Joint Procedure Committee Meeting

Scheduled on Thursday, May 11, 1972 @ 3:00 PM

MINUTES OF MEETING

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

May 11-12, 1972

Thursday, May 11, 2:00 p.m.

ATTENDANCE

Members present:

Hon. Ralph J. Erickstad, Chairman
Hon. Gerald G. Glaser
Hon. Roy A. Ilvedson, Acting Chairman
Hon. James Morris
Hon. William S. Murray (arrived 3:45)
Mr. Paul M. Sand
Mr. John G. Shaft

Members absent:

Hon. Eugene A. Burdick
Mr. John A. Graham
Hon. Norbert J. Muggli
Hon. Harry J. Pearce
Mr. Roger Persinger
Hon. Kirk Smith
Mr. Robert L. Vogel

Staff present:

Mr. Charles M. Travis, Criminal Code Reviser
Miss Donna Fischer, Secretary

Judge Erickstad, Chairman, welcomed those present and referred to the Minutes of March 23-24-25, 1972.

MINUTES OF PREVIOUS MEETING

The first item on the agenda was the reading of the minutes. It was MOVED by Paul Sand that the reading of the Minutes be dispensed with. Seconded by Judge Glaser. No discussion and the motion CARRIED.

Judge Erickstad referred to page 6 of the Minutes, to the paragraph containing comments regarding Section 29-11-22. A comment had been attributed to him which was at best difficult to understand. He therefore proposed the following substitute language;

"Judge Erickstad suggested that the Committee's action superseding statutes such as 29-11-22 is not intended to mean that what is permissible now under such statutes is no longer permissible. In other words, that Rule 7 is construed to permit what that statute and other statutes permit or that their supersession does not return us to the technicalities of common law pleading."

Mr. Sand suggested the following amendment to Judge Erickstad's substitute language;

"Judge Erickstad suggested that the Committee's action in superseding statutes such as 29-11-22 is not intended to mean that (((what is permissible now under))) which was not required by such statutes (((is no longer permissible)) is now required. (((In other words, that))) Rule 7 is construed to permit what that statute and other statutes permit (((or))) and that their supersession does not (((return us to))) revive the technicalities of common law pleading."

Judge Erickstad agreed with Mr. Sand's amendment and noted that the new language expresses his thoughts at the previous meeting.

Rule 5.1--Explanatory Note

Judge Ilvedson noted an inconsistency in the Explanatory Note to Rule 5.1, on page 2, paragraph 5, which reads as follows;

"Subdivision (b) also deals with the legal effect of a discharge of a defendant at a preliminary examination. The provision of subdivision (b) which permits the government or the prosecution to issue a new complaint and start procedure anew is supported by the following Federal cases: Collins v. Loisel, 262 U.S. 426 (1923) and Morse v. United States, 267 U.S. 80 (1925); and the following State decision: People v. Dillon, 197 N.Y. 254, 90 N.E. 820 (1910)."


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It was noted that this language was an explanation of material that had previously been included in the Rule but had since been deleted; this explanatory language should also have been deleted. Judge Morris MOVED to delete the above paragraph from the Explanatory Note. Seconded by Judge Glaser. No discussion, vote was taken, and the motion CARRIED.

No further additions or corrections, and the Chairman declared the Minutes of March 23-24-25 approved as submitted, with the above changes.

Judge Erickstad turned the Chair over to Judge Ilvedson, to preside as Acting Chairman for the remainder of the afternoon.

RULE 11

The first Rule taken under consideration by the Committee was Rule 11, Pleas, proposed by Judge Smith. It was noted in preliminary comments by the staff that Rule 11 is presented to the Committee as previously adopted in November of 1971 except for substitution of the words "prosecuting attorney" in place of "attorney for the government" and "attorney for the prosecution", and it was noted that Judge Smith, as author (not in attendance), was satisfied with the Rule in this state. The Rule was read for the Committee's benefit by Judge Glaser.

Judge Erickstad called the Committee's attention to subsection (4) of Rule 11(c), Advice to Defendant, which reads as follows; "That if he pleads guilty or nolo contendere there will not be a further trial of any kind, so that by pleading guilty he waives the right to a trial by jury or otherwise and the right to be confronted with the witnesses against him." He said that the language suggests that the defendant waives his right to trial by jury only when he pleads guilty and that a plea of nolo contendere should also waive the right to trial by jury. On that basis, Judge Erickstad MOVED to include nolo contendere in the language to read, "so that by pleading guilty or nolo contendere he waives..." Motion was seconded by Judge Glaser.

In discussion, John Shaft stated that this is contrary to his understanding of the nolo contendere plea. He said that the elimination of reference to nolo contendere under this provision was intentional. Judge Glaser noted that by pleading nolo contendere, the defendant is not admitting his guilt and therefore guilt must be proved.

Judge Erickstad WITHDREW his motion.

Acting Chairman Ilvedson noted that the Advisory Committee Note in the April, 1971 Preliminary Draft of Proposed Amendments to the Federal Rules, page 8, states, "Subdivisions (c)(3) and (4) specify the constitutional rights that the defendant waives by a plea of guilty or nolo contendere", and that, "Subdivision (c)(4) is intended to require that a defendant be advised of his right to have his guilt proved beyond a reasonable doubt and the right to confront his accusers", noting Boykin v. Alabama, 395 U.S. 238, 243 (1969). The Note adds, "The draft takes the position that the former is best explained by indicating that the right to trial is waived. Specifying that there will be no future trial of any kind makes this fact clear to those defendants who, though knowing they have waived trial by jury, are under the mistaken impression that some kind of trial will follow."

Judge Glaser, commenting on the plea of nolo contendere, said that he did not care for the concept of the plea but that he voted to include the provision in the Rule because of the drawback in the applicability of the guilty plea to civil cases. He saw the present practice of entry of a guilty plea without defense for purpose of civil protection as a waste of time and effort.

Judge Glaser then MOVED the adoption of Rule 11. Seconded by John Shaft.

