Joint Procedure Committee Meeting

Scheduled on Friday, May 3, 1968 @ 10:00 AM

MINUTES OF MEETING

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

May 3, 1968

The Joint Committee of the Judicial Council and the State Bar Association for the Adoption of Rules of Criminal Procedure met at 9:00 a.m., Friday, May 3, 1968, in the hearing room of the Supreme Court.

Members present were:
Supreme Court Judge Ralph Erickstad, Chairman;
Retired Supreme Court Judge James Morris;
Former Supreme Court Judge William S. Murray;
District Judge Norbert J. Muggli;
County Judge Kirk Smith;
First Assistant Attorney General Paul M. Sand;
Mr. Gerald G. Glaser;
Mr. Roger Persinger;
Mr. John Shaft;
Mr. Robert L. Vogel.

Absent were:
District Judge Eugene A. Burdick;
District Judge Roy A. Ilvedson.

Also present were:
Mr. John A. Graham, law clerk;
Mrs. Rebecca Quanrud, secretary.

The Chairman opened the meeting and welcomed the new members, Mr. Persinger and Mr. Sand.

The Secretary read the minutes of the previous meeting, omitting texts of proposed and adopted rules. The minutes were approved as read.

Judge Smith read Rule 5(a) and (b), which were adopted at the meeting of Jan. 26-27. He then read his drafts of Rule 5(c), (d), and (e), as follows:

Rule 5. Proceedings Before the Magistrate.

(c) The preliminary examination.

The defendant shall not be called upon to plead. If the defendant waives preliminary examination, the magistrate shall hold him to answer in the court in which the offense is triable and shall admit him to bail, as provided by these rules. If the defendant does not waive preliminary examination, the magistrate shall hear the evidence within a reasonable time. The defendant may cross-examine witnesses against him and may introduce evidence in his own behalf. The magistrate shall issue such process as may be necessary to summon witnesses within the State for either the State or the defendant. If so requested by either the State or the defendant, all the testimony in the case must be reduced to writing in the form of depositions. If the accused shall make and file with the committing magistrate his affidavit duly sworn to stating that he is financially unable to pay the expense of transcribing such testimony, and that the transcript thereof is necessary to his proper defense, such transcript of testimony shall be made and a copy thereof delivered to such accused and to the State at the expense of the county wherein the hearing was had. If from the evidence it appears to the magistrate that there is probable cause to believe that a public offense has been committed and that the defendant committed it, the magistrate shall hold him to answer in the district court; otherwise the magistrate shall discharge him. The magistrate shall admit the defendant to bail as provided in these rules.

(d) Transmission of papers.

At the conclusion of the preliminary examination the magistrate shall transmit forthwith to the clerk of the court having jurisdiction of the offense all papers in the proceedings, any bail taken by him, and all exhibits received at the examination. Until produced at the trial, or unless otherwise ordered by the court, such papers and exhibits shall not be available for inspection by any person other than a judge of the court having jurisdiction of the offense or authorized to issue writs of habeas corpus, the defendant, or counsel for the respective parties.

(e) Offense triable by magistrate.

If the defendant is charged with an offense over which the magistrate has jurisdiction to try and determine, the magistrate shall hear and determine the matter as provided by these rules for trials of other criminal cases in the district court.


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Minutes of the meeting of may 3-4, 1968 - p. 2

After discussion Judge Smith moved to delete Rule 5(e). Mr. Vogel seconded the motion. The motion carried unanimously. The Chairman noted that Rule 5(e) was stricken with the thought that it is already covered generally by Rule 1.

The Chairman requested Judge Smith to do some research on the matter of California's allowing the transcript of a preliminary hearing to be certified to the trial judge as the record on which he will make his decision.

Judge Murray excused himself from the meeting at this time because of previous commitments.

The committee recessed at 12:00 noon and reconvened at 1:15 p.m., with the same persons present.

Judge Smith read Rule 5(c)(1) and (2) as amended and moved their adoption. The motion carried unanimously. They read:

Rule 5. Proceedings Before the Magistrate.

