Joint Procedure Committee Meeting
Scheduled on Monday, June 26, 1972 @ 10:20 AM
MINUTES OF MEETING
Joint Committee of the Judicial Council
and the State Bar Association
for the Adoption of Rules of Criminal Procedure
June 26-27, 1972
Monday, June 26
On June 26 at 9:20 a.m., the Rules Committee meeting of June 26-27 was called into session.
ATTENDANCE
Members present:
Hon. Ralph J. Erickstad, Chairman
Hon. Norbert J. Muggli
Hon. Kirk Smith
Hon. Harry J. Pearce (arrived 10:30)
Members absent:
Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Mr. John A. Graham
Hon. Roy A. Ilvedson
Hon. James Morris
Hon. William S. Murray
Mr. Roger Persinger
Mr. Paul M. Sand
Mr. John G. Shaft
Mr. Robert Vogel
Staff present:
Mr. Charles M. Travis, Criminal Code Reviser
Mr. Joseph H. Louwagie, Assistant Code Reviser
Miss Donna Fischer, Secretary
MINUTES
Judge Muggli MOVED to dispense with a reading of the minutes of the last meeting and to approve them as corrected by the staff (see Errata Sheet). Motion was seconded by Judge Smith and CARRIED by unanimous vote.
WELCOMING ADDRESS
Chairman Erickstad welcomed those members of the Committee present. He suggested continuing with the agenda as proposed in spite of the limited number of members present. It is noted that an attempt to establish a quorum was unsuccessful.
ADMINISTRATIVE REMARKS
Mr. Travis noted that for the convenience of the Committee, the staff had prepared and handed out copies of those Rules and their Explanatory Notes scheduled for consideration at this meeting.
Rule 12.2--Explanatory Note
The first item for consideration was the Explanatory Note to Rule 12.2 (Notice of Insanity), which Rule had been adopted at the previous meeting. Mr. Travis, in Mr. Shaft's absence, read the Explanatory Note as follows, noting that Mr. Shaft was satisfied with it.
Rule 12.2 is an adaptation of the proposed Federal Rule 12.2. It is modified only in style to be consistent with these Rules.
The Advisory Committee Note of the Proposed Amendments to the Federal Rules (April 1971) provides as follows.
"Proposed rule 12.2 is designed to require a defendant to give notice prior to trial of his intention (1) to rely upon the defense of insanity or (2) to introduce expert testimony of mental disease or defect on the theory that such mental condition is inconsistent with the mental state required for the offense charged. The objective is to give the government time to prepare
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to meet the issue, which will usually require reliance upon expert testimony. Failure to give advance notice commonly results in the necessity for a continuance in the middle of a trial, thus unnecessarily delaying the administration of justice."
"Requiring advance notice of the defense of insanity is commonly recommended as a desirable procedure. The Working Papers of the National Commission on Reform of Federal Criminal Laws, Vol. 1, p. 254 (1970), state in part:
It is recommended that procedural reform provide for advance notice that evidence of mental disease or defect will be relied upon in defense...
"Requiring advance notice is proposed also by the American Law Institute's Model Penal Code, §4.03 (P.O.D. 1962). The commentary in Tentative Draft No. 4 at 193-194 (1955) indicates that, as of that time, six states required pretrial notice and an additional eight states required that the defense of insanity be specially pleaded.
"Subdivision (a) deals with notice of the 'defense of insanity.' ***
"Subdivision (b) is intended to deal with the issue of expert testimony bearing upon the issue of whether the defendant had the 'mental state required for the offense charged.'
"Subdivision (b) does not attempt to decide when expert testimony is admissible on the issue of the requisite mental state. It provides only that the defendant must give pretrial notice when he intends to introduce such evidence. The purpose is to prevent the need for a continuance when such evidence is offered without prior notice.***"
Judge Muggli then questioned the applicability of the statutes Considered under Rule 12.2. Mr. Travis explained that the reason for listing those statutes as Considered was to alert the Committee to all possible statutes which might be affected by the Rule.
Judge Muggli pointed out that the question of insanity occurs at two different times--first, at the time of the commission of the crime, and second, at the time of the trial. He questioned whether this Notice of Insanity would apply to both situations. Mr. Travis noted that Notice under Rule 12.2 must be given anytime the defense of insanity will be used at trial. Therefore, it would be applicable in both situations.
Judge Muggli then referred to subdivision (a) of the Rule (Defense of Insanity), which begins, "If a defendant intends to rely upon the defense of insanity at time of the alleged crime,...". He stated that in light of this language, he thought Sections 29-20-01 (Examination of defendant's mental condition to determine whether he shall be tried.), 29-20-02 (Commitment to state hospital for the insane--Rehearing--Trial or commitment.), and 29-20-03 (Appointment of expert witnesses by court--Commitment to institution for examination.) should be retained.
Statutes Affected:
The following statutes are listed as Considered:
12-02-01(4) no objection,
12-05-03 no objection
29-20-01 no objection
29-20-02 no objection
29-20-03 no objection
29-20-04 no objection
29-20-05 no objection
Judge Muggli MOVED the Statutes Considered be accepted as listed on this Note (dated 6/12/72). The motion was seconded by Judge Smith and CARRIED.
Judge Muggli MOVED the adoption of the Explanatory Note to Rule 12.2 as amended. Seconded by Judge Smith. Question was called and the motion CARRIED.
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RULE 15
The Committee then took up consideration of Rule 15, Depositions. Mr. Travis referred to the memo dated 2 March 1972 (which had been distributed at a previous meeting) which reflects the results of a discussion that he had had with Judge Ilvedson, who is sponsor for Rule 15. The memo reflected Judge Ilvedson's approval of the Rule but suggested a few changes. The memo also expressed Judge Ilvedson's desire that the Committee proceed with consideration of the Rule in spite of the fact that he would not be present.
Mr. Travis pointed out that the Rule was set out in the legislative format to indicate the proposed changes in the Federal rule. The language circled in subdivisions (a) and (b) were the changes suggested by Judge Ilvedson. At the Chairman's request, Mr. Travis then read Rule 15 and the proposed Explanatory Note, which follow.
(a) When (((and How))) Taken.
(((If it appears that a prospective witness may be unable to attend or prevented from attending a trial or hearing, that his testimony is material, and that it is necessary to take his deposition in order to prevent a failure of justice, the court at any time after the filing of an indictment or information may upon motion of a defendant or the prosecutor and notice to the parties order that his testimony be taken by deposition and that any designated books, papers, documents, or tangible objects,))) Whenever, due to a special circumstances of the case, it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court upon motion of the party and notice to the parties, may order that testimony of the witness be taken by deposition and that any designated book, paper, document, record, recording or other material not privileged, be produced at the same time and place. If a material witness is committed (((for failure to give bail to appear to testify at a trial or hearing))) to custody and fails to comply with the conditions of release pursuant to Rule 46(d), the court on written motion of the witness, or on its own motion, and upon notice to the parties(((,))) may direct that (((his))) a deposition be taken. After the deposition has been subscribed the court may discharge the witness.
(b) Notice of Taking.
(((The))) A party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition. The notice shall state the name and address of each person to be examined. On motion of a party upon whom the notice is served, the court for cause shown may extend or shorten the time or change the place for taking the deposition. (((The court may designate some other place for the taking of the deposition if the substantial rights of the defendant will not be affected thereby.))) The officer having custody of a defendant shall be notified of the time and the place set for the examination and unless the defendant waives in writing the right to be present, shall produce him at the examination and permit him to confront any witness during the examination. A defendant, not in custody, shall be informed of his right to be present at the examination subject to terms as may be fixed by the court, but his failure, absent good cause shown, to appear after notice and tender of expenses [in accordance with subdivision (c) of this Rule] constitutes a waiver of that right and any objection to the taking and use of the deposition based on that right.
(c)(((Defendant's Counsel and))) Payment of Expenses.
(((If a defendant is without counsel the court shall advise him of his right and assign counsel to represent him unless the defendant elects to proceed without counsel or is able to obtain counsel. If it appears that a defendant at whose instance a deposition is to be taken cannot bear the expense thereof,))) Whenever a deposition is taken at the instance of the prosecution, or whenever a deposition is taken at the instance of a defendant who is unable to bear the expense of the taking of the deposition, the court (((may))) shall direct that (((all))) the expenses of travel and subsistence of the defendant and (((the defendant's))) his attorney for attendance at the examination shall be paid (((as provided by the law))) by the government. (((In that event payment shall be made accordingly upon approval of the court.)))
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(d) How Taken.
Subject to such additional conditions as the court shall provide, a deposition shall be taken and filed in the manner provided in civil actions except as otherwise provided in these Rules, but (1) in no event shall a deposition deposition be taken of a party defendant without his consent, and (2) the scope and manner of examination and cross-examination shall be such as would be allowed in the trial itself. (((The court at the request of a defendant may direct that a deposition be taken on written interrogatories in the manner provided in civil actions.))) The prosecution shall make available to the defendant or his counsel for examination and use at the taking of the deposition any statement of the witness being deposed which is in the possession of the prosecution and to which the defendant would be entitled at the trial.
(e) Use.
At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used (((if it appears: (1) the witness is dead, or (2) the witness is unable to attend or testify because of sickness or infirmity, or (3) the party offering the deposition has been unable to procure the witness' attendance by subpoena, or (4) the witness is out of the state, his presence cannot be secured by subpoena or other lawful means, and his absence was not procured by the party offering the deposition.))) as substantive evidence if the witness is unavailable, as defined in subdivision (g), or the witness gives testimony at the trial or hearing inconsistent with his deposition. Any deposition may also be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. If only a part of a deposition is offered in evidence by a party, an adverse party may require him to offer all of it which is (((competent and))) relevant to the part offered(((,))) and any party may offer other parts.
(f) Objections to (((Admissibility))) Deposition Testimony.
Objections to (((receiving in evidence a deposition or part thereof may be made as provided in civil actions))) deposition testimony or evidence or parts thereof and the grounds for the objection shall be stated at the time of the taking of the deposition.
(g) Unavailability.
"Unavailable as a witness" includes situations in which the declarant is:
(1) exempted by ruling of the judge on the ground of privilege from testifying concerning the subject matter of his statement; or (2) persistent in refusing to testify despite an order of the judge to do so; or (3) unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or (4) absent from the hearing and beyond the jurisdiction of the court to compel appearance and the proponent of his statement has exercised reasonable diligence but has been unable to procure his attendance.
(h) Deposition by Agreement not Precluded.
Nothing in this Rule shall preclude the taking of a deposition orally or upon written questions, or the use of a deposition, by agreement of the parties with the consent of the court.
Explanatory Note
Rule 15 controls with respect to the taking of depositions in criminal cases within the state and is a restatement of existing law to the extent that it permits the defendant to petition the court for an order to take the deposition of a material witness in his behalf. The scope of the provisions for the taking of depositions is broadened under the Rule to authorize the taking of depositions by the prosecution. The function to be served by the criminal deposition is not the discovery of information, but merely the preservation of evidence. The fact that depositions in civil litigation may be taken as a matter of right at the instance of any party and may be for discovery or to obtain evidence, points up the important differences between Rule 15 and Rule 26 (Depositions Pending Action) of the North Dakota Rules of Civil Procedure.
In order to obtain a court order for the taking of a deposition in a criminal case, the moving party must establish: (1) that the prospective
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witness may be unable to attend or is prevented from attending a trial or hearing; (2) that the testimony of the witness is material; and (3) that it is necessary to take the deposition of a witness in order to prevent a failure of justice. All three of these conditions must be met for the motion to be granted; if they are not the motion will be denied.
The Advisory Committee Note for the Proposed Federal Rules, April 1971 (52 F.R.D. 442), provides in part that;
"The proposed revision of rule 15 authorizes the taking of depositions by the government. ***
"The revision is similar to Title VI of the Organized Crime Control Act of 1970. The principal difference is that Title VI (18 U.S.C. §3503) limits the authority of the government to take depositions to cases in which the Attorney General certifies that the 'proceeding is against a person who is believed to have participated in an organized criminal activity.' This limitation is not contained in proposed rule 15."
