Joint Procedure Committee Meeting

Scheduled on Monday, April 28, 1975 @ 10:45 AM

MINUTES OF MEETING

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

April 28, 1975

The meeting was called to order at 9:45 a.m. by Justice Paul Sand, acting chairman.

ATTENDANCE

Members Present:

Honorable Paul Sand, acting chairman
Honorable Robert Vogel
Honorable Eugene A. Burdick
Honorable Wm. S. Murray
Honorable Harry Pearce
Mr. John Graham
Mr. Kent Higgins

Staff Present:

Jon Nelson, Law Clerk
Linda Ohlsen, Secretary

Judge Murray nominated Justice Sand to be chairman of the Joint Committee of the Judicial Council and the State Bar Association on Rules of Criminal Procedure. The motion was seconded by Judge Burdick and CARRIED unanimously.

Judge Pearce MOVED to dispense with the reading of the minutes. The following are noted as corrections to the minutes of September 27, 1974:

Page 1 last line under INSTRUCTIONS - RULE 30 should read "the Uniform Rules of Criminal Procedure cover it by Rule 523 and Rule 534".

Page 2 first sentence of last paragraph should read as follows: "Mr. Higgins would be very reluctant to see a corrections department under the attorney general or a defender general."

Page 4 under DISCOVERY AND INSPECTION - RULE 16 the first sentence should read: "In reporting to the committee on Rule 16, Mr. Higgins stated that Rule 16(h)(1) as originally proposed provided for the provision to the defense of a statement by a prosecution witness after the witness had testified in the trial of a case."

Judge Burdick MOVED that the minutes be approved as corrected, seconded by Judge Murray. Motion CARRIED.

REPORT ON DIFFERENCES BETWEEN THE N.D.R.CRIM.P. AND THE ABA STANDARDS

Justice Sand reported that Professor Kraft was unable to attend this meeting to discuss the differences between the

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N.D.R.Crim.P. and the ABA Standards. Mr. Higgins moved that the committee defer action in regard to this report until the next meeting. Motion seconded and CARRIED.

REVOCATION OF PROBATION WHERE THE COURT RETAINS JURISDICTION UNDER THE LAW - RULE 32(f)

Relative to Rule 32(f) N.D.R.Crim.P. are Rule 344 (Detention Hearing), Rule 641 (Revocation of Probation) of the Uniform Rules of Criminal Procedure (1974), and ABA Rule 5.2b Probation, and S.B. 2332. Mr. Higgins MOVED that the committee consider a modification of Rule 32(f) to provide for arrest without court order and also to provide for a detention hearing where there may be a delay in bringing the probationer before the court for a hearing on the merits and to make sure that he is informed of the things that are constitutionally required as to probationer's right to counsel, time for appearance, right to detention hearing etc. Motion seconded by Judge Pearce. Motion CARRIED. Mr. Higgins volunteered to prepare a draft of Rule 32(f).

INSTRUCTIONS - RULE 30

Rule 523 and 534, Uniform Rules of Criminal Procedure (1974) and ABA Standard 4.6(c) also refer to instructions.

Judge Pearce MOVED that a tentative draft be prepared for Rule 30 using the language in Rule 523 of the Uniform Rules of Criminal Procedure and that the draft be sent to each member of the committee at least ten days before the next meeting date for the consideration of each member and that Rule 30 be placed upon the agenda for the next meeting. This motion seconded by Judge Burdick and CARRIED. Judge Pearce and Jon Nelson will prepare a tentative draft of this rule and submit it to the members of the committee.

SENATE BILL 2332 THE PROBATIONER

Mr. Graham reported to the committee the effect of the passage of Senate Bill 2332 on the Criminal Rules. S.B. 2332 gives jurisdiction over a person who is put on probation following a violation to the court and deals with 12-53-10 in that when a person has violated the terms of his probation he may be arrested, and provides that any parole officer or peace officer may arrest such person without a warrant or other process and convey him to the penitentiary. This is a change from current law which states that a parole officer or any peace officer designated by the parole board may arrest such person without a warrant or other process and convey him to the penitentiary. The committee should take this change into account either by way of recommending supercession of 12-53-10 or by way of amending Rule 32(f).