In the discussion that followed, Judge Glaser raised a question concerning the practice of addressing the defendant in open court and noted that under present practice, in misdemeanor cases the defendant can be represented by his attorney. He noted that at the time the rule was first adopted, it was his understanding that the defendant in misdemeanor cases would be permitted to enter an appearance by attorney. Upon reassurance of that provision, Judge Glaser noted that he would have no objection to the Rule and would continue with his motion to adopt.


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The issue raised by including such language, to the effect that a plea may be entered by a defendant's attorney, is whether the court could be certain that the attorney would advise the defendant of the provisions under subsection (c) Mr. Sand cited Section 29-14-21 (Plea of guilty put in only by defendant--Exception.), which states, "In no case shall a plea of guilty be put in by anyone except the defendant himself, in open court, unless the defendant is a corporation, in which case it may be put in by counsel." Mr. Shaft cited Section 33-12-23 (Defendant present.), which states that, "The defendant in a criminal action in a justice court must be present personally during the progress of the trial." Mr. Sand noted that Section 29-13-02 (Defendant must be present if offense felony--Counsel may appear on misdemeanor.) is superseded. That statute reads, "If an information or indictment is for a felony, the defendant must be personally present when arraigned thereon, but if for a misdemeanor only, his personal appearance is unnecessary and he may appear upon the arraignment by counsel."

Judge Ilvedson suggested inserting a new paragraph following the provisions of subsection (c) as follows: "The above advice to the defendant shall not apply to misdemeanor cases where a lawyer appears on behalf of a defendant and enters a plea of guilty or nolo contendere." Judge Erickstad noted that the problem with that provision is that it is not restricted to felony cases. He said that the wish of the Committee is that such information or advice be given to the defendant in both misdemeanor and felony cases, but that it is not necessary that the attorney entering the plea for the defendant be so advised. Judge Ilvedson suggested additional language to the effect that the above advice to the defendant shall not apply to misdemeanor cases where a lawyer appears in behalf of the defendant and enters a plea. This language, he said, would rectify the problem pointed out by Judge Erickstad.

Paul Sand cited Section 29-14-21 (Plea of guilty put in only by defendant--Exception.), which states "In no case shall a plea of guilty be put in by anyone except the defendant himself, in open court, unless the defendant is a corporation, in which case it may be put in by counsel." He said that the issue here is that the North Dakota statutes provide that a plea may be entered by defendant's counsel in misdemeanor cases, but that there is no provision for advising the defendant of certain rights--this practice has been accomplished as a matter of course.

Judge Glaser MOVED to insert a new subdivision to Rule 11, to be subdivision (h), as follows;

"In no case shall a plea of guilty be put in by anyone except the defendant himself in open court unless the defendant is a corporation or the offense charged is not a felony, in which case it may be put in by counsel."

Motion was second by Paul Sand.

The only discussion was a notation that subdivision (h) is a modification of Sections 29-14-21 and 29-13-02, NDCC. Vote was taken and the motion is ADOPTED. It is the wish of the Committee that the above-listed note should be included as an addition to the Explanatory Note to Rule 11.

Acting Chairman Ilvedson noted that there was a motion and second to adopt Rule 11. The question was called to adopt Rule 11, as amended. The vote was unanimous and the motion CARRIED. (see attached)

Rule 11--Explanatory Note

Mr. Shaft read the Explanatory Note to Rule 11 (dated 4/24/72), which was distributed at the meeting. A discussion of the various statutes affected by Rule 11 followed.

The RECORD notes that Judge Murray arrived.

Statutes Superseded:

29-13-02 no objection

29-14-01 no objection

Judge Ilvedson referred to Section 29-26-04 (Defendant's presence--Felony or misdemeanor.), which states,"For the purpose of judgment, if the conviction is for a felony, the defendant must be present personally, and if for a misdemeanor, judgment may be pronounced in his absence." He said that the statute was a repetition of subdivision (h), but would not necessarily require supersession.


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Statutes Superseded:

29-14-02 no objection

Mr. Travis suggested that Sections 29-14-03 (Certain pleas abolished-- Motion to quash substituted.) and 29-14-04 (Grounds for motion to quash.) be included among the statutes listed as superseded. He referred to a discussion at the previous meeting, during which the Committee agreed to supersede the various Sections by all the Rules under which they are applicable.

Mr. Shaft MOVED that Section 29-14-03 be listed as superseded by Rule 11. It was pointed out that the subject matter of these two statutes would be more properly situated under Rule 12, Pleadings and Motions Before Trial; Defenses and Objections. Mr. Shaft WITHDREW his motion.

29-14-14 no objection

29-14-16 In reference to Section 29-14-16 (Offenses to which defendant may plead guilty.), Judge Ilvedson asked whether the court may enter a plea of guilty under the Rule as it reads. It appeared to be the consensus of the Committee that this is inherent in the power of the Court under Rule 11. Section 29-14-16 is superseded without objection.

29-14-17 no objection

29-14-18 Section 29-14-18 (Plea of guilty--Determination of punishment.) should be considered in conjunction with Rule 32(a)(1), Imposition of Sentence. Judge Erickstad indicated that Rule 32 is much broader than the statute. There was no objection, and 29-14-18 is superseded.

29-14-19 A discussion ensued over the meaning of this statute (Plea to be oral--Form of plea.). It was pointed out that Rule 12 abolishes the several forms of pleas listed within the Section. Judge Ilvedson referred to the January 1470 Preliminary Draft of Proposed Amendments to the Federal Rules, page 26. He noted that motions to dismiss appear to be very broad. Judge Glaser indicated that Sections 29-14-19 and 29-14-24, referring to former jeopardy, should both be superseded by Rule 11. He referred to the footnote in the Code, State v. Taylor. "Former jeopardy. Plea of former Jeopardy must comply with the requirements of this statute. State v. Taylor, 70 N.D. 201, 293 N.W. 219."

Judge Erickstad referred to the U.S. Code Annotated, Volume 18, to determine the effect of a plea of former jeopardy under Rule 11. Considerable discussion ensued. Judge Glaser suggested that the real problem was whether or not notice of reliance upon a defense should be given. It was suggested that the question of notice should be referred to Rule 12.

There was no further discussion and no objection to superseding 29-14-19.

The RECORD notes that Judge Morris left the meeting.

