinger moved that the last sentence be amended by inserting the words notice of before the word appeal where it first appears. Mr. Glaser seconded the motion. The motion carried.

Judge Burdick moved that the second sentence be amended by subdividing it into a. after the word shall where it first appears, b.after the first semicolon, and c. after the word and, and deleting the second two shalls. Mr. Persinger seconded the motion. The motion carried.

The question being on the adoption of Rule 37(a)(1) as amended, the motion carried. Rule 37(a)(1) as adopted reads:

Rule 37. Taking Appeals.

(a) Appeals to the Supreme Court from District Court and County Court of Increased Jurisdiction.

(1) How an Appeal is Taken; Notice of Appeal. An appeal permitted by law shall be taken within the time specified in Paragraph 2 of this subdivision by serving a copy of a notice of appeal upon the attorney for the adverse party, or upon the party if he has no attorney of record, and filing the notice,

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with proof of service, with the clerk of the court from which the appeal is taken. The notice of appeal shall

a. specify the party or parties taking the appeal;

b. designate the judgment, order, or part thereof appealed from; and

c. name the court to which the appeal is taken.

The clerk of court, within ten days after the filing of the notice of appeal, shall, without charge, certify and transmit to the clerk of the supreme court the notice of appeal, undertaking and certificate of probable cause, if any, and a certified copy of the judgment or order appealed from.

It was agreed that the next meeting of the committee should be held on Thursday and Friday, May 15 and 16.

Judge Muggli mentioned that he takes up certificate of probable cause in the next rule.

Mr. Sand moved the adoption of Rule 37(a)(2) as read. He mentioned that the present time for taking appeals is contained in § 29-08-08. He also mentioned §§ 29-25-01, "Motion in arrest of judgment" defined and 29-28-06, From what defendant may appeal.

The question being on the adoption of Rule 37(a)(2) as read, the motion carried. Discussion followed, and there were several expressions that the words or in arrest of judgment should be deleted from Rule 37(a)(2).

Judge Smith moved that the action by which Rule 37(a)(2) was adopted be reconsidered. Mr. Glaser seconded the motion. The motion carried.

The meeting adjourned at 1:12 p.m.

Respectfully submitted:

Rebecca Quanrud, Secretary