Subdivision (a) provides that the prosecution as well as the defendant is entitled to take a deposition. The phrase "whenever due to special circumstances of the case it is in the interest of justice", is intended to make clear that the decision by the court as to whether to order the taking of the deposition shall be made in the context of the circumstances of the particular case. An important factor for consideration is whether a deposition will expedite, rather than delay, the administration of criminal justice. Also important is the presence or absence of factors which determine the use of a deposition at the trial, such as the agreement of the parties to the use of the deposition; the possible unavailability of the witness; or the possibility that coercion may be used upon the witness to induce him to change his testimony or not to testify. This subdivision also makes implicit that only the "testimony of a prospective witness of a party" may be taken. This refers to the party's own witness and does not authorize the discovery deposition of an adverse witness. The language "for use at trial" is intended to give further emphasis to the importance of the criteria for use specified in subdivision (e).
Subdivision (b) provides that the defendant who is not held in custody will be informed unequivocally of his right to be present, in every instance, at the examination. This differs from the proposed Federal rule (see 52 F.R.D. 438) which provides that the defendant (not in custody) be given the right "if he so requests".
Subdivision (c) is intended to protect the rights of indigent defendants. It differs from the proposed Federal rule in that it makes mandatory, rather than discretionary, the requirement that the court direct that the expenses of travel and subsistence of the defendant and his attorney be paid by the government in cases where the defendant can show to the satisfaction of the court that he is unable to bear such costs.
Subdivision (d) contains the language "except as otherwise provided in these rules", which is intended to make clear that the subpoena provisions of Rule 17 control rather than the provisions of the civil rules. Subdivision (d)(2) contains the phrase "and manner" to emphasize that the purpose of the authorization is not to conduct an adverse examination of an opposing witness.
Subdivision (e) contains the phrase "as substantive evidence" to make clear that the deposition can be used as evidence in chief as well as for purposes of impeachment. Rule 15(e) also makes clear that the deposition can be used as affirmative evidence whenever the witness is available but gives testimony inconsistent with that given in the deposition. A California statute which contained a similar provision was held constitutional in California v. Green, 399 U.S. 149 (1970). The proposal is also consistent with section 8-01(c)(2) of the proposed Rules of Evidence which provide:
"(c) Hearsay. 'Hearsay' is a statement, offered in evidence to prove the truth of the matter asserted, unless ***
(2) Prior Statement by Witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (i) inconsistent with his testimony ***."
Subdivision (f) is intended to insure that a record of the objections and the grounds for the objections is made at the time the deposition is taken
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when the witness is available. Then, if necessary, the witness can be examined further on the point of the objection so that there will be an adequate record for the court's later ruling on the objection.
Subdivision (g) uses the "unavailability" definition of the Proposed Rules of Evidence for the United States District Courts and Magistrates (March 1969), rule 8-01, Definitions.
Subdivision (h) is intended to make clear that the court always has authority to order the taking of a deposition, or to allow the use of a deposition, where there is an agreement of the parties to the taking or to the use of the deposition.
Discussion
After the reading of the Rule, Chairman Erickstad questioned the use of word "shall" in subdivision (c), Payment of Expenses, that "the court shall direct that...". Mr. Travis explained that the word "shall" was inserted here in lieu of the word "may" at Judge Ilvedson's request. Mr. Travis pointed out that the word "may" is used in the proposed Federal rule. Chairman Erickstad indicated that his reason for concern over the word "shall" was due to the exorbitant expenses which could accrue from the taking of a deposition from another country or even from within another state. The Committee agreed to change the word "shall" back to "may", as used in the proposed Federal rule.
Judge Smith indicated that he had compared the Federal draft of Rule 15 (April 1971) to this proposal and he had noticed several minor changes in style. He indicated, for example, in subdivision (b), that the word "the" was changed to "a". Mr. Travis explained that these differences in style were made at an earlier request by Judge Burdick and that he had discussed these changes with Judge Ilvedson, who had found them acceptable.
Chairman Erickstad queried whether any further changes are contained in the rule as proposed. Mr. Travis noted the change in subdivision (b), requested by Judge Ilvedson, to include the words "in writing", the purpose of which was to preclude the defendant from later claiming on appeal that he had made no such waiver.
Chairman Erickstad suggested that the Committee consider each of the subsections separately. Judge Muggli MOVED the adoption of 15(a) with the deletion of the word "material". Motion was seconded by Judge Smith. Judge Muggli explained that his reason for striking the word "material" was due to the difficulty of determining whether or not a particular witness is a material witness. He noted that omitting the word is in agreement with the proposed Federal rule.
Judge Smith questioned the change of the language from "for failure to give bail to appear to testify at a trial or hearing" to "to custody and fails to comply with the conditions of release pursuant to Rule 46(d)". Though the former phrase appears to be general, it actually describes the circumstances under which a witness my be committed, whereas the proposed language fails to reach the issue of why the witness was committed. Judge Smith suggested returning to the original language and adding a provision in the Explanatory Note referring to Rule 46.
Mr. Travis explained that Judge Ilvedson's reasons for changing the provision was that the Rule failed to give the magistrate authority to commit a witness to custody. For consistency, Judge Ilvedson also suggested changing the language of Rule 46(d), Release of material witnesses, to read as follows.
"If a material witness is committed (((for failure to give bail to appear to testify at a trial or hearing,))) to custody and fails to comply with the conditions of release pursuant to Rule 46(d), the court on written motion of the witness or on its own motion and upon notice to the parties may direct that a deposition be taken."
Judge Smith made a SUBSTITUTE MOTION to adopt subdivision (a) using the language of the proposed Federal rule with retention of the phrase "or on its own motion". The sentence would then read, "If a witness is committed for failure to give bail to appear to testify at a trial or hearing, the court on written motion of the witness, or on its own motion, and upon notice to the parties may direct that his deposition be taken." Judge Muggli accepted Judge Smith's amendment to Rule 15(a). Question was called and the motion CARRIED.
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Mr. Travis referred to Section 31-03-20 (Undertaking for appearance of material witness for state--When required--Procedure for requiring.), which makes reference to the requirement that a witness be material, as the basis for Judge Ilvedson's requested change.
It was suggested that the reference to Rule 46(d) and (h) [see page 85 of Preliminary Draft of Proposed Amendments to the Federal Rules, January, 1970] be made in the Explanatory Note to Rule 15 at the end of paragraph 4, which begins "Subdivision (a) provides...".
The Committee RECESSED for coffee. The RECORD notes the arrival of Judge Pearce.
Upon RECONVENING, Judge Muggli MOVED the adoption of subdivision (b); seconded by Judge Smith. Discussion again referred to the proposed inclusion of the words "in writing". Judge Muggli stated that he favored including the words "in writing" in order to avoid later conflict on the question of whether the defendant actually did waive his right to be present.
Referring to the proposed Federal rule (April 1971), Judge Smith explained that there were very few differences and they were not consequential. The question was called on the motion to adopt subdivision (b) as submitted. Vote was unanimous and the motion CARRIED.
Judge Muggli questioned the phrase "by the government" in subdivision (c). Mr. Travis explained that the word "government" was used in this instance instead of the word "prosecution" because "government", rather than the prosecution, is the unit paying the bill.
Judge Muggli MOVED the adoption of subdivision (c), changing the word "shall" to "may". Seconded by Judge Pearce. No further discussion. Question was called and the motion CARRIED.
Judge Smith MOVED the adoption of subdivision (d) as proposed,for purposes of discussion. Seconded by Judge Muggli Judge Smith noted that the only change in the Rule from the proposed Federal rule was use of the word "but", in line 3, in place of the phrase "provided that". The question was called on the motion to adopt subdivision (d). Motion CARRIED by unanimous vote.
Judge Muggli MOVED the adoption of subdivision (e) as submitted. Seconded by Judge Pearce. There was discussion on use of the term "substantive" evidence. The question was called and the motion CARRIED by unanimous vote.
Judge Smith MOVED the adoption of subdivision (f); seconded by Judge Muggli. No discussion and the motion CARRIED unanimously.
Judge Muggli MOVED the adoption of subdivision (g) as proposed;seconded by Judge Pearce. Considerable discussion followed on the present use of Chapter 31-06 NDCC (Depositions in Criminal Actions). It was generally agreed that this chapter was of little use in present practice. Chairman Erickstad suggested that some reference be made in the Explanatory Note to subdivision (g) indicating that the unavailability of a witness is handled by statute in some states and in other states by Rule, such as this.
Judge Smith said that while this is a good rule, another area worth consideration is testimony taken at a preliminary hearing. He added that if the practice at a preliminary hearing were to reduce such testimony to writing and that if the witness became unavailable for trial under this Rule, then his testimony recorded at the preliminary hearing would be usable. He questioned whether this deposition rule would in fact increase or decrease the use of the preliminary hearing.
Judge Muggli suggested that the proposed Rule would serve a dual purpose. First, the state's attorney, before the preliminary hearing, could give notice of the taking of a deposition and depose anyone who he felt might change his story since the court reporter would be available at that time. Secondly, the magistrate would be available at the preliminary hearing to rule on probable questions of evidence.
Judge Erickstad cautioned the Committee on getting too deeply involved in these possibilities. Question was called on the motion to adopt subdivision (g) and CARRIED by unanimous vote.
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Judge Muggli MOVED the adoption of subdivision (h) as proposed.Second by Judge Smith. No discussion. Question was called and the motion CARRIED.
Judge Muggli MOVED adoption of the entire Rule 15 as amended.Seconded by Judge Smith. There was no further discussion and the motion CARRIED.
Rule 15--Explanatory Note
Chairman Erickstad pointed out that due to the revision of subdivision (c) of the Rule, the Explanatory Note would have to be amended. Judge Smith suggested deleting the last sentence of the paragraph beginning "Subdivision (c). . ."
Judge Erickstad referred to the language under subdivision (a), "This refers to the party's own witness and does not authorize the discovery deposition of an adverse witness." He suggested it read "awitness" rather than one's "own witness" and he questioned the origin of the language. Judge Muggli noted, relative to that language, that there is no advance notice as to whose side the witness will be on. Judge Erickstad suggested deleting the sentence.
Judge Smith noted that by deleting that language, subdivision (a) of the Rule would also have to be modified, for consistency, to read "a prospective witness of either party" rather than "a prospective witness of a party".
Mr. Travis pointed out that the language referred to by Judge Erickstad is contained on page 32 of the Proposed Amendments to the Federal Rule, April 1971, and reads;
"Subdivision (a) also makes explicit that only the 'testimony of a prospective witness of a party' can be taken. This means the party's own witness and does not authorize a discovery deposition of an adverse witness. The language 'for use at trial' is intended to give further emphasis to the importance of the criteria for use specified in subdivision (e)."
Judge Pearce emphasized that the use of the deposition in the criminal proceeding is primarily for the preservation of evidence and not for discovery of evidence, as in a civil proceedings.
Judge Smith MOVED to delete everything after the first sentence in the second paragraph on page 2 of the Explanatory Note [the entire paragraph would then read "Subdivision (c) is intended to protect the rights of indigent defendants,"] and to add the reference "See Rule 46 (d) and (h) of these Rules" to the Explanatory Note under subdivision (a). There was no further discussion, question was called and the motion CARRIED unanimously.
Statutes Affected
Judge Muggli suggested that the Committee consider the Statutes Affected
Superseded: Chapter 31-06
Mr. Travis pointed out that the reason for superseding the entire Chapter 31-06 (Depositions in Criminal Actions) was that Rule 15 as adopted is all-encompassing and eliminates the need for statutes relating to taking depositions in criminal proceedings. Judge Muggli MOVED the superseding of Chapter 31-06 (Depositions in Criminal Actions); seconded by Judge Pearce. The question was called and the motion CARRIED.
Considered:
31-03-19 Judge Smith MOVED to omit reference to Section 31-03-19 (Undertaking for appearance of material witness for state who appeared at preliminary examination--Minors.) in the Explanatory Note to Rule 15. Seconded by Judge Muggli. The question was called and the motion CARRIED.
31-03-20, 31-03-21, and 31-03-22 Judge Muggli MOVED that no reference to Sections 31-03-20 (Undertaking for appearance of material witness for state--When required--Procedure for requiring.), 31-03-21 (When confinement of material witness for state permitted.), and 31-03-22 (Conditional examinations of witness.) be made in the Explanatory Note to Rule 15. This was seconded by Judge
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Pearce. The motion CARRIED. [NOTE: The above statutes should be considered under Rule 46.]
31-03-23 and 31-03-24 Judge Smith then indicated that Sections 31-03-23 (Forfeiture of undertaking by witness.) and 31-03-24 (Fees for witnesses who have been confined may be allowed--Amount allowable.) should also be considered with this group.