Mr. Travis suggested that Section 29-14-15 (Pleas classified.), which was included under Statutes Considered, should also be superseded.

Mr. Sand MOVED Section 29-14-15 be superseded. Seconded by Judge Glaser and the motion CARRIED.

29-14-20 no objection

29-14-21 no objection

It was noted that this section was reworded and contained in subdivision (h) of Rule 11.

29-14-22 no objection

The Committee continued review of statutes from Title 29 (Judicial Procedure, Criminal) affected by Rule 11.


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Statutes Considered:

29-14-23 Mr. Shaft MOVED to have Section 29-14-23 (Plea of not guilty puts in issue every material allegation.) listed as superseded.Seconded by Paul Sand. Motion CARRIED.

29-14-24 Section 29-14-24 (Evidence under plea.) was considered in conjunction with the previous discussion on Section 29-14-15. Judge Glaser MOVED to have Section 29-14-24 listed as superseded. This was seconded by Mr. Sand and the motion CARRIED.

29-14-26 Mr. Sand MOVED that Section 29-14-26 (Acquittal on merits.) be superseded. Mr. Shaft seconded and the motion CARRIED.

29-14-27 Section 29-14-27 (Former acquittal or conviction--Once in jeopardy.) was considered and the Committee took notice of the cases cited; State v. Panchuk, 53 N.D. 669, 207 NW 991, and State v. Barnes, 29 N.D. 164, 150 NW 557.

Judge Erickstad cited Section 29-22-35 (When conviction or acquittal a bar.), as follows: "If the defendant has been convicted or acquitted upon an information or indictment for an offense consisting of different degrees, the conviction or acquittal is a bar to another information or indictment for the offense charged or for any lower degree of that offense or for an offense necessarily included therein."

Paul Sand MOVED that Section 29-14-27 be listed as Superseded.Seconded by Judge Erickstad. The motion CARRIED.

Judge Ilvedson noted Section 29-22-23 (Conviction of attempt or of included offense.), which reads, "Upon an information or indictment for any offense, the jurors may convict the defendant of an attempt to commit such offense if such attempt is an offense, or they may convict him of any offense which is necessarily included in the offense charged."

Judge Erickstad suggested that the staff make a note that special consideration be given at a later date to Sections 29-22-23 and 29-22-35.

The Committee considered statutes under Title 33, NDCC, affected by Rule 11.

Statutes Superseded:

33-12-17 no objection

33-12-18 Mr. Sand stated that he felt Section 33-12-18 (Plea of guilty--Duty of justice.) had merit.

Judge Ilvedson, as Acting Chairman, called for a disposition of the statute, noting that it is a matter of the inherent power of the court and that there is no formal procedural need for it. He said that if the Committee is in doubt with a statute, the wisest thing would be to leave that statute.

Paul Sand said that he was not anxious to retain the statute but suggested that the lower courts should be alerted to situations referring to in the statute.

Acting Chairman Ilvedson noted that the statute would remain superseded if there were no objection.

No objection; Section 33-12-18 remains as superseded.

Acting Chairman Ilvedson suggested adopting the Explanatory Note in its entirety.

Judge Erickstad suggested that the second sentence of paragraph 2 of the Explanatory Note, which states "The provision that only the defendant may enter a plea of guilty, unless the defendant is a corporation, in which case the plea may be entered by counsel, follows existing law," should be eliminated since this language is now adequately covered under subdivision (h).

Acting Chairman Ilvedson suggested that on page 2, paragraph 1, the last two sentences should be deleted as redundant and misleading. They read;

"Subdivision (c)(3) is intended to require that the judge inform the defendant and determine that he understands that he waives his Fifth Amendment rights. Subdivision (c)(4) is intended to require that a defendant be advised of his right to have his guilt proved beyond a reasonable doubt and the right to confront his accusers.

The Committee agreed to delete the two sentences.


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Vote was called on the motion to adopt the complete Explanatory Note to Rule 11. The motion CARRIED by unanimous vote.

The Acting Chairman RECESSED the meeting; scheduled to reconvene at 9:00 Friday morning.

Friday, May 12, 9:30 a.m.

ATTENDANCE

Members present:

Hon. Ralph J. Erickstad, Chairman
Hon. Gerald G. Glaser, Acting Chairman
Hon. Roy A. Ilvedson
Hon. James Morris (arrived later)
Hon. William S. Murray
Mr. Paul M. Sand
Mr. John G. Shaft

Members absent:

Hon. Eugene A. Burdick
Mr. John A. Graham
Hon. Norbert J. Muggli
Hon. Harry J. Pearce
Mr. Roger Persinger
Hon. Kirk Smith
Mr. Robert L. Vogel

Staff present:

Mr. Charles M. Travis, Criminal Code Reviser
Miss Donna Fischer, Secretary

Judge Glaser was appointed to the Chair.

FINANCIAL REPORT

The staff presented a financial statement, as shown below. (Through February 1972)

Paid Out Balance

Salaries $13,872.62 $33,647.38

Fees and Services $910.19 $ 3,904.81

Supplies $ 239.50 $ 140.50

Equipment $ 4,439.57 $ 660.43

$ 5,825.00 (FY 1971-72)

+23,750.00 (FY 1972-73)

$29,575.00 (Total)

+ 2,957.00 (fringe benefits @ 10%)

$32,532.00 Total Projected Salaries

$33,647.38 (balance)

-32,532.00 (projected salary)

$ 1,115.38


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The financial statement included fees and services, supplies, and equipment, and indicated salaries paid out to-date and projected salaries for the project through July of 1973, showing a remainder of $1,115.38. Mr. Travis noted that, as stipulated in his letter of acceptance for the position and as based on existence of funds, he would like to be considered for a raise in salary from $9,000 to $10,000 for the 1972-73 fiscal year if the Committee is satisfied with the work he has performed.

Mr. Travis also noted that the monies that were not spent for a second code reviser's salary for the first year was used in a number of ways; first, some of that money was allocated to travel expenses, some of the money was applied to a full-time rather than a part-time secretary, and some was used for part-time help in the form of an intern during the year as well as during the summer.