(c) The preliminary examination.

(1) The defendant shall not be called upon to plead. If the defendant waives preliminary examination, the magistrate shall hold him to answer in the court in which the offense is triable and shall admit him to bail, as provided by these rules.

(2) If the defendant does not waive preliminary examination, the magistrate shall hear the evidence within a reasonable time. The defendant may cross-examine witnesses against him and may introduce evidence in his own behalf. The magistrate shall issue such process as may be necessary to summon witnesses for either the State or the defendant. A verbatim record of the proceedings in the preliminary hearing shall be made under the direction of the magistrate if a request therefor is made by either the State or the defendant. A copy of a transcript of such record of proceedings shall be furnished to the defendant and to the State if either party requests the same. When a transcript is requested by the defendant, its cost shall he borne by the county wherein the venue of the alleged offense was originally laid if the magistrate finds that the defendant is financially unable to pay for it without undue hardship. If from the evidence it appears to the magistrate that there is probable cause to believe that a public offense has been committed and that the defendant committed it, the magistrate shall hold him to answer in the district court; otherwise the magistrate shall discharge him. The magistrate shall admit the defendant to bail as provided in these rules.

It was noted that Rule 5(c)(1) and (2) affect the following statutes: N.D.C.C. §§ 29-01-14, -15, 12-01-04(12), 48-18-01, 29-07-15, 27-06-05, and 29-06-03.

Judge Smith moved the adoption of Rule 5(d) as amended. The motion carried unanimously. It reads:

Rule 5. Proceedings before the Magistrate.

(d) Transmission of papers.

At the conclusion of the preliminary examination or the waiver thereof the magistrate shall transmit forthwith to the clerk of the court having jurisdiction of the offense all papers in the proceedings, any bail taken by him, and all exhibits received at the examination.


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Minutes of the meeting of May 3-4, 1968 - p. 3

Mr. Shaft read his proposed draft of Rule 4(c)(1). It read:

Rule 4. Warrant or Summons Upon Complaint.

(c) Execution or Service.

(1) Execution of Warrant. The warrant shall be directed to all peace officers in this state and shall be executed only by a peace officer. It shall be executed by the arrest of the defendant and may be executed in any county of the state by any peace officer in the state. The officer need not have the warrant in his possession at the time of the arrest, but if he has the warrant at that time, he shall show it to the defendant immediately upon request. If the officer does not have the warrant in his

possession at the time of the arrest, he shall then inform the defendant of the offense charged and of the fact that a warrant has been issued, and upon request he shall show the warrant to the defendant as soon as possible.

There followed a discussion of telegraphed warrants.

Mr. Shaft moved that Rule 4(c)(1) with minor amendments be adopted. Judge Smith seconded the motion. The motion carried unanimously. Rule 4 (c) (1) as adopted reads:

Rule 4. Warrant or Summons Upon Complaint.

(c) Execution or Service.

(1)Execution of Warrant. The warrant shall be directed to all peace officers in this state and shall be executed only by a peace officer. It shall be executed by the arrest of the defendant and may be executed in any county of the state by any peace officer in the state. The officer need not have the warrant in his possession at the time of the arrest, but if he has the warrant or a copy thereof at that time, he shall show it to the defendant immediately upon request. If the officer does not have the warrant or a copy thereof in his possession at the time of the arrest, he shall then inform the defendant of the offense charged and of the fact that a warrant has been issued, and upon request he shall show the warrant or a copy thereof to the defendant as soon as possible.

It was noted that N.D.C.C. §§ 29-05-23 to 29-05-27 are to be retained, without reference in the rules.

Mr. Shaft read his draft of Rule 4(e)(2) and moved its adoption. It was noted that affected sections are N.D.C.C. §§ 29-11-05, 29-11-15, and 29-11-45.

Mr. Glaser moved that Rule 4(e)(2) be deleted. Judge Smith seconded the motion. The question being on Mr. Glaser's substitute motion, the motion carried unanimously.