Judge Smith then made reference to sections 31-03-25 through 31-03-31. Referring to these sections as the Uniform Act to Secure Attendance of Witnesses from without a State in Criminal Proceedings, Judge Smith indicated that they were very useful. He therefore suggested that these statutes should be retained as Considered under Rule 17 and requested the staff to draw the Committee's attention to these statutes at the appropriate time.
31-04-03 It was felt that Section 31-04-03 ("Deposition" defined.) should be retained.
Discussion ensued as to consideration of the entire Chapter 31-04. It was pointed out that the entire Chapter deals with general judicial proof and does not conflict with Rule 15. Judge Smith MOVED to list the entire Chapter 31-04 as Considered; seconded by Judge Muggli. It was noted that Chapter 13-04 is also listed as considered under Rule 26. There was no further discussion, the question was called and the motion CARRIED.
Judge Muggli then MOVED to adopt the entire Explanatory Note as amended. Motion was seconded by Judge Pearce. Question was called and the motion CARRIED unanimously.
The Committee RECESSED for lunch. The Committee RECONVENED at 1:30 with the same members present--Judges Erickstad, Muggli, Pearce and Smith; and staff members Travis, Louwagie, and Fischer.
RULE 16
The Committee took up consideration of Rule 16 (Discovery and Inspection), proposed by Judge Murray. Mr. Travis made preparatory remarks, noting that the Rule is presented as it was adopted in December of 1968. He also noted that the Federal Committee on Rules of Practice and Procedure (Proposed Amendments, January 1970) has recommended changes to Rule 16 (see 48 F.R.D. 587). Specifically, the amendment would permit the prosecution greater latitude in discovery. The Advisory Committee proposed two alternative proposals: the first, which is similar to Rule 16 below, permits the prosecution to obtain discovery in areas where the defendant has initiated discovery proceedings, or "opened the door", thereby waiving his Fifth Amendment rights; the other alternative would permit the prosecution to request discovery without any prior discovery on the part of the defendant. Mr. Travis further noted that in the Rule as adopted 12/68, the word "government" appears in many instances (when referring to prosecution) and that for consistency with the remaining rules, the word "government" should be changed to "prosecution". The meanings of the words "government" and "prosecution" are overlapping but "government" has the broader connotation.
Judge Muggli requested that the Rule be read for the benefit of the Committee, with the accompanying Explanatory notes. It was read, as follows.
Rule 16. Discovery and Inspection. [adopted 12/11/68]
(a) Defendant's Statements; Reports of Examinations and Tests;
Defendant's Grand Jury Testimony.
Upon motion of a defendant the court may order the prosecuting attorney to permit the defendant to inspect and copy or photograph any relevant (1) written or recorded statements or confessions made by the defendant, or copies thereof, within the possession, custody, or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney; (2) results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession, custody, or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney; and (3) recorded testimony of the defendant before a grand jury.
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(b) Other Books, Papers, Documents, Tangible Objects or Places.
Upon motion of a defendant the court may order the prosecuting attorney to permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings, or places, or copies or portions thereof, which are within the possession, custody, or control of the government, upon a showing of materiality to the preparation of his defense and that the request is reasonable. Except as provided in subdivision (a)(2), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by government agents in connection with the investigation or prosecution of the case, or of statements made by government witnesses or prospective government witnesses (other than the defendant) to agents of the government except as provided in subdivision (h) of this rule.
(c) Discovery by the Government.
If the court grants relief sought by the defendant under subdivision (a) (2) or subdivision (b) of this rule, it may, upon motion of the government, condition its order by requiring that the defendant permit the government to inspect and copy or photograph scientific or medical reports, books, papers, documents, tangible objects, or copies or portions thereof, which the defendant intends to produce at the trial and which are within his possession, custody, or control, upon a showing of materiality to the preparation of the government'scase and that the request is reasonable. Except as to scientific or medical reports, this subdivision does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant, or his attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant, or by government or defense witnesses, or by prospective government or defense witnesses, to the defendant, or his agents or attorneys.
(d) Time, Place, and Manner of Discovery and Inspection.
An order of the court granting relief under this rule shall specify the time, place, and manner of making the discovery and inspection permitted and may prescribe such terms and conditions as are just.
(e) Protective Orders.
Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. Upon motion by the governmentthe court may permit the government to make such showing, in whole or in part, in the form of a written statement to be inspected by the court in camera. If the court enters an order granting relief following a showing in camera, the entire text of the government'sstatement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal by the defendant.
(f) Time of Motion.
A motion under this rule may be made before or within 10 days after a plea is entered or at such reasonable later time as the court may permit. The motion shall include all relief sought under this rule. A subsequent motion may be made only upon a showing of cause why such motion would be in the interest of justice.
(g) Continuing Duty to Disclose; Failure to Comply.
If, subsequent to compliance with an order issued pursuant to this rule, and prior to or during trial, a party discovers additional material previously requested or ordered which is subject to discovery or inspection under the rule, he shall promptly notify the other party or his attorney or the court of the existence of the additional material. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems just under the circumstances.
(h) Demands for production of statements and reports of witnesses.
(1) In any criminal prosecution no statement or report in the possession of the government which was made by a governmentwitness or prospective government witness (other than the defendant) to an agent of
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the government shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.
(2) After a witness called by the prosecuting attorney has testified on direct examination, the court shall, on motion of the defendant, order the prosecuting attorney to produce any statement (as hereinafter defined) of the witness in the possession of the government which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.
(3) If the prosecuting attorney claims that any statement ordered to be produced under this section contains matter which does not relate to the subject matter of the testimony of the witness, the court shall order the prosecuting attorney to deliver such statement for the inspection of the court in camera. Upon such delivery the court shall excise the portions of such statement which do not relate to the subject matter of the testimony of the witness. With such material excised, the court shall then direct delivery of such statement to the defendant for his use. If, pursuant to such procedure, any portion of such statement is withheld from the defendant and the defendant objects to such withholding, and the trial is continued to an adjudication of the guilt of the defendant, the entire text of such statement shall be preserved by the government and, in the event the defendant appeals, shall be made available to the appellate court for the purpose of determining the correctness of the ruling of the trial judge. Whenever any statement is delivered to a defendant pursuant to this section, the court in its discretion, upon application of said defendant, may recess proceedings in the trial for such time as it may determine to be reasonably required for the examination of such statement by said defendant and his preparation for its use in the trial.
(4) If the prosecuting attorney elects not to comply with an order of the court under paragraph (2) or (3) hereof to deliver to the defendant any such statement, or such portion thereof as the court may direct, the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.
(5) The term "statement", as used in paragraphs (2), (3), and (4) of this subdivision in relation to any witness called by the prosecuting attorney, means:
(i) a written statement made by said witness and signed or otherwise adopted or approved by him; or
(ii) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the governmentand recorded contemporaneously with the making of such oral statement.
Explanatory Note
Rule 16 is an adaptation of Rule 16 of the Federal Rules of Criminal Procedure as amended in 1966. Prior to the adoption of this Rule, discovery proceeded on an informal basis. The only requirement placed upon the prosecutor was the constitutional imperative that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to the guilty or punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 83 S.Ct. 1194 1196-1197, 373 U.S. 83, 104, 10 L.Ed. 2d 215 (1963).
Material discoverable by the defense under the Rule is described in the first two subdivisions. The court, under subdivision (a), is authorized to order the prosecuting attorney to permit the defendant to inspect and copy or photograph three different types of evidentiary material; (1) relevant written or recorded statements or confessions made by the defendant, or copies thereof;
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(2) results or reports of physical or mental examinations and of scientific tests or experiments (including fingerprint and handwriting comparisons) made in connection with a particular case, or copies thereof; and (3) relevant recorded testimony of the defendant before grand jury. If the motion is granted the defendant is entitled to the specified items "within the possession, custody, or control of the government, the existence of which is known or by the exercise of due diligence may become known to the prosecuting attorney". To obtain discovery under subdivision (a) the defendant must show that the above-sought items are "relevant", in contrast to the showing of materiality and reasonableness necessary under subdivision (b).
A general motion, substantially in the language of the Rule, is sufficient to place upon the prosecuting attorney the burden of producing the relevant materials of which he has knowledge, or could in the exercise of due diligence, obtain knowledge. [United States v. Lewis, D.C.N.Y., 266 F.Supp. 897, 898 (1967)]
Under subdivision (b) discoverable material includes "books, papers, documents, tangible objects." The burden upon the prosecution under this subdivision merely refers to the production of items "within the possession, custody or control of the government". A stricter burden upon the prosecution is not required hereout, rather, the burden is upon the defense to show materiality to the preparation of the defense's case and that the request is reasonable. The Advisory Committee Note to the 1966 amendment of Rule 16(b) states in part;
"The requirement of reasonableness will permit the court to define and limit the scope of the government's obligation to search its files while meeting the legitimate needs of the defendant. The court is also authorized to limit discovery to portions of items sought."
Subdivision (b) contains two important limitations to its otherwise broad discovery provisions. First, it is expressly provided that the discovery or inspection of statements made by prosecution witnesses or prospective witnesses to government agents is not authorized except as provided under subdivision (h) this Rule. Secondly, the Rule does not authorize discovery or inspection of reports, memoranda, or other internal government documents in connection with the investigation or prosecution of the case (the "work-product" of the prosecution).
Subdivision (c) provides for reciprocal discovery by the prosecution. The court has discretion, on motion of the prosecution, to grant discovery of evidence the defense intends to produce at trial. The constitutional question relative to violations of the privilege against self-incrimination is generally overcome by the language of Justice Traynor in Jones v. Superior Court, 22 Cal.Rptr. 879, 372 P. 2d 919-922 (1962), in which the judge said, that such discovery does not violate the privilege against self-incrimination since "it simply requires the petitioner to disclose information that he will shortly reveal anyway". The test for discovery, with one exception, under subdivision (c), is parallel to the scope of discovery permitted the defendant under subdivision (a)(2) and (b) of this Rule; that such materials are within the possession, custody or control of the defense, that there is a showing of materiality to the preparation of the government's case, and that the request is reasonable. The exception or limitation, of materials subject to discovery, relates to that which the defendant intends to produce at trial. It is noted above this limitation is the central argument in support of the constitutionality of this provision.
Another important limitation of discovery under subdivision (b) is that the privilege is conditional upon the defendant having been granted relief under subdivision (a)(2) or subdivision (b) of this Rule. Thus if the defendant seeks no discovery the government can have no discovery [see Wright, Federal Practice and Procedure: Criminal §255, p. 521].
Subdivision (d) simply provides that when the court grants discovery, it shall specify in the order, the time, place, and manner of making the discover and inspection permitted, and may prescribe such terms and conditions as are just.
Subdivision (e) permits the court upon a sufficient showing to order that discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. In determining whether to make such protective order the court will take into consideration such matters as the safety of the witnesses and others, a particular danger of perjury or witness intimidation, protection of information vital to the national security, and the protection of business enterprises from economic reprisals. The burden is upon the prosecution to make sufficient showing for the denial, restriction, or deferment of discovery.
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Subdivision (g) imposes a continuing obligation on a party who has already complied with a discovery order. The duty provided is to notify the other party, his attorney, or the court of the existence of material. A motion may then be made pursuant to the notification by the party receiving such notification for additional discovery and where the existence of the material is disclosed shortly before or during the trial for any necessary continuance.
Subdivision (g) also contains sanctions for failure to comply with Rule 16 or with an order made pursuant to it. Three specific alternatives are provided if it is brought to the attention of the court that a party has failed to comply with Rule 16 or with an order issued pursuant to the Rule. The Court may (1) order the delinquent party to permit the discovery or inspection of materials not previously disclosed; (2) grant a continuance; or (3) prohibit the party from introducing evidentiary material not disclosed. In addition to these alternatives, the court has wide discretion to enter any other order "it deems just under the circumstances". The discretionary provision permits the court to consider the reasons why disclosure was not made, the extent of the prejudice, if any, to the opposing party, the feasibility of rectifying that prejudice by continuance, and any other relevant circumstances.
Subdivision (h) of this Rule is adapted from Title 18, U.S. Code, Section 3500, also known as the Jenks Act, which is based on the opinion handed down by the U.S. Supreme Court in the case of Clinton E. Jenks v. United States, 77 S.Ct. 1007 (1957). This bill was designed to preserve the rights of a defendant under due process of law and to make certain that the decision in the Jenks case is not misinterpreted by the courts, lawyers, or defendants as exposing government files in a manner which the Supreme Court, in Gordon v. United States, 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447, called "any broad or blind fishing expedition among documents possessed by the government on the chance that something impeaching might turn up". 1957 U.S. CCNA 1862.