Judge Murray commented that he was in favor of the increase and he felt that the level of performance was excellent. Paul Sand commented that the reason for granting an increase should not be the fact that money is available, but rather that the performance has been such as to warrant the increase. He added that if the performance warrants, then he would very much favor the increase.

Judge Erickstad suggested that the request be referred to the Supervisory Committee, chaired by Mr. Sand and including Mr. Persinger.

Judge Ilvedson MOVED to refer the matter to the subcommittee for consideration and to be reported back at the next meeting, on June 26. Motion was seconded by Judge Murray. Vote was taken and the motion CARRIED unanimously.

SCHEDULE OF FUTURE MEETINGS

The Committee considered dates for future meetings. It was noted that the next meeting will be Monday the 26th and Tuesday the 27th of June, and it was finally decided that the following meeting would be set for Thurs-Fri-Sat, August 10-11-12.

RULE 12

The Committee next took up consideration of Rule 12, Pleadings and Motions Before Trial; Defenses and Objections.

Under 12(a) Pleadings and Motions, a question was raised concerning under lineation of the words "nolo contendere". It was explained that the underlineation is in place of italics. The Committee decided that there should be no underlineation because it is misleading and confusing.

Judge Erickstad MOVED to delete the underlineation of "nolo contendere" in Rule 12(a). Motion was AMENDED by Judge Ilvedson to include that there be no underlining of this sort anywhere in the Rules. The motion was seconded by Paul Sand. No further discussion, and the motion CARRIED.

Mr. Shaft then read Rule 12. He noted that no changes are proposed for subdivision (a).

Mr. Sand MOVED to insert a comma after "district court" in line 2 and to delete the word "and", in order to be more grammatically correct. Second by Judge Ilvedson. No discussion; vote was unanimous and the motion CARRIED.

Judge Erickstad noted that the provisions of Rule 12 would require that the statutes for motions to quash be abolished and subdivision (b) would then govern motions made prior to trial. Therefore, under the proposed Rule, the technicalities that now exist as to when an individual must move to quash or when he may move for an arrest of judgment are no longer applicable.

Judge Ilvedson MOVED to adopt subdivision (a) of Rule 12 with the grammatical change in line 2 and with the elimination of the underlineation under "nolo contendere". Motion was seconded by Paul Sand and CARRIED.

The Committee undertook consideration of subdivision (b) Pretrial Motions. Mr. Shaft, for the Committee's benefit, discussed the changes that were recommended under the Proposed Amendments to the Federal Rules from the language as previously adopted by the Committee.


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First, the heading was changed from "The Motion Raising Defenses and Objections" to "Pretrial-Motions". This is intended for clarification. The subheading "Defenses and Objections Which May be Raised" was eliminated, and added was, "The following must be raised prior to trial:". The Advisory Committee Note to the Proposed Amendments to the Federal Rules, January, 1970, indicates that subsections (1) and (2) are restatements of the rule as adopted. Subdivisions (3), (4), and (5) are additions, that is, motion for suppression, request for discovery, and request for severance. He noted, further, that they must all be made before trial with the exception of subdivision (f), which provides that "the court for cause shown may grant relief from the waiver."

Mr. Shaft MOVED the adoption of subdivision (b) of Rule 12.Seconded by Paul Sand.

The Acting Chairman called for discussion. Judge Ilvedson questioned why the words "or request" were not included in line 1, as in the proposed Federal Rules, to read "Any defense, objection, or request..." It was noted that this language was similar to the language as previously adopted.

Since there was no apparent reason not to include the language, Mr. Shaft AMENDED his motion to include the words "or request" in line 1 of subdivision (b). Mr. Sand, who seconded the original motion, consented to the amendment. Question was called and the motion CARRIED to adopt subdivision (b).

The Committee considered subdivision (c), Motion Date, next. It was noted by Mr. Shaft that subdivision (c) is entirely new wording. Mr. Shaft read from the Advisory Committee Note of the Proposed Amendments to the Federal Rules (January 1970), on page 31, as follows;

"Subdivision (c) provides that a time for the making of motions shall be fixed at the time of the arraignment or as soon thereafter as practicable by court rule or direction of a judge. The rule leaves to the individual judge whether the motions may be oral or written. This and other amendments to rule 12 are designed to make possible and to encourage the making of motions prior to trial, whenever possible, and in a single hearing rather than in a series of hearings. This is the recommendation of the American Bar Association's Committee on Standards Relating to Discovery and Procedure Before Trial (1969)***. The omnibus hearing is also being used, on an experimental basis, in several other federal district courts. Although the Advisory Committee is of the view that it would be premature to write the omnibus hearing procedure into the rules, it is of the view that the single pretrial hearing should be made possible and its use encouraged by the rules.

"There is a similar trend in state practice. See, e.g., State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 N.W. 2d 753 19651, State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 141 N.W. 2d 3 (1965).

"The rule provides that the motion date be set at 'the arraignment or as soon thereafter as practicable.' This is the practice in some federal courts including those using the omnibus hearing. (In order to obtain the advantage of the omnibus hearing, counsel routinely plead not guilty at the initial arraignment on the information or indictment and then may indicate a desire to change the plea to guilty following the omnibus hearing. This practice builds a more adequate record in guilty plea cases.) The rule further provides that the date may be set before the arraignment if local rules of court so provide."

Judge Glaser raised a question concerning the provision, noting that under present practice certain types of motions or objections are raised upon entry of a plea. In other words, if one is arraigned and enters a plea of not guilty, the defendant waives certain types of objections. He noted that the language in subdivision (c) states "At the time of the arraignment or as soon thereafter as practicable, the court may set a time for making pretrial motions", and he questioned whether this presented an inconsistency.

Mr. Sand noted that Section 29-14-12 (Failure to move to quash--Effect--Exception.) states, "If the defendant does not move to quash the indictment or information before he pleads thereto, he shall be taken to have waived all objections which are grounds for a motion to quash except those which also are grounds for a motion in arrest of judgment."


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Mr. Shaft MOVED the adoption of subdivision (c) of Rule 12.Seconded by Judge Ilvedson. No further discussion; vote was taken and the motion CARRIED.