Mr. Vogel, who had been asked to make a special report on Rule 4(d) explained that in his opinion the rule was for the purpose of cancelling duplicates of warrants issued in multiple copies. He recommended that the rule be left unchanged from the wording of the federal rule.


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Minutes of the meeting of May 3-4, 1968 - p. 4

The Chairman called on Judge Morris for further comments regarding Rule 6. Judge Morris said that he doubts whether under our constitution the committee can make rules which will change substantially the grand jury statutes as adopted by the legislature. He read § 8 of the Constitution. He said he does not think the legislature can even delegate to some other body the power to change the grand jury statutes.

Mr. Graham suggested the possibility of omitting Rule 6, retaining the number for possible future use if the legislature changes the grand jury statutes.

Mr. Vogel said that he was about ninety per cent opposed to grand juries but that they had a few advantages. one case in which a grand jury was used to some advantage, he said, was in the Malnourie and Whiteman case, involving the civil rights of Indians. He said the federal government uses it because it is required under the Constitution in felony cases. He also mentioned that it is sometimes used by federal prosecutors (1) to see how a dubious case fares before a jury; and (2) to dispose of cases they are pressured to bring but which they regard as "washouts."

Mr. Sand said that he would be reluctant to do away with grand juries but that he regarded our statutes as clumsy. He said that the State's Attorneys Association is planning to introduce legislation for the revision of the grand jury statutes and suggested that the committee reserve Rule 6 for a rule covering the possible new statutes. He said the committee should read Art. 5 of the United States Constitution--that it be made applicable to the states.

Judge Morris noted that changes in juries in civil cases have been mentioned in Judicial Council. He said that Powers v. Williams, 53 N.D. 54, 205 N.W. 9, held that the legislature can change the number of jurors required to reach a verdict in civil cases in which the issues are purely civil issues.

Mr. Vogel moved that the committee retain the rule number [6] but write no rule on grand juries for the time being. Mr. Persinger seconded the motion. The motion carried unanimously.

In the absence of Judge Ilvedson Rule 7 was passed over.

Mr. Vogel discussed joinder of offenses and defendants. He read the introduction to the American Bar Association's tentative draft of November 1967 of Standards Relating to Joinder and Severance.

Mr. Graham read N.D.C.C. § 29-11-10.1, which is § 3, ch. 256, S.L. 1967, relating to joinder.

Mr. Vogel read from the American Bar Association's tentative draft of December 1967 of Standards Relating to Sentencing Alternatives and Procedures.

Judge Muggli said that there had been discussion among the district judges and the feeling was general that they will not discuss the possible sentence that may be imposed with the attorneys prior to sentencing.

Mr. Vogel read from the American Bar Association's tentative draft of February 1967 of Standards Relating to Pleas of Guilty. There followed a discussion of the plea or guilty and or plea bargaining.

The committee recessed at 5:00 p.m. and reconvened at 8:07 p.m., the same persons present.


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Minutes of the meeting of May 3-4, 1968 - p. 5

There was a discussion of joinder and severance. Mr. Vogel read Federal Rules 8, 13, and 14. They read:

Rule 8. Joinder of Offenses and of Defendants.

(a) Joinder of offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

(b) Joinder of defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

Rule 3. Trial Together of Indictments or Informations.

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

Rule 14. Relief from Prejudicial Joinder.

If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or 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 attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.

A discussion of Rules 8, 13, and 14, and of the study material relating to them followed.

Mr. Sand moved that the committee tentatively adopt Rule 8 as amended and then when finished with the other rules reconsider it. Judge Morris seconded the motion. The motion carried unanimously. Rule 8 as adopted reads:

Rule 8. Joinder of Offenses and of Defendants.

(a) Joinder of offenses. Two or more offenses may be charged in the same indictment, information, or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.


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Minutes of the meeting of May 3-4, 1968 - p. 6

(b) Joinder of defendants. Two or more defendants may be charged in the same indictment, information, or complaint if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

Mr. Glaser remarked that if the committee should adopt Rule 14 as read, in his opinion the word may should be changed to shall.