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RIGHT TO AND ASSIGNMENT OF COUNSEL - RULE 44

Jon Nelson reported that in his opinion State v. Heasley, 180 NW2d 242, was improperly superseded in the matter of right to counsel for indigent misdemeanants not covered by Argersinger. This is set by statute and cannot be removed by rule (29-07-01.1, N.D.C.C.) because it is a substantive right as shown by the Heasley case.

Jon also brought up the fact that he thought that judges should advise indigents before the appointment of appointed counsel, that in the event they (the indigents) are acquitted or the charges dismissed, they would not have to reimburse the county for attorney's fees. It was the consensus of the committee that this particular matter was one for the Legislature.

MOTION FOR JUDGMENT OF ACQUITTAL - RULE 29

The Uniform Rules of Criminal Procedure (1974) break up pretrial (Rule 481) and post-trial motions for acquittal (Rule 551), whereas Rule 29 N.D.R.Crim.P. combines pretrial and post-trial motions in the same rule. Judge Pearce MOVED to amend Rule 29 considering the language in subdivision (b) and (c) of Rule 29 of the Federal Rules of Criminal Procedure (as of May 15, 1973). The motion was seconded by Mr. Graham and CARRIED. Judge Pearce then amended his motion to include a second proposal, that of Rules 522 and 551 of the Uniform Rules of Criminal Procedure (1974) to be considered along with the Federal Rules. Motion seconded by Judge Burdick and CARRIED.

It was MOVED by Judge Burdick that the committee place on the agenda for the next meeting for consideration Rule 481 of the Uniform Rules of Criminal Procedure (1974) on Motions for Judgment of Acquittal Prior to Trial. Motion seconded by Judge Vogel and CARRIED.

DISCOVERY AND INSPECTION - RULE 16

Justice Vogel suggested study of the entire group of rules pertaining to discovery and inspection by a subcommittee. Justice Sand appointed Judge Burdick to prepare the revisions to Rule 16 and make a submission of the draft to the committee members at a future meeting.

BETTER TIME RULE FOR DISPOSITION

A report was presented by Jon Nelson of his study of other states in regard to time rule. In referring to 18 USC 3161, the Federal Speedy Trial Act of 1974 provides for setting of criminal trials at a certain date, trial within sixty (60) days of arraignment, etc. Presently, Federal Criminal Rule 50b provides for a prompt disposition of criminal cases in that U.S. District Courts must have a time limit in which criminal cases must be disposed of.

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He went on to say that North Dakota Criminal Rule 48(b) regards unnecessary delays and the last North Dakota case involving unnecessary delay was State v. Brodell, 220 NW2d (1974). The case refers to normal and reasonable time limitations. The State of North Dakota does not have specific limitations on criminal cases. Jon also reported on several states and their time limitations in regard to criminal cases and also said that many states are adopting such limitations.

Judge Pearce MOVED that at the next session of the committee, Rule 722 of the Uniform Rules of Criminal Procedure (1974) be placed on the agenda to consider a new separate rule for disposition. Motion seconded by Judge Murray and CARRIED.

DISCREPANCY BETWEEN RULE 37 AND SECTION 40-18-19 N.D.C.C. and 33-12-34 N.D.C.C.

The question before the committee is: do we want to be able to allow an appeal from the municipal court orally? This would require a change in the language of the rule. Judge Burdick MOVED that we reconsider Rule 37 for the purpose of drafting the provision of a notice of appeal stated orally in open court before a municipal judge. Motion seconded by Judge Murray. Mr. Graham suggested an amendment to the motion, that being, to include, when the judge is without counsel in municipal or county justice court. The amendment was approved and the motion CARRIED.

Judge Pearce volunteered to draft necessary amendments to Rule 37 to permit appeals from municipal courts and county justice courts by stating in open court the desire to appeal and not requiring the filing of a written notice of appeal when the judge is without counsel in municipal or county justice court. This item will be placed upon the agenda of the next meeting.