Subdivision (d), Notice by the Prosecution of the Intention to Use Evidence, was considered next. This subdivision is new language, presented in two sections: (1) At the Discretion of the Prosecution, and (2) At the Request of the Defendant. Mr. Shaft read from the Advisory Committee Note to the Proposed Amendments of the Federal Rules (January 1970), as follows;

"Subdivision (d) provides a mechanism for insuring that a defendant knows of the government's intention to use evidence to which the defendant may want to object. On some occasions the resolution of the admissibility issue prior to trial may be advantageous to the government. In these situations the attorney for the government can make effective defendant's obligation to make his motion to suppress prior to trial by giving defendant notice of the government's intention to use certain evidence.***

"In cases in which defendant wishes to know what types of evidence the government intends to use so that he can make his motion to suppress prior to trial, he can request the government to give notice if it intends to use specified evidence to which the defendant is entitled to discovery under rule 16. Although the defendant is already entitled to discovery of such evidence prior to trial under proposed rule 16, proposed rule 12 makes it possible for him to avoid the necessity of moving to suppress evidence which the government does not intend to use. No sanction is provided for the government's failure to comply with the court's order because the committee believes that attorneys for the government will in fact comply and that judges have ways of insuring compliance. An automatic exclusion of such evidence, particularly where the failure to give notice was not deliberate, seems to create too heavy a burden upon the exclusionary rule of evidence, especially when defendant has opportunity for broad discovery under proposed rule 16.***

"Pretrial notice by the prosecution of its intention to use evidence which may be subject to a motion to suppress is increasingly being encouraged in state practice. See, e.g. State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 264, 133 N.W. 2d 753, 763 (1965). "See also State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 553-556, 141 N.W. 2d 3, 13-15 (1965).

Judge Glaser, in reference to the provision of subsection (d)(2) regarding the defendants request, questioned to whom the defendant makes a request--is it to the court, the prosecutor--and what is the effect if there is a failure to respond to the request. He also questioned whether the evidence would be excluded upon willful failure to comply.

John Shaft read from the Explanatory Note as proposed, page 3, ¶3; "A failure to comply with the duty of giving notice could lead to the suppression of evidence. Nevertheless, the standards make it explicit that the rule is intended to be a matter of procedure which need not under appropriate circumstances automatically dictate that evidence otherwise admissible be suppressed."

Judge Ilvedson referred to the Federal Advisory Committee Note which states that automatic exclusion places too heavy a burden on the exclusionary rule, especially with the broad discovery that is provided for.

John Shaft MOVED the adoption of subdivision (d) of Rule 12.Motion was seconded and CARRIED.

The Committee then took up consideration of subdivision (e), Ruling on Motion. John Shaft read from the Explanatory Note as follows;

"Subdivision (e) provides that the court shall rule on a pretrial motion before trial unless the court orders that it be decided upon at the trial of the general issue or after verdict. This is the current rule. The reference to issues which must be tried by the jury is dropped as unnecessary, without any intention of changing current law or practice. The current rule begs the question of when a jury decision is required, providing only that a jury is necessary if 'required by the Constitution or an act of Congress'. The issue has apparently only been raised once in a reported case. See C. Wright, Federal Practice and Procedure: Criminal §194 at p. 414 n.p. 85 (1969)."


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A question was raised concerning the meaning of the language that, "the court shall state its ** findings on the record", and the effect it would have in municipal and justice courts. It was suggested that an exclusionary provision in cases of municipal and justice courts be inserted. This raised an issue as to the effect of an appeal based on this action. Paul Sand cited Section 33-12-34 (Appeal--Time--How taken--Notice--Bail.).

John Shaft MOVED the adoption of subdivision (e) of Rule 12.Seconded by Judge Ilvedson. No further discussion and the motion CARRIED unanimously.

The Committee took up consideration of subdivision (f), Effect of Failure to Raise Defenses or Objections. John Shaft MOVED the adoption of 12(f) with a change in line 4, to insert "shall constitute" in lieu of "constitutes". It would then read, "...the court, shall constitute a waiver thereof,...". Motion was seconded. The motion CARRIED by unanimous vote.

MOTION was made to adopt subsection (f) as amended. Seconded. No further discussion; vote was taken and the motion CARRIED unanimously.

Subsection (g), Records, was considered next. The proposed new language reads as follows;

"A verbatim record shall be made of all proceedings at the hearing, including any findings of fact and conclusions of law made orally, except for municipal courts and justice courts."

It was suggested that a grammatical change be made in the last phrase, to substitute the word "in" for the word "for", to read "except in municipal courts". John Shaft MOVED to adopt subsection (g). It was seconded.

Judge Ilvedson said that he wasn't satisfied. Paul Sand suggested that the phrase "except in municipal courts and justice courts" be inserted at the beginning, so the provision would read; "Except in municipal courts and justice courts, a verbatim record shall be made of all proceedings at the hearing, including any findings of fact and conclusions of law made orally."

Question was called on the motion to adopt; motion CARRIED unanimously.

The Committee took up consideration of subdivision (h), Effect of Determination. Mr. Shaft read from the Advisory Committee Note of the Proposed Federal Rules (January 1970) as follows;

Subdivision (h) is essentially present rule 12(b)(5) except for the deletion of the provision that defendant may plead if the motion is determined adversely to him or, if he has already entered a plea, that that plea stands. This language seems unnecessary particularly in light of the experience in some district courts where a pro forma plea of guilty is entered at the arraignment, pretrial motions are later made, and depending upon the outcome the defendant may then change his plea to guilty or persist in his plea of not guilty."

Paul Sand questioned the provision of the last sentence of subdivision (h), "This rule does not affect the provision of any statute relating to periods of limitations." Mr. Sand suggested that this last sentence be eliminated or clarified in some manner.

Mr. Shaft agreed, saying that he too didn't care for the language of the sentence and suggested that it should be deleted.

The question posed concerning the language goes to the problem of when the statute tolls. It was suggested that a determination of whether a statute is tolled or not would require something more than this particular rule--that such issue would have to be determined by the court--therefore, this language is unnecessary.