Mr. Vogel moved that the committee adopt Rule 13 tentatively, with the word complaint or complaints added where appropriate, and the words or both stricken. Mr. Sand seconded the motion. The motion carried unanimously. Rule 13 as adopted reads:

Rule 13. Trial Together of Indictments, Informations, or Complaints.

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 single indictment, information, or complaint.

Mr. Glaser moved that the committee adopt Federal Rule 14, with the word complaint added and the words prosecuting attorney and prosecution substituted for the words attorney for the governmentand government. Mr. Sand seconded the motion. The motion carried unanimously. Rule 14 as adopted reads:

Rule 14. Relief from Prejudicial Joinder.

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 or 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.

There followed a discussion at length of minimum standards relating to plea bargaining. Mr. Vogel volunteered to do further study in plea bargaining and will see if further work has been done under the American Bar Association project on minimum Standards for Criminal Justice.

It was noted that the word government should probably be included among the definitions to be given toward the end of the rules.

Judge Muggli read his first draft of Rule 9.

The meeting recessed at 10:08 p.m. May 3 and reconvened at 9:05 a.m. May 4, with the same persons present as at the time of recess.


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Minutes of the meeting of may 3-4, 1968 - p. 7

Judge Muggli read his amended draft of Rule 9 as follows:

Rule 9. Warrant or Summons Upon Indictment or Information.

(a) Issuance. Upon the request of the prosecuting attorney the court shall issue a warrant of arrest for each defendant named in the information, if it is supported by oath, or in the indictment except that no warrant need be issued for any defendant who has theretofore been held to answer for the offense or offenses charged. The clerk shall issue a summons instead of a warrant upon the request of the prosecuting attorney or by direction of the court. Upon like request or direction he shall issue more than one warrant or summons for the same defendant. He shall deliver the warrant or summons to the sheriff or other person authorized by law to execute or serve it. If the defendant fails to appear in response to a summons, a warrant shall issue.

(b) Form.

(1) Warrant. The form of the warrant shall be as provided in Rule 4(b)(1) except that it shall be signed by the clerk, describe the offense charged in the indictment or information, and command that the defendant be arrested and brought before the court. The amount of bail may be fixed by the court and endorsed on the warrant.

(2) Summons. The summons shall be in the same form as the warrant except that it shall summon the defendant to appear before the court at a stated time and place.

(c) Execution or service; and return.

(1) Execution or service. The warrant shall be executed or the summons served as provided in Rule 4(c)(1), (2), and (3). A summons to a corporation shall be served by delivering a copy to an officer or to a managing or general agent or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the corporation's last reasonably ascertainable address within the state or at its principal place of business elsewhere. The officer executing the warrant shall bring the arrested person promptly before the court or, for the purpose of admission to bail, before a magistrate.

(2) Return. The officer executing a warrant shall make return thereof to the court. At the request of the prosecuting attorney any unexecuted warrant shall be returned and cancelled. On or before the return day the person to whom a summons was delivered for service shall make return thereof. At the request of the prosecuting attorney made at any time while the indictment or information is pending, a warrant returned unexecuted and not cancelled, or a summons returned unserved, or a duplicate thereof, may be delivered by the clerk to the sheriff or other authorized person for execution or service.

After extended discussion the Chairman appoint Judge Muggli, Judge Smith, Mr. Vogel, and Mr. Shaft to a subcommittee to work on a revision of Rule 9(a). In their absence Mr. Graham read Judge Murray's letter of January 17, 1968, [which is contained in the study material relating to Rule 10] and Federal Rule 10. Federal Rule 10 reads:


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Minutes of the meeting of May 3-4, 1968 - p. 8

Rule 10. Arraignment.

Arraignment shall be conducted in open court and shall consist of reading the indictment or information to the defendant or stating to him the substance of the charge and calling on him to plead thereto. He shall be given a copy of the indictment or information before he is called upon to plead.

The subcommittee returned and Judge Muggli read the amended draft of Rule 9 and moved its adoption. Mr. Shaft seconded the motion. The motion carried unanimously. Rule 9 as adopted reads:

Rule 9. Warrant or Summons Upon Indictment or Information.