It is the intention of this provision to provide only for the production of written statements previously made by a prosecution witness in the possession of the government which are signed by him or otherwise adopted or approved by him and any transcripts or recordings of oral statements made by the witness to a law enforcement officer, relating to the matter to which the witness has testified. This provision is not intended to be interpreted as a provision for the production of entire investigative files, grand jury testimony, or similar materials. Under this provision a defendant on trial in a criminal prosecution is entitled to relevant and confidential reports and statements in the possession of the prosecution, touching the events and activities as to which a prosecution witness has testified at the trial, but excluding such matter which is within any valid exclusionary rule. This provision is further intended to protect individual rights during criminal prosecutions and to protect confidential information in the possession of the prosecution.
Subsections (2) and (5) of subdivision (h) read together expressly authorize production, at the trial, of statements that are authenticated (either in writing and signed or otherwise adopted or approved by the witness or that are a substantially verbatim recital of an oral statement made by the witness to the government). Section (1) prohibits the inspection before trial of any statement or report made by prosecution witness to an agent of the government. Since the definition in section (5) expressly does not apply to section (1), this prohibition against pretrial inspection applies to unauthenticated* statements as well as to those which are authenticated*.
It should be pointed out, however, that Brady v. Maryland, 373 U.S. 83, 10 L.Ed. 2d 215, 83 S.Ct. 1194 (1963), and Giles v. Maryland, 386 U.S. 66, 17 L.Ed. 2d 737, 87 S.Ct. 793 (1967) may require a production of statements of witnesses and potential witnesses at different times under different circumstances than are specified in the above Rule.
Discussion
The Committee considered the meanings of the term "government" and the term "prosecution". Judge Pearce cautioned against construing the term "prosecution" narrowly. He noted that when considering the language of the Rule (which imputes knowledge of certain evidentiary material) that the language may permit the prosecutor to refrain from complying with the rule by alleging that the evidentiary material is not within his immediate control.
*The Committee considered use of the words "unauthenticated" and "authenticated" and agreed that these words should be changed to "unsigned" and "signed", respectively
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Judge Muggli MOVED that wherever the word "government" appears in the Rule, it be change to read "prosecution" unless the word "government" is found by the Committee to be more appropriately used. Judge Muggli later WITHDREW this motion.
Judge Muggli suggested that the Committee use either the word "prosecution" or the word "government" consistently. He suggested the use of the word "prosecution" and recommended that an explanation be included in the Explanatory Note of the Committee's intent with regard to the meaning of the word.
Chairman Erickstad suggested considering the statutes affected before coming to a decision on the Rule and the Explanatory Note.
Statutes Affected
Considered:
27-05-07 (Purposes for which district courts always open)
29-11-57 (Names of witnesses to be endorsed on indictment or information.) 29-13-04 (How arraignment made.)
29-18-01 (Prosecution to be dismissed, conditions requiring)
All these statutes were felt to have no relevance to the Rule and Judge Muggli MOVED to delete reference. Motion was seconded and CARRIED unanimously. The staff noted that it was of the opinion that the statutes had no relevance to the Rule; however they were included among the author's notes and thus were included for the Committee's consideration.
Judge Muggli then MOVED that Rule 16 together with the Explanatory Note be adopted with the intention that the question of use of the term "prosecution" or "government" be placed on the agenda for the next meeting. Motion was seconded. Vote was taken; the motion CARRIED by unanimous vote.
RULE 17
The Committee took up consideration of Rule 17 (Subpoena), authored by Judge Muggli. The staff noted that the Rule was substantially the same as was adopted in 1968, with some style changes made by Judge Burdick with the consent of Judge Muggli. Judge Muggli then read subdivision (a) of the Rule together with the explanatory note thereto, as follows.
Subdivision (a)
(a) For Attendance of Witnesses and Production of Evidence; Form; Issuance.
(1) Every subpoena shall be issued by the magistrate or the clerk of court, shall state the name of the court and the title of the action, and shall command each person to whom it is directed to attend and give testimony at a time and place therein specified. The clerk or magistrate shall issue a subpoena, or a subpoena for the production of documentary evidence or objects, signed but otherwise in blank, to a party requesting it, who shall fill it in before service.
(2) A subpoena, or a subpoena for the production of documentary evidence or objects, may also be issued by the attorney for a party to any (((action or))) proceeding in the name of the court in like manner and with the same effect as if issued by the clerk or magistrate. Such subpoena shall be subscribed in the name of the attorney, together with his office address, and shall identify the party for whom he appears.
Explanatory Mote
Rule 17 follows the Federal Rule in substance and controls with respect to all subpoenas in criminal cases issued by the courts of this state. Rule 17 also conforms substantially with Rule 45 of the N.D. Rules of Civil Procedure with two exceptions:
1) The provision for defendants unable to pay [17(b)] which was added to conform to the Federal Rules, and
2) Place of service [17(e)].
The rule is not limited to subpoena for the trial. A subpoena may be issued for a preliminary hearing, in aid of a grand jury investigation, or in a deposition, or for a determination of an issue of fact raised by a pretrial motion. This Rule is also intended to obtain witnesses and documents for use as evidence, although it is not a discovery device.
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Rule 17(a)(1) follows the Federal Rule except that subpoenas may be issued by the magistrate as well as the clerk of court. The fact that some of the lesser state courts are without the benefit of a clerk necessitates this requirement.
Rule 17(a)(2) follows Rule 45(a)(2) of the N.D. Rules of Civil Procedure and provides that an attorney for a party may issue subpoenas for production of documentary evidence or objects with the same effect as if issued by the clerk or magistrate.
Disc: Judge Muggli MOVED adoption of subdivision (a) and the Explanatory Note for (a). Motion was seconded by Judge Pearce. No further discussion and the motion CARRIED by unanimous vote.
Judge Muggli read subdivision (b) and the explanatory note thereto, as follows.
Subdivision (b)
(b) Defendants Unable to Pay.
The court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense. If the court orders a subpoena to be issued, the costs incurred by the process and the fees of the witness so subpoenaed shall be paid in the same manner in which similar costs and fees are paid in the case of a witness subpoenaed in behalf of the prosecution.
Explanatory Note
Rule 17(b) follows Federal Rule 17(b). There is no similar provision in the N.D. Rules of Civil Procedure. Rule 17(b) serves two purposes. It provides a means by which the defendant unable to pay witnesses fees and travel costs may have persons subpoenaed. If a subpoena is issued under this Rule, the fees and costs are paid in the same manner as in the case of a witness subpoenaed by the prosecution. The Rule also provides, to an extent not clearly defined, that the defendant who is unable financially to secure the services of an expert witness may have same at the expense of the state.
Disc: Judge Muggli MOVED the adoption of subdivision (b) of the rule and the explanatory note, with the deletion of the last sentence of the Explanatory Note. Seconded by Judge Pearce. The motion CARRIED.
Judge Muggli read subdivision (c) of the Rule and the Explanatory Note, as follows.
Subdivision (c)
(c) For Production of Documentary Evidence and of Objects.
A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or other objects thereindesignated (((therein))). The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents, or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time (((when))) they are to be offered in evidence and may upon their production permit the books, papers, documents, or objects or portions thereof to be inspected by the parties and their attorneys.
Explanatory Note
Rule 17(c) follows Federal Rule 17(c) and is similar to Rule 45(g) of the N.D. Rules of Civil Procedure. Rule 17(c) authorizes issuance of a subpoena duces tecum in a fashion quite similar to the corresponding Civil Rule [Rule 45(b)]. [Note: The third sentence of the Criminal Rule 17(c) has no counterpart in the Civil Rule 45(b).] Rule 17 generally is available to any "party" and this is no less true of 17(c). Thus the prosecution as well as the defendant may use the Rule, subject to the limitations imposed by the Fourth and Fifth Amendments.
Disc: Judge Muggli MOVED adoption of the above two paragraphs.Seconded by Judge Smith. Question was called and the motion CARRIED.
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Judge Muggli read subdivision (d) together with the explanatory note thereto as follows.
Subdivision (d)
(d) Service.
(1) A subpoena may be served by any peace officer or any other person who is not a party and who is not less than 18 years of age. Service of a subpoena shall be made by delivering a copy thereof to the person named and by tendering to him the fee for (((1))) oneday's attendance and the mileage allowed by law. Fees and mileage need not be tendered to the witness upon service of a subpoena issued in behalf of the prosecution or in behalf of a defendant unable to pay, pursuant to Rule 17(b).
(2) If either party to an action shall deposit with the sheriff traveling fees and fees for (((1))) one day's attendance of any witness, a subpoena for (((such))) that witness, and a written demand that (((such))) that witness be served by mail, telegraph, or telephone, the sheriff shall serve and make return of such subpoena by:
(((1.))) (i) Registered or certified return receipt requested mail.
(((2.))) (ii) Telegram to the witness, setting forth the subpoena in full, and the sheriff shall demand from the telegraph company a service message showing the delivery or non-delivery of such telegram and such officer, upon receipt of such message, shall make his return accordingly. Such service message, if it shows delivery, shall be prima facie evidence of such service(((;))). Or,
(((3.))) (iii) Reading the subpoena over the telephone to the person to be served and if the person upon whom service is made shall acknowledge his identity over the telephone to officer making the service, such acknowledgment shall be prima facie evidence of service and the officer shall make his return accordingly.
(((No))) A deposit of traveling fees or witness fees shall not be required if such fees are to be paid by this state or any of its political subdivision (((thereof))). If service is made pursuant to the provisions of this section, the sheriff, in lieu of mileage, per diem, and livery, shall (((receive))) be reimbursed for the cost of postage, telegrams, or telephone calls. If the witness so served fails to appear, the sheriff shall return the deposit to the party who made the same.
(3) A witness personally served with a subpoena, except when the fees of such witness are to be paid by this state or any of its political subdivision (((thereof))), may demand his traveling fees and per diem for one day's attendance at the time the subpoena is served upon him, and if (((such))) those fees are not paid the witness (((shall not be))) is not obliged to obey the subpoena. The fact of such demand and nonpayment shall be stated in the return. A witness served with a subpoena by mail, telephone, or telegraph, upon his appearance, may demand and shall receive from the sheriff his traveling fees and per diem for one day's attendance, (((except when))) unless the fees of (((such))) that witness are to be paid by this state or any of its political subdivision (((thereof))).
Explanatory Note
Rule 17(d)(1) follows the Federal Rule 17(d) and also makes reference to Rule 17(b) of the Federal Rules in application to service by defendants unable to pay.
A subpoena will ordinarily be served by a peace officer although Rule 17(d) goes beyond Section 31-03-13 (Service of subpoenas--Proof--Peace officers required to make.) in permitting service by any person who is not a party and who is not less than 18 years of age. Service of a subpoena under the Federal Rule has been held effective only if the fee for one day's attendance and the mileage allowed by law are tendered to the witness when the subpoena is delivered. Fees and mileage need not be tendered if the subpoena is issued in behalf of the state or on behalf of a defendant unable to pay.
Rules 17(d)(2) and 17(d)(3) were adopted from Rule 45(c)(2) and Rule 45(c)(3) respectively of the North Dakota Rules of Civil Procedure.
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Disc: Judge Muggli noted that the Rules are intended to conform as closely as possible or practical with the civil rules and pointed out that subdivision (d) is identical to Rule 45 of the N.D. Rules of Civil Procedure.
Chairman Erickstad questioned why the language of subdivision (d)(1), specifically the words "fees and mileage" and the phrase "or in behalf of a defendant unable to pay, pursuant to Rule 17(b)", was not used in the last paragraph of subdivision (d)(2). Judge Muggli in explanation of this inconsistency referred to subdivision 17(b) [Defendants Unable to Pay], stating that the Rule requires a court order before a subpoena may be issued. He explained that in a situation such as this, the state or an agency thereof would not be required to deposit a sum to pay the witness fee.
Chairman Erickstad's response was that although subdivision (d)(1) is consistent with subdivision (b), in order to retain consistency, the language of 17(d)(1) should be used throughout the Rule.
Judge Smith questioned the interpretation of "traveling fees or witness fees". Judge Muggli responded that mileage is traveling fees and per diem would be the witness fee. In light of this comment, Judge Erickstad questioned the differing language in subdivision (d)(2).