Judge Erickstad suggested that the answer might be found in the U.S. Code Annotated, Title 18 (18 U.S.C.A. 608), under the Notes of Advisory Committee Rules, Note to Subdivision (b)(5). It states, "The last sentence of the rule that 'Nothing in this rule shall be deemed to affect the provisions of any act of Congress relating to periods of limitations is intended to preserve the provisions of statutes which permit a reindictment if the original indictment is found defective or is dismissed for other irregularities and the statute of


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limitations has run in the meantime, 18 U.S.C. §3288, formerly §587 (Defective indictment; defect found after period of limitations; reindictment)". He further added that the U.S. Code has specific provisions to the effect under certain circumstances, and unless North Dakota has such statutory provisions, this language is meaningless and this rule would be useless for such determination.

Judge Glaser noted that Chapter 29-04 (Limitations) doesn't cover this specific provision--it is mute on the subject.

Judge Erickstad suggested that there would be no harm in leaving the language, because the U.S.C.A. contains this reference and no doubt anyone studying the rule in the future would realize that this language must be construed in light of the statutes of the State of North Dakota--that the rule in itself does not toll the statute.

There was a MOTION by Judge Ilvedson to adopt subdivision (h) as presented. Seconded by Judge Erickstad.

Judge Morris said that the reference to statutes is unnecessary and perhaps more confusing than helpful. Judge Glaser said that where language presented in the Federal rules is eliminated in the language of the North Dakota rule, that the elimination in and of itself may be construed to mean something other than intended by the Committee. Paul Sand noted that the important difference is that under the Federal Rules, Federal statutes apply.

John Shaft MOVED to delete the last sentence of subdivision (h).Seconded by Judge Morris.

Paul Sand suggested inserting a notation in the Explanatory Note to explain that the reason for the Committee's decision to delete the last sentence of subdivision (h), "This rule does not affect the provisions of any statute relating to periods of limitations", is that North Dakota does not have applicable statutes comparable to the Federal statutes.

Judge Ilvedson noted that 90 A.L.R. 452, at page 456, states, "It is generally held that the return of an indictment or the filing of an information on which no valid conviction or judgment can be had will not operate to stop the running of the Statute of Limitations pending the return or filing of another indictment...".

Question was called on the motion to delete the last sentence of subdivision (h). Vote was taken and the motion CARRIED unanimously.

MOTION was made by Mr. Shaft to adopt subdivision (h) as amended. Seconded by Mr. Sand. Motion CARRIED unanimously.

MOTION was made by Mr. Shaft to adopt the entire Rule 12 as amended. Seconded by Judge Ilvedson. Vote was taken and the motion CARRIED unanimously.

The Committee then RECESSED for lunch.

The Committee RECONVENED at 1:30 p.m. with the following members present.

ATTENDANCE

Members present:

Hon. Ralph J. Erickstad, Chairman
Hon. Gerald G. Glaser
Hon. Roy A. Ilvedson
Hon. James Morris (arrived 1:45)
Hon. William S. Murray
Mr. Paul M. Sand
Mr. John Shaft
Mr. John A. Graham (arrived 4:00)

Members absent:

Hon. Eugene A. Burdick
Hon. Norbert J. Muggli
Hon. Harry J. Pearce
Mr. Roger Persinger
Hon. Kirk Smith
Mr. Robert L. Vogel

Staff present:

Mr. Charles M. Travis, Criminal Code Reviser
Miss Donna Fischer, Secretary


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Rule 12--Explanatory Note

The meeting reconvened with Judge Glaser as Acting Chairman. The Committee considered the Explanatory Note to Rule 12.

In reference to paragraph 1 of the text, Judge Erickstad requested the cite for the reference to the Proposed Amendments to the Federal Rules. It was noted the citation is 48 Federal Rules Decisions, at page 578. It was suggested that this source notation be inserted in the final copy of the Explanatory Note.

A correction was noted to the last paragraph of page 1, line 4, to read "obsolete plea or motion", not "of motion".

The language contained in parenthesis in paragraph 2 should be eliminated. Thus, the language "pleas of guilty, not guilty (or), nolo contendere (or former jeopardy)" would be changed to read, "pleas of guilty, not guilty, and nolo contendere."

The following sentence reads, "This rule expressly abolishes all other pleas and demurrers and motions to quash." Judge Glaser noted that demurrers had previously been abolished by statute rather than by this rule, so that including the language "demurrers" in the sentence may mislead one to think that prior to the Rule, demurrers were permitted. It was decided that the language should remain because of the confusion which may be created as a result of deleting the language.

It was noted that the following line, "The Advisory Committee note to Rule 12(a) states:", should contain, in brackets, the cite "18 U.S.C.A., Federal Rules of Criminal Procedure, p. 607".

Judge Glaser said that he was troubled by the language in the second paragraph of page 3, that "No sanction is provided for the government's failure to comply with the court's order because the committee believes...", questioning the reference to a "court order". He noted that the language of this paragraph deals with subdivision (d), Notice by the Prosecution of the Intention to Use Evidence, and that subdivision (d) contains no reference to a court order.

Judge Erickstad suggested the possibility that it may be an inference for a court order applicable under subsection (d)(2), At the Request of the Defendant. The provision "may request notice of the prosecution's intention" could possibly be in the form of a request for an order to the court.

John Shaft read from page 32 of the Advisory Committee Note of the Proposed Federal Rules (January 1970), see also the "Omnibus Crime Control and Safe Streets Act of 1968," 18 U.S.C. §2518 (9);

The contents of any intercepted wire or oral communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a Federal or State court unless each party, not less than ten days before the trial, hearing or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized or approved.

Judge Erickstad noted that the exclusionary provision is discretionary with the court rather than being an automatic process. It was decided finally that the language would not be objectionable.

Judge Ilvedson MOVED the adoption of the Explanatory Note with the above-listed changes. It was noted that there is additional language for inclusion in the Note for Subdivision (h); "The deletion of the sentence 'This rule does affect the provisions of any statute relating to periods of limitations.' from subdivision (h) is primarily because North Dakota does not have statutes comparable to the Federal statutes. (See also: 90 ALR 452, 456]."