(a) Issuance. Upon the request of the prosecuting attorney the court shall issue a warrant of arrest for each defendant named in the information, if it is supported by oath, or in the indictment, except that no warrant need be issued for any defendant who has theretofore been held to answer for the offense or offenses charged. The clerk shall issue a summons instead of a warrant upon the request of the prosecuting attorney or by direction of the court. Upon like request or direction he shall issue more than one warrant or summons for the same defendant. He shall deliver the warrant or summons to the sheriff or other person authorized by law to execute or serve it. If the defendant fails to appear in response to a summons, a warrant shall issue.

(b) Form.

(1) Warrant. The form of the warrant shall be as provided in Rule 4(b)(1) except that it shall be signed by the clerk, describe the offense charged in the indictment or information, and command that the defendant be arrested and brought before the court. The amount of bail may be fixed by the court and endorsed on the warrant.

(2) Summons. The summons shall be in the same form as the warrant except that it shall summon the defendant to appear before the court at a stated time and place.

(c) Execution or Service; and Return.

(1) Execution or Service. The warrant shall be executed or the summons served as provided in Rule 4(c)(1) and (2).

(2) Return. The officer executing a warrant shall make return thereof to the court. At the request of the prosecuting attorney any unexecuted warrant shall be returned and cancelled. On or before the return day the person to whom a summons is delivered for service shall make return thereof. At the request of the prosecuting attorney made while the indictment or information is pending, a warrant returned unexecuted and not cancelled, or a summons returned unserved, or a copy thereof, may be delivered by the clerk to a peace officer for execution or service.

Mr. Graham read Judge Burdick's draft of Rule 10. It was noted N.D.C.C. § 29-13-04 is an affected statute.

Judge Muggli moved that the committee accept Judge Murray's recommendation that Rule 10 based on the federal rule be adopted. Mr. Vogel seconded the motion. The motion carried unanimously. Rule 10 as adopted reads:


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Minutes of the meeting of May 3-4, 1968 - p. 9

Rule 10. Arraignment.

Arraignment shall be conducted in open court and shall consist of reading the indictment, information, or complaint to the defendant or stating to him the substance of the charge and calling on him to plead thereto. He shall be given a copy of the indictment, information, or complaint before he is called upon to plead.

Judge Smith read Federal Rule 11 and moved its adoption. Mr. Shaft seconded the motion. A lengthy discussion, particularly relating to the plea of nolo contendere followed. The question being on Judge Smith's motion, Judge Smith, Mr. Shaft, Judge Morris, Mr. Persinger, and Mr. Glaser voted aye; Judge Muggli, Mr. Vogel, and Mr. Sand voted nay; the Chairman abstained from voting. The motion was declared carried by a vote of 5 to 3. It was noted that the rule will supersede N.D.C.C. §§ 29-14-15, -16, -17, and -18. Rule 11 as adopted reads:

Rule 11. Pleas.

A defendant may plead not guilty, guilty, or, with the consent of the court nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contenderewithout first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.

Mr. Shaft read his draft of Rule 12. It was noted that statutes affected include N.D.C.C. §§ 29-11-01, -02, -13, 29-14-01, and 29-14-03 through 29-14-15.

The Chairman announced that the next meeting of the committee would be Thursday and Friday, July 25 and 26, 1968. He made the following study assignments: Rule 22, Mr. Persinger; Rule 23, Mr. Glaser; Rule 24, Mr. Vogel; Rule 25, Mr. Shaft; Rule 26, Judge Murray; Rule 27, Judge Muggli, Rule 28, Mr. Sand; Rule 29, Judge Morris; Rule 30, Judge Ilvedson; and Rule 31, Judge Smith. He suggested that those members who had facilities for reproducing their drafts should do so and distribute them to the other members. The secretary was instructed to send a list of members' names and addresses to everyone on the committee.

The meeting adjourned at 12:02 p.m.

Respectfully submitted:
Rebecca Quanrud, Secretary