Judge Pearce, suggesting a language change, MOVED to amend the first sentence in subdivision (d)(2) as follows: "If (((either party)))non-indigent defendant to an action shall deposit..."; and to delete the first sentence of the last paragraph of subdivision (d)(2), which reads "A deposit of traveling fees or witness fees shall not be required if such fees are to be paid by this state or any of its political subdivisions."
Chairman Erickstad pointed out that subdivision (d)(3) fails to provide for non-indigent defendants and suggested that a language change might be appropriate to make it consistent with 17(d)(1). Judge Pearce said that, in his opinion, subdivision (d)(3) appears to include the non-indigent defendant.
Judge Muggli pointed out that under subdivision (b) [Defendants Unable to Pay], it would be necessary for an indigent to have a court order to subpoena witnesses, therefore the issue would have knowledge as to the status of the requesting party. If a court order was issued, the issuee would be paid in the same manner as if he were a witness for the prosecution. He added that subdivision (d)(2) was service by registered mail or telephone or telegraph whereas subdivision (d)(3) referred to personal service.
Judge Muggli explained that the language change proposed by Judge Pearce would not provide for an indigent who wants his persons subpoenaed by telephone. He added that under the theory that this fee must be paid by the state (which includes a subpoena by an indigent), Judge Pearce's proposed amendment of subsection (2) likewise would not be needed since this would include indigents without a language change. He suggested returning to the original form, that "A deposit of traveling fees or witness fees shall not be required..."
Judge Pearce agreed and suggested making that sentence conform to subdivision (d)(1), as per Judge Erickstad's suggestion. Judge Pearce then WITHDREW his previous motion and MOVED to amend the first sentence of the last paragraph of (d)(2) to read. "A deposit for fees and mileage shall not be required if such fees and mileage are to be paid by this state or any of its political subdivisions." Judge Muggli seconded the motion.
In further discussion of subdivision (d)(2), Judge Smith questioned use of the phrase "either party", pointing out that the state never had to deposit the fees. He suggested that the words "a defendant" be inserted in lieu of the phrase "either party". This new language was included In Judge Pearce's motion to amend subdivision (d). Judge Muggli, as second to the original motion, agreed to the further amendment.
Judge Smith then pointed out that in the last paragraph of (d)(2), the word "section" in the sentence "If service is made pursuant to the provisions of this section,..." should be changed to "subdivision" for consistency.
Judge Pearce MOVED to amend the language of subdivision (d)(3) to make it consistent with the remainder of the Rule by use of the phrase "fees and mileage" wherever appropriate; seconded by Judge Muggli. Question was called and motion CARRIED.
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Subdivision (d)(3) as corrected would read as follows;
"A witness personally served with a subpoena, except when the fees and mileage of such witness are to be paid by this state or any of its political subdivision, may demand his fee and mileage for one day's attendance at the time the subpoena is served upon him, and if those fees are not paid the witness is not obliged to obey the subpoena. The fact of such demand and nonpayment shall be stated in the return. A witness served with a subpoena by mail, telephone, or telegraph, upon his appearance, may demand and shall receive from the sheriff his fees and mileage for one day's attendance, unless the fees of that witness are to be paid by this state or any of its political subdivision."
Judge Muggli MOVED the adoption of subdivision (d) as amended together with the Explanatory Note. Seconded by Judge Pearce. The question was called and the motion CARRIED.
Judge Muggli read subdivision (e) and the explanatory note thereto.
Subdivision (e)
(e) Place of Service.
(1) In North Dakota.
A subpoena requiring the attendance of a witness at a hearing or trial may be served anywhere within North Dakota.
(2) Witness from Another State.
Service on a witness outside this state shall be made only as provided by law.
Explanatory Note
Rule 17(e) was adopted from the Colorado Rules of Criminal Procedure. Under Chapter 31-03 (Means of Compelling Attendance of Witnesses) of the Code, North Dakota has adopted a Uniform Act to secure the attendance of witnesses from another state in criminal proceedings. Rule 17(e) is so worded as to allow Chapter 31-03 to be used to serve subpoenas on witnesses out of state.
Rule 17(e)(1) permits a subpoena to be served at any place within the State of North Dakota.
Disc: Judge Muggli MOVED adoption of subdivision (e) and the explanatory note. Judge Smith seconded the motion for purposes of discussion.
Judge Pearce questioned the application of this provision of the rule to the municipal court. He indicated that he had never considered that the municipal court had power to subpoena witnesses throughout the state. He explained that it is his belief that he cannot issue an arrest warrant outside of the municipality but that there is no clear statutory dictate either way.
Judge Smith pointed out that the practical consideration is that the magistrate is restrained financially from issuing the subpoena.
Judge Pearce pointed out that if the municipal judge is permitted to issue a subpoena throughout the state, for the sake of consistency he should also be permitted to issue a bench warrant throughout the state. It was pointed out that Rule 4 (Arrest Warrant or Summons on Complaint) as adopted does not restrict the municipal judges' authority to issue a bench warrant to the municipality. Upon reassurance that subdivision (e) would not be a practical problem, Judge Pearce withdrew his objection to subdivision (e).
The question was then called on Judge Muggli's motion to adopt subdivision (e) and CARRIED by unanimous vote.
Judge Muggli then read subdivision (f) and the accompanying Explanatory Note.
Subdivision (f)
(f) For Taking Deposition; Place of Examination.
(1) Issuance.
An order to take a deposition authorizes the issuance by the clerk of court or a magistrate of subpoenas for the persons named or described therein.
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(2) Place.
(((A resident of North Dakota))) A witness whose deposition is to be taken may be required by subpoena to attend (((an examination only in the county wherein he resides or is employed or transacts his business in person))) at any place designated by the trial court.
(((A non-resident of North Dakota may be required to attend in accordance with the law of the state in which he is served.)))
Explanatory Note
Rule 17(f) follows the Federal Rule, with appropriate changes to satisfy the requirements of North Dakota. Rule 17(f)(1) provides that a court order for the taking of depositions gives authority to the clerk of court or magistrate to issue subpoenas for the persons named or described therein.
Rule 17(f)(2) follows the language of the Preliminary Draft of Proposed Amendments to the Federal Rules, April 1971 (52 F.R.D. 447). It provides the court...", with discretion as to where the deposition is to be taken. Similar authority is conferred by Rule 45(d)(2) of the North Dakota Rules of Civil Procedure.
Disc: Judge Erickstad questioned the compatibility of the provision in (f)(1), "An order to take a deposition authorizes the issuance by the clerk of court with the earlier provision of subdivision (a)(2) which authorizes a lawyer to issue a subpoena. Mr. Travis explained that this section was modeled upon the Federal Rule.
Judge Muggli MOVED the adoption of subdivision (f) and the Explanatory Note thereto; seconded by Judge Pearce.
To avoid the ambiguity between subdivision (a)(2) and subdivision (f), Judge Pearce suggested amending subdivision (a)(2) to read, "A subpoena other than a subpoena to secure the attendance of witnesses at a deposition...". With this suggestion in mind, the question was called on the motion to adopt subdivision (f) and CARRIED.
Judge Pearce then MOVED reconsideration of subdivision (a).Seconded by Judge Muggli. The question was called and the motion CARRIED.
Judge Pearce MOVED amending subdivision (a)(2) to read, "A subpoena, other than a subpoena to secure the attendance of a witness for deposition, ..." Seconded by Judge Muggli. The question was called and the motion CARRIED.
Judge Muggli then read subdivision (g) together with the Explanatory Note, as follows.
Subdivision (q)
(g) Contempt.
Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued.
Explanatory Note
Rule 17(g) follows rule 17(b) of the Federal Rules and Rule 45(e) of the N.D. Rules of Civil Procedure. This provision merely restates existing law in that the failure of a person, without adequate excuse, to obey a subpoena may be deemed a contempt of the court from which the subpoena issued.
Disc: Judge Smith MOVED to delete or strike the last two lines of the explanatory note to subdivision (g). The last sentence then read, "This provision merely restates existing law." Seconded by Judge Muggli. No further discussion. The question was called on this amendment and the motion CARRIED.
Judge Muggli MOVED adoption of subdivision (g) together with the Explanatory Note as amended. Seconded by Judge Pearce. Question was called and the motion CARRIED unanimously.
Judge Smith questioned the necessity for that language of the Explanatory Note which reads; "Rule 17(e)(1) permits a subpoena to be served at any place within the state of North Dakota," explaining that this was exactly the language of the Rule. Judge Smith MOVED to delete this phrase. The motion was seconded, question was called and the motion CARRIED.
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Statutes Affected
The Committee considered the statutes affected by Rule 17, as follows.
Superseded:
31-03-04 no objection
31-03-07 no objection
31-03-08 no objection
31-03-09 no objection
31-03-13 no objection
31-03-15 Judge Muggli MOVED to list Section 31-03-15 (Civil penalty for failure to obey subpoena when called for defendant in criminal action.) as Considered. This was seconded by Judge Pearce. Question was called and the motion CARRIED.
Discussion followed on Sections 31-03-19 through 31-03-24. Judge Muggli suggested that these statutes, because they relate to the confinement of a material witness, have nothing to do with Rule 17 (Subpoena). It was agreed that Section 31-03-19 through 31-03-24 should not be considered under this rule, but that action on these statutes be deferred to Rule 46.
31-06-07 no objection [Chapter 31-06 was superseded by Rule 15.]
40-18-09 no objection
Considered:
29-10.1-19 no objection
31-03-01 no objection
31-03-16 no objection
31-03-17 no objection
31-03-18 no objection
Attention focused on Sections 31-03-25 through 31-03-31. It was generally agreed that these statutes should be included as Considered under the Rule. Judge Smith pointed out that Session Law 33, Chapter 217, Section 1 was the source of the statutes on subpoenas.
Judge Muggli then MOVED to adopt Rule 17 as amended together with the explanatory note; seconded by Judge Smith. No further discussion, the question was called, and the motion CARRIED.
RULE 17.1
Rule 17.1 (Pre-trial Conference) was presented as adopted by the Committee In September of 1968. Also submitted to the Committee for consideration was newly proposed Rule 17.1 (Omnibus Hearing and Pretrial Conference). They follow.
Rule 17.1 Pre-trial Conference.
Any time after the filing of the indictment, information, or complaint, the court upon motion of any party or upon its own motion may order one or more conferences to consider such matters as will promote a fair and expeditious trial. At the conclusion of a conference the court shall prepare and file a memorandum of the matters agreed upon. (((No))) An admission(((s))) made by the defendant or his attorney at the conference (((shall))) may not be used against the defendant unless the admissions are reduced to writing and signed by the defendant and his attorney. This rule shall not be invoked in the case of a defendant who is not represented by counsel.
Explanatory Note
Rule 17.1 follows Rule 17.1 of the Federal Rules of Criminal Procedure and is similar in substance to Rule 16 of the North Dakota Rules of Civil Procedure. North Dakota has no similar provision in the N.D. Century Code.
The Rule is designed to provide a method to refine and simplify the issues, resolve procedural problems, provide an atmosphere which will encourage voluntary agreements, and, generally take any other action which will tend to simplify and expedite the trial of such a case. The Rule is implemented only when voluntarily entered into by the defendant when represented by counsel; however, it may legitimately come from the prosecution or the court as well.
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The advisory committee notes to the Federal Rule [U.S.C.A., Title 18, F.R.Crim.P., Rule 17.1, p. 110] provide as follows;
"This new rule establishes a basis for pretrial conferences with counsel for the parties in criminal cases within the discretion of the court. Pretrial conferences are now being used to some extent even in the absence of a rule.
"The rule is cast in broad language so as to accommodate all types of pretrial conferences. As the third sentence suggests, in some cases it may be desirable or necessary to have the defendant present." [See Committee on Pretrial Procedures of the Judicial Conferences of the United States, Recommended Procedures in Criminal Pretrials, 37 F.R.D. 95 (1965).]
Rule 43 of the N.D. Rules of Criminal Procedure provides for the presence of the defendant at every stage of the trial. A written waiver of the defendants presence at pretrial is proper, with the possible exception of capital cases. [See United States v. Sorrentino (3 Cir. 1949), 175 F. 2d 1971, re right to waive public trial.]
PROPOSED RULE 17.1 Omnibus Hearing and Pretrial Conference.
(a) Setting of Omnibus Hearing.
(1) If a plea of guilty is not entered at the arraignment, the court shall set a time for an Omnibus Hearing.
(2) In determining the date for the Omnibus Hearing the court shall allow counsel sufficient time:
(i) to initiate and complete discovery required or authorized under this rule;
(ii) to conduct further investigation necessary to the defendant's case; and
(iii) to continue plea discussion.