Motion was seconded by John Shaft. Question was called and the motion CARRIED.

Statutes Affected

The Committee then considered the statutes affected by Rule 12, as follows.


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Superseded:

29-11-01 no objection ) It was noted that these statutes were superseded 29-11-02 no objection ) by Rule 7 as well.

29-11-13 no objection

29-14-01 no objection--It was noted that motion to quash has been abolished by Rule 11.

29-14-03 no objection

29-14-04 no objection

29-14-05 no objection

29-14-06 no objection

29-14-07 no objection

29-14-08 no objection

29-14-09 no objection

29-14-10 no objection

29-14-11 no objection

29-14-12 no objection

29-14-13 no objection

29-14-14 (Defendant's pleading--Plea.) was added to the list of Statutes Superseded.

29-14-15 (Pleas classified.) was added to Statutes Superseded by Rule 12.

29-14-25 no objection

It was MOVED by John Shaft to adopt the entire Explanatory Note.Seconded by Mr. Sand. No further discussion and the motion CARRIED unanimously.

RULE 12.1

The Committee then took up consideration of Rule 12.1, Notice of Alibi. The Rule was read by John Shaft and it was noted that this Rule had not been previously adopted by the Committee. The Rule was presented as follows.

Rule 12.1 Notice of Alibi.

(a) Demand by Prosecuting Attorney; Notice by Defendant.

Upon written demand of the prosecuting attorney stating the time, date, and place at which the alleged offense was committed, a defendant who intends to offer evidence of an alibi defense, within the time provided for the making of pretrial motions or at any time thereafter as the court directs, shall inform the prosecuting attorney of that intention and file such notice. The notice shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish the alibi.

(b) Notice by the Prosecuting Attorney.

Within such time, after receiving notice by the defendant, as the court directs, the prosecuting attorney shall inform the defendant of the names and addresses of those upon whom the government intends to rely to establish defendants presence at the scene of the alleged offense and shall file such notice.

(c) Failure to Comply.

Upon failure of either party to comply with the requirements of this Rule, the court shall exclude the testimony of any witness offered by that party as to the defendants absence from, or presence at, the scene of the alleged offense. This Rule does not limit the right of the defendant to testify in his own behalf.

(d) Continuing Duty to Disclose.

Both the defendant and the prosecution are under a continuing duty to promptly disclose the names and addresses of additional witnesses which come to the attention of either party subsequent to their having given notice pursuant to the requirements of this Rule.

(e) Exceptions.

For good cause shown, the court may grant an exception to any of the requirements of this Rule.


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Following the reading of the Rule, Mr. Shaft MOVED its adoption.

It was noted that the basis for the rule under state practice and procedure is Section 29-14-28 (Defendant in criminal case to give notice of alibi.), a statute passed at the 1969 Legislative Session. It requires that the defendant give notice of alibi to the prosecution. It was pointed out that the statute pertains only to courts of record and to that extent the rule is broader. It was noted that the provisions of the rule also require the prosecution to initiate the notice provision. It was suggested that based on that language, the prosecutor would probably as a matter of form request a notice of alibi.

Mr. Shaft read from the Advisory Committee Note to proposed rule 12.1, on page 19 (April 1971), noting that there had been some question on the part of the Federal Rules Committee as to whether the process should be initiated by defendant or by the prosecution. He read further, "Doubts about the constitutionality of a notice-of-alibi rule were to some extent resolved by Williams v. Florida, 399 U.S. 78 (1970). In that case the court sustained the constitutionality of the Florida notice-of-alibi statute, but left unresolved two important questions." For further discussion see 52 F.R.D. 432 (1971).

Judge Glaser noted that the fact that the prosecutors like to draw the complaint as generally as possible would preclude the request for notice of alibi as a matter of course in the charging document.

Judge Ilvedson MOVED the adoption of Rule 12.1. Seconded by Judge Erickstad.

John Shaft referred to the language in subdivision (b), "Within such time, after receiving notice by the defendant, as the court directs", and questioned how the court would affect the process In this case. Judge Glaser said that if the prosecuting attorney does not comply with the request by the defendant, the court may order such compliance.

There was no further discussion. The question was called. The motion CARRIED by unanimous vote.

Rule 12.1--Explanatory Note

The Committee then took up consideration of the Explanatory Note to Rule 12.1, Notice of Alibi. It was noted that only one statute is affected by the Rule, that is, Section 29-14-28 (Defendant in criminal case to give notice of alibi.). It was discussed earlier and there was agreement to supersede it.

The language of the Note is primarily the language of the Advisory Committee of the Proposed Amendments to the Federal Rules (April 1971), with the exception of the first few paragraphs. The first paragraph met with no objection.

The following changes were recommended for the second sentence in paragraph 2; "The provisions of Rule 12.1 change and broaden (((the provision of §29-14-28))) these provisions by requiring the prosecuting attorney to initiate the notice provisions, (((to include))) by requiring notice (((by))) on the part of the prosecuting attorney of any witness he may have (((to show that the defendant was at the scene of the alleged crime))) to rebut the alibi testimony and to provide the continuing duty of disclosure on the part of both the prosecution and the defendant." Paragraph 2 would read as follows;

"Provision for notice of alibi to be given to the prosecuting attorney by the defendant in a criminal case was passed by the legislature at the 1969 session as Section 29-14-28, NDCC. The provisions of Rule 12.1 change and broaden these provisions by requiring the prosecution to initiate the notice provisions, by including notice by the prosecuting attorney of any witnesses he may have to rebut the alibi testimony and to provide a continuing duty of disclosure on the part of both the prosecution and the defendant."

Judge Ilvedson MOVED the adoption of the Explanatory Note with the noted change. Seconded by John Shaft. There was no further discussion. Question was called and the motion CARRIED unanimously.

RULE 12.2

It was proposed by Judge Ilvedson that the Committee consider the Rule as presented in the Proposed Amendments to the Federal Rules (April 1971) as Rule 12.2, Notice of Insanity. Judge Ilvedson read the rule as follows.


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Rule 12.2 Notice of Insanity.

(a)Defense of Insanity.