EXPANDING THE CRIMINAL RULES COMMITTEE

Chief Justice Ralph J. Erickstad visited with the committee members regarding funding and expansion of the present Criminal Rules Committee. Attorney General Allen Olson, chairman of the Law Enforcement Council, and Mr. Robert Holte, director of the Law Enforcement Council, suggested that the committee set up a project, that being the study of the Rules of Evidence looking toward the ultimate promulgation of Rules of Evidence, and a study of Appellate Rules and Criminal Procedure Rules.

Judge Burdick MOVED that the chairman appoint a subcommittee for the purposes of making application to the LEAA for funding for the study and implementation of the work product from that study of the Uniform Rules of Evidence insofar as they relate to criminal rules, the uniform rules of criminal procedure, the study of the Federal Rules of Evidence insofar as they relate to criminal rules, the continuing review of Rules of Criminal Procedure, and also the Rules of Appellate Procedure insofar as they relate to criminal rules,

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and that the State Court Administrator's staff assist in preparing the LEC application. Motion seconded by Judge Murray. Motion CARRIED.

Mr. Calvin Rolfson, State Court Administrator, explained the methods of funding. Mr. Rolfson related three alternatives the committee could choose from: Alternative #1 concerns the employment of full time permanent staff persons by the North Dakota Supreme Court to continuously staff the Procedural Rules Committee, during and beyond the adoption of Rules of Evidence. Alternative #2 would be to view the ultimate adoption of the Rules of Evidence through the work of the Procedural Rules Committee as a free standing project and contract for staff services or consulting services only for the duration of the project. At the conclusion of the project, the staff services would cease. Alternative #3 would be to employ full time staff persons whose employment will cease upon completion of the project and adoption of any rules.

To put this program into effect by July 1, Mr. Rolfson stated that it will be necessary that an application be drafted and submitted to the Law Enforcement Council no later than May 15.

Judge Pearce MOVED that the committee adopt alternative #2 and have the committee undertake the project. Motion seconded by Judge Burdick. Motion CARRIED. Judge Sand appointed a subcommittee to assist in preparing the grant including Mr. Graham, Judge Pearce, Judge Vogel, Judge Sand.

Judge Burdick MOVED that the chairman designate a committee to conduct interviews and present findings to the committee conditioned on the granting of funds for staff personnel. Motion seconded by John Graham. Motion CARRIED.

NEW RELEVANT LEGISLATION

Mr. Graham gave a synopsis of legislative bills which affect criminal rules.

Senate Bill 2332 pertains to suspension of sentences and how to handle the probationer.

Senate Bill 2039 includes large criminal statute revision. It amends several sections in title 29.

Senate Bill 2040 provides for classifications of offenses, an organizational fine schedule, defenses to criminal charges, provides penalties.

Senate Bill 2353 adds a new subdivision relating to sentencing alternatives.

Senate Bill 2220 requires a person on probation to perform restoration or do other assigned work.

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House Bill 1361 sets the fees of expert witnesses within the discretion of the trial court.

House Bill 1194 provides for a uniform complaint and summons to be used in cases involving violations of the game, fish, predator, and boating regulations.

House Bill 1165 relates to criminal sentences and the imposition of costs.

House Bill 1595 relates to the admissibility of certain evidence regarding the character of complaining witnesses in criminal prosecutions for gross sexual imposition or sexual imposition, and to certain procedures to be followed in such proceedings.

House Bill 1043 relates to controls on dissemination of obscene materials and provides penalties.

NEXT MEETING DATE

Judge Burdick moved that the chairman be authorized to designate the time and place of the next meeting in the light of developments with respect to applications of individuals for staff personnel in expanding the rules committee and the present agenda, but that a tentative time and date be Thursday, July 10, 1975, at 1:30 p.m. Motion seconded by Judge Murray. Motion CARRIED.

Discussion of Rule 15 and Rule 7(f) was postponed until the next meeting.

Judge Vogel MOVED for adjournment. Motion CARRIED.

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Secretary