(b) Omnibus Hearing.
(1) At the Omnibus Hearing, the trial court on its own initiative(((, utilizing an appropriate check list form, should))) shall proceed in accordance with the following checklist:
(i) ensure that standards regarding provisions of counsel have been complied with;
(ii) ascertain whether the parties have completed the discovery authorized under Rule 16, and if not, make orders appropriate to expedite completion;
(iii) ascertain whether there Are Requests for additional disclosures under Rule 16;
(iv) make rulings on any motions, demurrers or other requests then pending, and ascertain whether any additional motions, demurrers or requests will be made at the hearing or continued portions thereof;
(v) ascertain whether there are any procedural or constitutional issues which should be considered;
(vi) upon agreement of counsel, or upon a finding that the trial is likely to be protracted or otherwise unusually complicated, set a time for a Pretrial Conference under subdivision (c); and,
(vii) upon the accused's request, permit him to change his plea.
(2) Unless the court otherwise directs, all motions, demurrers and other requests prior to trial should be reserved for and presented orally at the Omnibus Hearing. All issues presented at the Omnibus Hearing may be raised without prior notice either by counsel or by the court. If discovery, investigation, or preparation on an evidentiary hearing or a formal presentation is necessary for a fair determination of any issue, the Omnibus Hearing should be continued until all matters are properly disposed of.
(3) Any pretrial motion, request or issue which is not raised at the Omnibus Hearing shall be deemed waived, unless the party concerned did not have the information necessary to make the motion or request or raise the issue.
(4) Stipulations by any party or his counsel should be binding upon the parties at trial unless set aside or modified by the court in the interests of justice
(5) A verbatim record of the Omnibus Hearing shall be made and preserved. This record shall include the disclosures made, all rulings and orders of the court, stipulations of the parties, and an identification of other matters determined or pending.
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(c) Pretrial Conference.
(1) Whenever a trial is likely to be protracted or otherwise unusually complicated, or upon request by agreement of counsel, the trial court may (in addition to the Omnibus Hearing) hold one or more Pretrial Conferences, with trial counsel present, to consider such matters as will promote a fair and expeditious trial. Matters which might usefully be considered include:
(i) making stipulations as to facts about which there can be no dispute;
(ii) marking for identification various documents and other exhibits of the parties;
(iii) waivers of foundation as to such documents;
(iv) excision from admissible statements of material prejudicial to a codefendant;
(v) severance of defendants or offenses;
(vi) seating arrangements for defendants and counsel;
(vii) use of jurors and questionnaires;
(viii) conduct of voir dire;
(ix) number and use of peremptory challenges;
(x) procedure on objections where there are multiple counsel;
(xi) order of presentation of evidence and arguments where there are multiple defendants;
(xii) order of cross-examination where there are multiple defendants; and
(xiii) temporary absence of defense counsel during trial.
(2) Conferences should be recorded. At the conclusion of a conference, a pretrial order, or memorandum of the matters agreed upon, should be signed by counsel, approved by the court and filed, which should be binding upon the parties at trial, on appeal, and in post-conviction proceedings unless set aside or modified by the court in the interests of justice. However, admissions of fact by an accused if present should bind the accused only if included in the pretrial order and signed by the accused as well as by his attorney.
Explanatory Note
Proposed Rule 17.1 Omnibus Hearing and Pretrial Conference.
Rule 17.1 differs substantially from Federal Rule 17.1 in that it incorporates within the rule a new procedure designated as the Omnibus Hearing. This proceeding is designed to serve pretrial needs regardless of whether the given case is expected to proceed to trial. It is intended to serve as an all-purpose hearing, dealing with a wide variety of matters in a greatly simplified, systematic way. Before such hearing, however, counsel will have been given adequate time to work things out for themselves.
The Omnibus Hearing changes existing practices and procedures prior to trial in four aspects: (1) its attempt to bring together at one court appearance as much as possible of the court actions required prior to trial, thus saving all persons concerned time, energy and other resources; (2) its requirement of routine trial court exploration of the claims customarily available to the accused, utilizing a given checklist to ensure, insofar as possible, that none remain unexposed, unnecessarily subjecting the proceedings to subsequent invalidation; (3) its requirement that these customary claims be raised and considered, insofar as possible, without the preparation and filing of papers which so frequently perform no useful function in the proceedings; and (4) its requirement that claims which are available for assertion at this time be waived if not asserted. There are other features within the rule essential to a properly conducted Omnibus Hearing, but it is the combination of these four provisions which renders it unique. (For a similar procedure recently initiated in Minnesota, see State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 141 N.W. 2d 3 (1965).]
Subdivision (a) states the time when the Omnibus Hearing should be held. Subdivision (a)(2) indicates those activities which should be conducted prior to the Omnibus Hearing. Only when these activities have been completed, should the proceeding come under court supervision, in the form of the Omnibus Hearing, as set out in Subdivision (b).
Subdivision (b) sets out the procedures of the Omnibus Hearing, which is characterized by a court hearing or hearings to ensure that discovery has been properly conducted and that issues are simply and efficiently raised. It entails court supervision to ensure that what has been done has been correctly done, and that what needs to be done will be done properly and without unnecessary delay.
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The ABA Minimum Standards for Criminal Justice Relating to Discovery and Procedure Before Trial (Approved Draft, 1970), §5.1 states;
Additional matters ordinarily requiring judicial attention after the discovery and investigation conducted in the first stage are the variety of pretrial motions and other requests that typically suggest themselves to counsel. In order that all of these matters be attended to as expeditiously as possible, the Advisory Committee recommends that as many as practicable be considered at a single hearing and with a minimum of formalities and filings. Because the Committee was not aware of any existing practice where the attempt is regularly made to handle thus the variety of the pretrial questions on a single occasion, the Committee found no existing terminology descriptive of the kind of hearing it here recommends. In recognition that the hearing is intended to serve an unusually wide variety of pretrial procedural purposes, the Advisory Committee denominated it an Omnibus Hearing.***
Subdivision (b)(1) establishes an appropriate check-list which may assist the court in ensuring that consideration is given those issues which, when ignored, typically form the basis for subsequent invalidation of an adjudication of guilt. Subdivision (b)(1)(vi) is important because it establishes the conditions through which a pretrial conference under subdivision (c) will be held.
Subdivision (b)(2) describes the methods recommended for raising issues. It prescribes that the issues may be raised without prior notice either to the court or to the opposing party. This cuts back on the number of required written motions, saving both counsel and the court time and effort.
Subdivision (b)(3) provides that a failure to raise any issue which is then ripe for decision, from the standpoint of available information, should be considered a waiver of such issue. The provision is intended to reduce the number of unnecessary and repetitious hearings and trials. Such a procedure is consistent with the U.S. Supreme Court ruling that if the trial court transcript shows that the accused has been given a full and fair hearing on a particular issue, and that all facts material to the issue have been judicially determined, no additional evidentiary hearing on the issue will be required. Townsend v. Sain, 372 U.S. 293 (1963). And the Court has stated that certain forms of review (i.e., direct review) may be foreclosed pursuant to procedural requirements if those requirements serve "a legitimate state interest." Henry v. Mississippi, 379 U.S. 443 (1965). This provision should be read in light of Rule 41(c) of the Federal Rules of Criminal Procedure which requires that a motion to suppress illegally seized evidence be made before trial if the defendant then has knowledge of the grounds on which to base it. This is,--in the court's own words--"a crystallization of decisions of this Court requiring that procedure, and is designed to eliminate from the trial disputes over police conduct not immediately relevant to the question of guilt." [Jones v. United States, 362 U.S. 257, 264 (1960).] Accordingly, the omnibus procedure has been designed to minimize the number of instances in which the defendant will be unaware of the grounds for making his motions by the time of the Omnibus Hearing and, through the use of the check-list forms, to make it a matter of record that he has been afforded the opportunity.
Subdivision (b)(4) is simply recognition of the fact that pretrial agreements should be adhered to unless justice otherwise requires.
Subdivision (b)(5) provides for a verbatim record and is self-explanatory. Such a record is essential to preclude subsequent quarrels as to what occurred at the hearing.
Subdivision (c) is similar to Rule 17.1 of the Federal Rules of Criminal Procedure. However, under subdivision (c) the pretrial conference is viewed as distinct from the Omnibus Hearing and as a procedural device specifically directed to planning for a trial. This stage of procedure prior to trial should be conducted only in those cases in which there is a reasonable possibility of a trial. Subdivision (b)(1)(vi) states the three situations in which a Pretrial Conference should be held. These are: (1) when the anticipated trial is likely to be protracted; (2) when the anticipated trial is otherwise likely to be complicated; and (3) when counsel concur in requesting the conference. Subdivision (c) differs from the Federal Rule in that it lists several examples of material which could or should be handled at a Pretrial Conference.
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Discussion--Rule 17.1
Judge Muggli pointed out that the Proposed Rule 17.1 would differ substantially from Rule 17.1 (Pretrial Conference), as adopted by the Committee in September of 1968. The new proposal, he pointed out, contains the Omnibus Hearing. He cited an article entitled "Why an Omnibus Hearing?", by Judge Adrian A. Spears, in the May 1972 issue of Judicature magazine. He added that the Omnibus procedure is in use in several of the district courts of the United States, and is presently being used by Judge Bruce Van Sickle in the U.S. District Court for the Western District of North Dakota.
Judge Muggli indicated that he would like to amend the Proposed Rule to give the court discretion on whether or not to hold the Omnibus Hearing rather than leaving the language mandatory as proposed. He suggested, specifically, that the language of subdivision (a) that "the court shall set a time for an omnibus hearing" be changed to "may", to reflect the court's discretion. Judge Muggli said that this would solve his objection to the proposed omnibus hearing.
Mr. Travis then explained that the worksheet used by the Federal District Court of North Dakota to implement the omnibus hearing illustrates the desirability of the omnibus hearing. That is, those lawyers not experienced in criminal procedure are able to proceed according to the prepared checklist, which implements the provisions of Rules 12, 12.1, 12.2, 15, and 16 and thereby insures that their defendants' rights are safeguarded. This would preclude the possibility of later appeals due to the ineffectiveness of counsel.
The Omnibus Hearing also provides the defendant with an opportunity to view evidence available against him, which in many cases has served to induce a guilty plea, thus eliminating the necessity of a later trial.
The Committee RECESSED at 5:05, to reconvene at 9:00 a.m. Tuesday.
Tuesday, June 27
At 9:25 a.m. Judge Erickstad called the meeting to order with the following members in attendance.
Members present:
Hon. Ralph J. Erickstad, Chairman
Hon. Gerald G. Glaser
Hon. Kirk Smith
Hon. Harry J. Pearce (arrived at 10:30)
Mr. John A Graham (arrived 10:40)
Members absent:
Hon Eugene A. Burdick
Hon. Roy A. Ilvedson
Hon. James Morris
Hon. Norbert J. Muggli
Hon. William S. Murray
Mr. Roger Persinger
Mr. Paul M. Sand
Mr. John G. Shaft
Mr. Robert L Vogel
Staff present:
Mr. Charles M. Travis, Criminal Code Reviser
Mr. Joseph H. Louwagie, Assistant Code Reviser
Miss Donna M. Fischer, Secretary
The Committee continued consideration of proposed Rule 17.1 (Omnibus Hearing and Pretrial Conference). Mr. Travis explained that, if adopted, the proposed rule 17.1 would replace 17.1 as previously adopted, which deals only with pretrial conference. The new rule combines the proposed procedure known as the omnibus hearing with the pretrial conference of former Rule 17.1, which becomes subdivision (c).
At Judge Erickstad's request, Mr. Louwagie read Rule 17.1 (Pretrial Conference) as previously adopted together with the Explanatory Note [see pages 20-21 of Minutes]. He then read the proposed Rule 17.1 (The Omnibus Hearing and Pretrial Conference). It was noted that the source of proposed Rule 17.1 is the ABA Standards relating to Discovery and Procedure Before Trial.
Mr. Louwagie explained that the word "shall" was included in 17(a)(1) at the direction of Mr. Sand, who objected to the terminology "should".
Judge Smith suggested making the omnibus hearing mandatory in felony cases and optional in misdemeanor case.
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Mr. Travis explained that the procedure for pretrial discovery, according to the ABA Standards, occurs in three stages: the first is the informal step in which the opposing counsels investigate and discuss the case without active supervision from the court; the second involves the omnibus hearing, which is a voluntary, court-supervised discovery process; and finally, the pretrial conference, which is a court-supervised procedure involving the planning for the anticipated trial.