If a defendant intends to rely upon the defense of insanity at the time of the alleged crime, he shall, within the time provided for the filing of pretrial motions or at such later time as the court may direct, inform the attorney for the government of such intention and file such notice. The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.

(b) Mental Disease or Defect Inconsistent with the Mental Element Required for the Offense Charged.

If a defendant intends to introduce expert testimony relating to a mental disease, defect, or other condition bearing upon the issue of whether he had the mental state required for the offense charged, he shall, within the time provided for the filing of pretrial motions or at such later time as the court may direct, inform the attorney for the government of such intention and file such notice. The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.

Following the reading of the rule, Judge Ilvedson read from the text of the Advisory Committee note.

Mr. Sand pointed out that the rule should be amended to read "attorney for the prosecution".

Judge Ilvedson MOVED to adopt Rule 12.2 with the style change to reflect "prosecuting attorney" where "attorney for the government" is listed in paragraph (a), line 4 and In line 6 of subdivision (b)]. Seconded by Paul Sand. Judge Erickstad noted that he favors the rule.

Question was called and the motion CARRIED unanimously.

It was noted that an Explanatory Note will be prepared by Mr. Shaft and Mr. Travis, for presentation to the Committee at the next meeting. It was noted that Chapter 29-20 should be listed as affected under the rule.

RULE 13

The Committee next took up consideration of Rule 13, Trial Together of Indictments or Informations. Mr. Travis read the rule as proposed. It was noted that there were two minor grammatical changes. The rule follows.

The court may order two or more indictments, informations, or complaints to be tried together if the offenses(((,)) and the defendants, if there is more than one, could have been joined in a single indictment, information, or complaint. The procedure shall be the same as if the prosecution were under (((such))) a single indictment, information, or complaint.

Paul Sand MOVED the re-adoption of Rule 13 with the two minor style changes. Motion was seconded by Judge Erickstad. No further discussion. Question was called and the motion CARRIED by unanimous vote.

Rule 13--Explanatory Note

The Committee then took up consideration of the Explanatory Note to Rule 13 (dated 4/26/72) and Mr. Travis read the Explanatory Note.

It is noted that John Graham is now in attendance.

Judge Erickstad noted that the commentators under the Minimum Standards Relating to Joinder of the American Bar Association have generally been critical of similar offense joinder, noting that this rule does not permit similar offense joinder.

It was noted by Mr. Sand that there was no provision under present practice and procedure to preclude charging more than one offense in a single count or indictment.

Mr. Sand then MOVED the adoption of the Explanatory Note to Rule 13. Seconded by Mr. Shaft. Question was called and the motion CARRIED by unanimous vote.


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Statutes Affected:

It was noted that there is only one statute listed as superseded by Rule 13, that is, Section 29-11-10.1. This statute was superseded by Rules 7 and 8. Since it also affects Rule 13, there was no objection to allowing it to remain as superseded.

Mr. Graham was appointed to chair the Committee for Rule 14, which is proposed by Judge Glaser.

RULE 14

The Committee took up consideration of Rule 14, Relief from Prejudicial Joinder. The rule was read by Judge Glaser, as follows.

If it appears that a defendant or the prosecution is prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, or by such joinder for trial together, the court may order an election of separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the prosecuting attorney to deliver to the court for inspection in cameraany statements or confessions made by the defendants which the prosecution intends to introduce in evidence at the trial.

It was pointed out that "in camera" was underlined and it was noted that this language was italicized in the federal rules. However, since it was decided by the Committee earlier in the meeting that no words would be underlined for emphasis, the underlineation is deleted.

Judge Glaser MOVED to adopt Rule 14.

There was some question raised concerning the word "in" modifying "ruling", in line 6. Paul Sand made a MOTION to delete the word "In" and insert the word "Before". It was noted that there was no second and the motion FAILED for lack of a second.

Procedurally, the Committee is now back to a consideration of the motion to adopt Rule 14, as proposed by Judge Glaser. Judge Glaser again MOVED the adoption of Rule 14, with the deletion of the underlineation of "in camera". Motion was seconded. Chairman called for a vote. Motion CARRIED unanimously.

The staff was directed by the Chair to eliminate any underlineation of italicized words.

Rule 14--Explanatory Note

The Committee next took up consideration of the Explanatory Note to Rule 14. Judge Glaser read the text of the Explanatory Note. Following the reading, it was noted that in the third paragraph, line 1, the semicolon should be deleted so that the sentence reads continuously, "The issue raised in Rule 14 is when should the trial of multiple defendants be separated so that prejudice to the defendants will be avoided."

Attention was called to the words "In reality" in line 3 of that paragraph. Discussion ensued as to the relationship of these words to the sentence, "In reality, the danger of prejudice exists in all trials involving multiple defendants." It was noted that the dangers of prejudice exist in all trials, and it was suggested that the word "possibility" is preferable to "in reality". Paul Sand suggested using the language "Even though".

Mr. Sand then MOVED to have the third line in paragraph 3 reconstructed as follows: "Even though the danger of prejudice exists in all trials involving multiple defendants, the general rule is ...". Motion was seconded by Judge Erickstad. Question was called on the motion. Motion CARRIED unanimously.

Judge Glaser, as author of the rule, MOVED the adoption of the Explanatory Note to Rule 14 as amended. It was seconded by Paul Sand. The question was called; vote was taken. The motion CARRIED.


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Statutes Superseded:

The Committee then considered the statutes. It was noted that Section 29-11-10.1 affects the rule but has also been superseded previously.

It was also noted that the reference line to statutes superseded by Rule 7(e), Section 29-11-49, should be deleted.

Section 29-11-50 (Serving of Indictment or Information or Bill of Particulars) was considered by the Committee. There was no objection. It is listed as superseded. It is noted that this section is superseded by Rule 7.

Judge Glaser MOVED to adopt the entire Explanatory Note to Rule 14.

Seconded by Mr. Sand. Question was called and the motion CARRIED unanimously.

ADJOURNMENT

The Chairman adjourned the meeting.

Next scheduled meeting date: June 26-27, 1972

Respectfully submitted,

Charles M. Travis
Criminal Code Reviser

Donna Fischer
Secretary