Judge Glaser MOVED that the word "shall" in line 2 of subdivision (a)(1) be deleted, with the words "may, with agreement of the-parties" inserted in lieu thereof. Seconded by Judge Smith.
The RECORD notes the arrival of Judge Pearce.
Judge Erickstad questioned the language "A verbatim record of the Omnibus Hearing shall be made and preserved," in subdivision (b)(5). After discussion on whether the verbatim record should be required only of the district courts, it was decided that the verbatim record should be required of all courts.
No further discussion. The question was called on the adoption of subdivision (a) as amended. The motion CARRIED.
Judge Glaser pointed out that the word "demurrers" was used in subdivision (b)(1) and (2). He noted that the Committee had previously abolished demurrer within the state by Rule 12 and therefore suggested that the word "demurrers" be stricken from subdivision (b)(1)(iv) and subdivision (b)(2).
Judge Smith then suggested that in subdivision (b)(5), the word "preserved" should be changed to read "transcribed". Discussion ensued as to the consequences of requiring a transcribed record, with the conclusion being made that it is better not to require the record to be transcribed.
The RECORD notes the arrival of John Graham.
Mr. Louwagie cited State v. Tahash, 272 Minn. 539, 141 N.W. 2d 3 (1965), a Minnesota case which adopted a procedure similar to the omnibus hearing. It was pointed out by Judge Erickstad that the Minnesota procedure was narrower in scope than the proposed rule.
Judge Smith MOVED to strike the phrase "on its own initiative" from line 1 of subdivision (b)(1) and to delete the words "demurrers". This was seconded by Judge Glaser. No further discussion, the question was called and the motion CARRIED.
The Committee then took up consideration of subdivision (c) [Pretrial Conference]. Judge Glaser MOVED that the word "should" be changed to "shall" in lines 1, 2, 3, and 7 of subdivision (c)(2).Seconded by John Graham. It was noted that "should" was used because it was adopted from the language of the ABA Minimum Standards, which are drafted in an advisory capacity.
Judge Smith suggested that since the standards are drawn in a different "bend" than the rules, there are certain features of the proposed rule which are substantially different in style from that used in the other rules. For example, under subdivision (c), it is stated that "Matters which might usefully be considered include:", -- and then is listed thirteen subsections. Prior to this, the rules have stated what is included and have not been advisory as to what might be included. In other words, the style of the proposed rule should be changed from an advisory context to mandatory, and if not mandatory, at least should be changed to an affirmative statement rather than advisory.
Mr. Travis suggested eliminating the language "Matters which might usefully be considered..." and the list following from the body of the Rules and including it in the explanatory note. However, Judge Erickstad cautioned this approach stating that it appears that the purpose of the list is to alert the magistrate to matters which might be considered. No further discussion. The question was called on the motion to amend subdivision (c)(2) and the motion CARRIED by unanimous vote.
Judge Smith MOVED that in subdivision (b)(2), line 2, the word "should" be changed to "shall" and in line 7, the word "should" be changed to "may"; and that in subdivision (b)(4), line 1, the word "should" be changed to "shall". Seconded. The motion CARRIED.
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Judge Smith MOVED the adoption of subdivisions (b)(2) and (b)(4) as amended; seconded. The question was called and the motion CARRIED.
The Committee again considered subdivision (c) [Pretrial Conference]. Attention focused on the phrase; "Matters which might usefully be considered include: Judge Glaser suggested deleting that phrase and amending the previous sentence to read; "...to consider such matters as will promote a fair and expeditious trial; including:". This was seconded.
It was decided that the appropriate procedure would be to review the checklist by subsection and amend where necessary.
In subdivision (c)(l)(i), Judge Smith suggested deletion of the phrase "about which there can be no dispute". This was agreeable to the Committee.
In subdivision (c)(1)(ii), Judge Smith suggested striking the words "marking for" and changing it to read; "identification of various exhibits". However, it was noted that the procedure under the list appears to be of starting each subsection with the verb. Therefore, upon reconsideration of subdivision (c)(1)(ii), he proposed the following language, "Marking exhibits", only and to delete the rest.
Subdivision (c)(1)(iii) would be changed to read "waiving foundation as to exhibits."
Subdivision (c)(l)(iv) was amended by deleting the words "excision from admissible statements of" and inserting in lieu thereof the phrase "deleting from statements".
Subdivision (c)(l)(v) ["severance of defendants or offenses"] was left as is.
Subdivision (c)(l)(vi) was changed by deleting the words "seating arrangements for" and inserting the words "arranging for seating of" in lieu thereof.
Considerable discussion ensued as to the meaning of subdivision (c)(l)(vii). An attempt was made to find an explanation for this section in the Minimum Standards, however it proved unsuccessful. Judge Erickstad referred to a report in 37 F.R.D. at page 104-105 (1965), cited in the Standards with commentary, Section 5.4 at page 127 (Discovery and Procedure Before Trial), which contained a similar list and upon which the list in the Rule is based. Subdivision (c)(1)(vii) was amended to read "Examining jurors lists and questionnaires".
Subdivision (c)(1)(viii) was amended to read "instructing as to conduct of voir dire".
Subdivision (c)(1)(ix) was amended to read "deciding the number and use of peremptory challenges".
Subdivision (c)(l)(x) was modified to read "establishing procedure on objections where there are multiple counsel". Judge Erickstad suggested the term "where" refers to geographical location. He suggested substituting the word "when". Subdivision(c)(1)(x) would thus read; "establishing procedure on objections when there are multiple counsel".
Subdivision (c)(1)(xi) was amended to read "establishing order of presentation of evidence and arguments when there are multiple defendants".
Subdivision (c)(1)(xii) was amended to read "establishing order of cross-examination when there are multiple defendants; and".
Subdivision (c)(1)(xii) was amended to read "Providing for necessary temporary absence of defense counsel during trial".
It was suggested that language be included in the rule to provide the defendant with the right to be present at the pretrial conference unless he waives that right. Although it was pointed out that such right exists under Rule 5, it was strongly suggested that language be included to emphasize this right under the rule.
It was pointed out that the language of the Rule under (c)(1), "...the trial court may ... hold one or more pretrial conferences with trial counsel present", implies that the defendant need not be present. To remedy this, Judge Smith suggested amending the last three lines of subdivision (c)(1) to read, "...with
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trial counsel and the defendant present unless the defendant waives his right to be present, to consider such matters as will promote a fair and expeditious trial; including:".
Judge Glaser MOVED to change the word "accused" to "defendant" in subdivision (b)(1)(vii) and in the last three lines of subdivision (c)(2), where it appears.
Judge Glaser pointed out that the phrase "trial counsel" in subdivision (c)(1), line 4, may be deceiving in that in many cases the counsel present at the preliminary hearing might not be the same counsel at the trial. He MOVED that the word "trial" in line 4 of (c)(1) be deleted; motion was seconded and CARRIED by unanimous vote.
The question was then called to adopt subdivision (c) as amended; CARRIED.
Mr. Graham MOVED to amend the language of subdivision (b)(1) to provide for defendants right to be present at the pretrial conference, as follows:
"At the omnibus hearing, the trial court, in the presence of counsel and the defendant, unless he waives his right to be present, shall proceed in accordance with the following checklist:".
The motion was seconded. No further discussion; the question was called and the motion CARRIED.
Judge Smith MOVED the adoption of the proposed Rule 17.1 (Omnibus Hearing and Pretrial Conference), in lieu of Rule 17.1 (Pretrial Conference) as previously adopted. Seconded by John Graham. No further discussion, the question was called, and the motion CARRIED.
The Committee RECESSED for lunch.
The Rules Committee RECONVENED at 1:40 p.m. with the following persons present: Judge Erickstad, Judge Glaser, Mr. Graham, and Judge Smith. Also, three staff members.
Explanatory Note--Rule 17.1
The Committee considered the Explanatory Note to Rule 17.1. It was suggested that the Explanatory Note be amended to conform with the changes in the Rule. It was noted that in addition to the ABA Standards, 37 F.R.D. 95 should be listed in the sources--specifically the form on page 104-105.
Judge Smith MOVED to amend subdivision (b) of the Explanatory Note by adding at the end of the phrase "without unnecessary delay", the following;
"The Omnibus hearing is considered to be a critical stage in the proceedings. The presence of the defendant at the hearing is therefore required unless he waives that right. [See Rule 5]"
This was seconded by John Graham. After discussion on the matter, Mr. Graham withdrew his second.
Judge Smith MOVED the following language be added at the end of the Note to subdivision (c);
"This Rule also requires the defendant's presence unless waived." Seconded by John Graham. Question was called and the motion CARRIED.
Some discussion arose concerning use of the term "recorded" as applied to conferences which require a verbatim transcript, as set out under the first provision of subdivision (c)(2). Judge Erickstad MOVED to amend Judge Smith's motion by adding the phrase "and requires that the conference be recorded verbatim," to emphasize the change made. He noted that this may not require a court reporter as this might be done by tape or recording device. The sentence thus reads, "This Rule also requires the defendant's presence unless waived, and requires that the conference be recorded verbatim." Question was called on a motion to adopt that sentence to subsection (c) of the Explanatory Note and the motion CARRIED.
Judge Smith MOVED to delete all reference to subdivision (b)(4) and subdivision (b)(5) in the Explanatory Note as being unnecessary and redundant. He noted that these two paragraphs add nothing. Mr. Travis explained that the references were made for purposes of consistency and to show that there was no "hidden meaning" to be derived in explanation of this portion of the rule. Judge Smith's motion FAILED for lack of a second.
Judge Smith then MOVED that the language of the Explanatory Note for subdivisions (b)(4) and (b)(5) read that "these subdivisions contain no hidden meaning."
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It was noted that this language would infer that where such terminology is not used, that there is hidden meaning. Paul Sand made a SUBSTITUTE MOTION that reference in the Explanatory Note as now stated for (b)(4) and (b)(5) be deleted; seconded by Judge Smith. Question was called and the motion CARRIED unanimously.
MOTION was made to adopt the Explanatory Note as amended.Seconded. The question was called and the motion CARRIED.
The Committee then considered adoption of the Rule. John Graham MOVED to amend (c)(2) to read "Conferences shall be recorded verbatim." Seconded by Judge Smith. CARRIED.
Judge Glaser MOVED the adoption of Rule 17.1. Paul Sand expressed his displeasure with the change in subdivision (c)(1) of the word "where" to "when", indicating that "where" is the preferred term of art. Question was called on the motion to adopt and the motion CARRIED by unanimous vote.
RULE 18
The Committee next took up consideration of Rule 18 (Place of Trial), as proposed by Paul Sand. Mr. Sand read the proposed Rule and the Explanatory Note, as follows.
Rule 18. Place of Trial.
In all criminal prosecutions, the trial shall be in the county in which the offense was committed, except as otherwise provided by law or by these rules.
Explanatory Note
Rule 18 is an adaptation of Rule 18 of the Federal Rules of Criminal Procedure. It establishes the county in which the offense was committed as the proper place for which the trial should be held. This Rule is consistent with the mandates of the Constitution of the United States, Article III, Section 2 Paragraph 3, and the Sixth Amendment.
The exception clause of the Rule is intended to emphasize the provisions of Rule 19 (Prosecution on Information Outside the County Before any Judge Within Judicial District Without Waiting for Term of Court), Rule 20 (Transfer from the County for Plea and Sentence), and Rule 21 (Transfer from the County or Municipality for Trial). It also relates to existing law (Chapter 29-15, NDCC) which provides for a change of place of trial, change of judge or both. This chapter indicates that jurisdiction to try the case is transferred to the county to which the action is removed.
Disc: Judge Erickstad questioned the phrase in the second line of Rule 18, "except as otherwise provided by law". Judge Smith pointed out that there are a number of statutes that provide for determining the county in which the offense was committed, such as crimes that are committed in an aircraft or on trains or near county lines, which are generally referred to as transient crimes. He said that these statutes were in the nature of conflicts of law relating to the state.
Judge Erickstad suggested reviewing the statutes so that the Committee could familiarize themselves with provisions in the law relating to the Rule.
Statutes Affected:
Sections 29-03-01, 29-03-09, 29-03-15, 29-03-16, 29-03-17, 29-03-18, and 29-03-20 were listed as Superseded. It was felt that they should be listed among those statutes considered by Rule 18.
The remaining statutes in Chapter 29-03 were listed as Considered. The entire chapter would now be listed as Considered under Rule 18. John Graham MOVED that all section references be deleted and that "Chapter 29-03" be inserted in lieu thereof. Seconded by Judge Erickstad.
Section 12-06-03 (Defendant punishable within this state when offense commenced without, but consummated in the state--Jurisdiction.) was noted in discussion.
Question was called on the motion to place Chapter 29-03 as Considered the motion CARRIED unanimously.
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John Graham MOVED to strike the words "by law or" in line 2 of the Rule. Judge Erickstad seconded for purposes of discussion.
Mr. Graham explained that his reason for the motion was that the Rule should state specifically that the trial shall be in the county in which the offense is committed, and that the instances that are defined by law are not necessarily part of the Rule. He stated that the fact that the legislature denotes where a crime is deemed to have occurred, where there is conflict, is not necessarily relevant to the Rule.
There followed considerable discussion on the point, with little agreement being found for Mr. Graham's view. Judge Erickstad suggested that if the Committee agreed with Mr. Graham's proposal, then consistency would require that all those statutes now listed as Considered should be superseded. Judge Erickstad WITHDREW his second to Mr. Graham's motion. The motion DIED for lack of a second.
Judge Smith relinquished the chair temporarily for the purpose of making a motion. The chair was accepted by Judge Erickstad.
Judge Smith MOVED to insert after the phrase "the offense was committed," in line 2, the words "or as otherwise made triable by law or". Mr. Graham seconded the motion for the purposes of discussion.
Judge Smith explained that the language change is intended to answer Mr. Graham's original problem with the language "except as otherwise provided by law or". He stated that the purpose of his proposal was to limit the legislature's involvement to that area in which they are already involved (such as Chapter 29-03).
Paul Sand raised a question concerning the word "trial", in line 1, in relation to the place of trial and the initiation of prosecution.
Judge Glaser suggested beginning the sentence with the language "trial shall be in the county in which the offense is committed". Mr. Travis noted that Rule 18 of the Federal Rules of Criminal Procedure begins, "Except as otherwise permitted by statute or by these rules, the prosecution shall be had...", noting the use of the term "prosecution" rather than "trial" in the Federal Rule. It was noted that the language of this Rule is Rule 32 of the proposed draft of the National Conference of Commissioners on Uniform State Laws, September 8, 1952. The objection noted to the use of the term "prosecution" as opposed to "trial" was that certain procedures relevant to prosecution have not been provided for by rule or by statute and thus may be had in a place other than the place of trial.
Judge Smith noted that he was satisfied that the preliminaries to trial were provided in the earlier rules and he WITHDREW his motion.
Paul Sand MOVED the adoption of Rule 18; John Graham seconded. Question was called and the motion CARRIED by unanimous vote.
It was suggested that the reference to Rule 32, as proposed by the National Conference of Commissioners on Uniform State Laws, be included in the Explanatory Note under Sources.
The Committee RECESSED for coffee.
Rule 18--Explanatory Note
Upon RECONVENING, the Explanatory Note to Rule 18 was discussed. Mr. Graham objected to reference in the Explanatory Note to Article III, Section 2 of the U.S. Constitution as irrelevant. Mr. Graham MOVED that the third sentence of paragraph 1 of the Explanatory Note be deleted. Seconded by Paul Sand. No discussion and the motion CARRIED by unanimous vote.
Mr. Sand then MOVED adoption of the Explanatory Note as amended. Seconded by Mr. Graham. Motion CARRIED unanimously.
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RULE 19
Judge Smith resumed the Chair for consideration of Rule 19, as proposed by Paul Sand. Mr. Sand read the proposed Rule together with the Explanatory Note as follows.
Rule 19. Prosecution on Information Outside of County Before Any Judge Within Judicial District Without Waiting for Term of Court.
(a) Whenever a defendant(((,))) who, after preliminary examination or waiver thereof, is held for trial (((in a county in which a district judge))) where the presiding judge is not conveniently available, desires forthwith to enter a plea of guilty, he may make a written statement to that effect and present it to the state's attorney, who shall present same to any district judge within the judicial district of which such county is a part. (((Such))) The statement (((shall constitute))) constitutes authority for the district judge to order the state's attorney of the county wherein said defendant is being held to (((forthwith))) file forthwith a criminal information against such defendant with the clerk of the district court of such county.
(b) When (((such))) the criminal information is presented to the clerk of district court, as provided for in subdivision (a) of this rule, the clerk shall file same and it shall be as valid as though same were filed in open court during a term for said court duly called and convened. After the information has been filed the state's attorney, with the clerk of court of said county and the defendant, may appear in chambers before any district judge within the judicial district of which said county is a part. (((Said))) That district judge may arraign the defendant, receive the plea of guilty and pronounce final judgment and sentence thereon with the same force and effect as though the same were done in open court in the county in which such information was filed. The clerk of court of the county in which the information was filed shall keep the minutes and records of the proceedings and shall enter judgment and sentence in the records of his office in the same manner as if the proceedings had taken place in his county.
(c) If, upon arraignment without the county as provided for under subdivision (b) of this rule, the defendant does not enter a plea of guilty or does not desire to do so, the defendant may be tried thereafter in the county in which the information was originally filed on such information or on another information filed in term time, as the state's attorney may elect, but the written statement may not be used in any event without the consent of the defendant.
NOTE: The author is not satisfied with the Rule as it is and would like to see it redrafted.
Explanatory Note--Rule 19
Rule 19 bears no relation to Federal Rule 19 which was abrogated in 1966. Rule 19 provides the defendant with an opportunity to plead guilty in the District court without waiting for the county court to being its term. [See Section 27-05-07 (Purposes for which district courts always open--When and where issues of fact triable.), NDCC, which provides that district courts will always remain open.] Thus, a defendant who wishes to enter a plea of guilty does not have to wait until the county court is in session, but may make a written statement to that effect and present it to the state's attorney, who shall present the same to any district judge within the judicial district of which the county is a part. Such statement constitutes the authority for the District Judge to order the state's attorney to the county wherein said defendant is being held, to file forthwith a criminal information against such defendant with the clerk of the District Court of such county.
Subdivision (a) is adapted from Section 29-09-03 (Prosecution on information without waiting for term of court.), NDCC, but differs from that section in that the initiation of the procedure under the Rule is by the defendant rather than by the prosecuting attorney. It provides the defendant who intends to plead guilty with a procedural device with which to speed up the proceeding. In this situation, the defendant who has decided to plead guilty may request in writing that the arraignment, entry of plea, trial or imposition of sentence, take place within another county within the same judicial district. Subdivision (a) must be read in conjunction with Rule 18 (Place of Trial), which provides that the county in which the offense was committed is the proper forum for trial.
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Subdivision (b) is basically the same as Section 29-09-04 (Appearance in court--Chambers--Plea.), NDCC. It provides that when the action is transferred to another county in the same judicial district because of the unavailability of the judge, that the proceedings will be held in the judges chambers, will be recorded, and will have the same force and effect as if they were held in open court In the county in which the original information was filed.
Subdivision (c) provides that a defendant is not obligated by his request for a transfer under subdivision (a). If the defendant decides not to plead guilty, he shall be tried thereafter in the county in which the information was originally filed, on such information, or on another information filed in term time as the state's attorney may so elect. However, the written statement may not be used against the defendant without his prior consent.
Disc: Following the reading, Mr. Sand noted that he would not move adoption of the rule as he was dissatisfied with the language. He noted that earlier he was against having such a rule but had been overruled by the Committee. He said further that he favored a provision which would aid a defendant who would be held for an extended period due to the unavailability of a district judge. He also noted that he was dissatisfied with the concept of the "term" of court. He said that one of the objections to this provision is that it may induce "judge-hunting" by the defendant to find and request the judge within the district with the greatest propensity for meting out light sentences.
In discussion, Mr. Travis noted that he felt that the rule was useless, that there was no comparable Federal rule, and that there are other procedural devices through which the same objective could be achieved. He further stated that the Rule would only add confusion to the over-all concept of the Rules.
Judge Glaser noted that there were instances which required such a provision, as in Section 29-09-03 (Prosecution on information without waiting for term of court.). Judge Erickstad suggested that the rule be redrafted to accomplish the purpose desired by Mr. Sand and at the same time be designed to supersede those statutes which would conflict with the rule as redrafted. He noted that the practical problem as raised by Mr. Travis is that many counties in the state of North Dakota have no district courts available except on term time. In this situation, there is no judge before whom to enter the plea.
It was pointed out that the statutes referred to are often implemented and are very useful.
Judge Glaser referred to Section 29-03-15 as an example. He pointed out that the prisoners of Kidder County are boarded in the Burleigh County jail, which makes Burleigh the more convenient place for the judicial matter to be handled. Therefore, the clerk of the Kidder County court travels to Bismarck and the matter is handled there.
At this time, Mr. Sand proposed new language for Rule 19, which follows.
"Whenever the defendant after having had a preliminary hearing or having waived a preliminary hearing wishes to plead guilty and a judge is not conveniently available, he may make his wishes known to the prosecutor. The prosecutor shall arrange with any judge within the judicial district to accept the plea of guilty and dispose of the criminal matter including the imposition of sentence.
"The prosecutor shall present to the district judge the complete file of the charge against the defendant. On completion of the matter, the file shall be returned to the clerk of court of the county in which the defendant was charged with the offense.
"In any proceedings before the district judge, the clerk of court of the county wherein the offense was charged need not be present."
John Graham MOVED the elimination of the last sentence. This was seconded. The Committee voted in favor of deleting the sentence.
It was pointed out that the second sentence of paragraph 2 should begin with the word "Upon" rather than the word "On". It was suggested that an Explanatory Note be drafted to reflect that the clerk need not be present at the trial before the "new" judge. It was also suggested that in the second line of paragraph 2, that the word "charge" should be changed to "case".
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Judge Smith noted that the draft as presented was well balanced in that the prosecutor could select the judge upon receipt of request from the defendant, thus eliminating the problem of judge-shopping by the defendant, while at the same time the defendant is protected from the prosecution selection of a new judge in that he need not follow through with the proceeding before the "new" judge.
Paul Sand MOVED the adoption of this proposed language, subject to reconsideration by the Committee at the next meeting. This was seconded. No further discussion, the question was called and the motion CARRIED.
Judge Erickstad suggested that the staff work with Mr. Sand to prepare an Explanatory Note to Rule 19 for presentation at the next meeting, together with the proposed rule and any amended language.
CODE REVISER SALARY
Mr. Sand reported that his subcommittee recommended that the salary of Mr. Travis be increased by $1,000 for the second 12-month period of employment i.e., to commence July 1, 1972 through July 1, 1973, noting that the performance of Mr. Travis was very satisfactory. He emphasized that the recommendation was based on the supposition that the money was available. He MOVED that the increase be granted. Seconded by John Graham. Question was called and the motion CARRIED unanimously.
NEXT MEETING
The Committee next took up a discussion of possible future meeting dates. It was noted that the next scheduled meeting was the 10-11-12 of August. Several of the members present (including Judge Glaser, John Graham, and Judge Pearce) indicated that they would be unable to attend. In light of this, Judge Erickstad suggested canceling the August date and opened the floor for suggestions as to a future date. He noted that the September term is the largest for the Supreme Court and that month would be difficult for him.
It was suggested to facilitate the completion of the work of the Committee and in view of the fact that meetings are precluded for August and September, that the October meeting be five days (author remains anonymous at his wish). He pointed out that with the two-day meetings the Committee is just beginning to "warm up" to the Rules when the meeting is ending. By extending the period, the Committee could achieve its maximum efficiency. Other members of the Committee noted that if the proposal for a five-day meeting were scheduled far enough in advance, they could plan for such a meeting in their schedule.
The possibility of scheduling a meeting in a location such as Camp Grafton was mentioned and the feasibility of such proposal will be looked into by the staff to determine a cost basis. An argument against such a proposal was the unavailability of the resources of a library. MOTION was made by John Graham, seconded by Paul Sand, for a five-day meeting to run from Tuesday through Saturday, the 17 through 21st of October. (This provides the rest of the Committee with at least three-months' notice of the meeting.) Motion CARRIED by unanimous vote.
ADJOURNMENT
MOTION was made by John Graham to adjourn the meeting.Seconded. The Committee was unanimously in favor and the meeting was adjourned.
Respectfully submitted,
Charles M. Travis
Criminal Code Reviser
Joseph H. Louwagie
Assistant Code Reviser
Donna M. Fischer
Secretary