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Joint Procedure Committee Meeting

Scheduled on Thursday, July 25, 1968 @ 10:00 AM

MINUTES OF MEETING

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

July 25, 1968

The Joint Committee of the Judicial Council and the State Bar Association for the Adoption of Rules of Criminal Procedure met at 9:11 a.m., July 25, 1968, in the hearing room of the Supreme Court.

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

Members absent were:
Former Supreme Court Judge William S. Murray;
District Judge Eugene A. Burdick;
Mr. Roger Persinger.

Also present were:
Mr. John A. Graham;
Mrs. Rebecca Quanrud, Secretary.

The chairman opened the meeting by requesting the secretary to give a resume of the minutes of the previous meeting, which was done.

The chairman then called on Mr. Vogel to discuss the research he had done in regard to plea bargaining, which he did, stating that he had found little material beyond the work done by the Minimum Standards for Criminal Justice Project of the American Bar Association, of which the committee members had copies. A general discussion of plea bargaining followed.

The chairman requested Mr. Vogel to draft a rule relating to plea bargaining for presentation at a future committee meeting. Judge Muggli asked if Mr. Vogel should draft a rule dealing with reduction of the charge, rather than one under which the judge would commit himself ahead of time to what the sentence would be. A discussion followed. It was agreed that Mr. Vogel should be free to draft the rule as he saw fit, and it would be discussed fully at a later meeting.

Judge Ilvedson read his draft of Rule 7(a) as follows:

Rule 7. The indictment and the Information.

(a) Use of Indictment or Information. All offenses against the State of North Dakota shall be prosecuted by indictment or by information.

Judge Ilvedson moved to amend his draft of Rule 7(a) by inserting the words "triable in the district court" after the word "Dakota." Judge Smith seconded the motion. The motion carried.

Judge Ilvedson moved to amend his draft of Rule 7(a) by inserting the word "therein" after the word "prosecuted." Judge Muggli second the motion. The motion carried.

Mr. Sand moved that the wording of Rule 7(a) be as follows:

(a) Use of indictment or Information. All offenses against the State of North Dakota triable in the district court, if prosecuted therein, shall be prosecuted by indictment or information.

There was no second to Mr. Sand's motion.

Judge Ilvedson moved that Rule 7(a) should read as follows:

(a) Use of Indictment or Information. All offenses against the State of North Dakota, if prosecuted in the district court, shall be prosecuted by indictment or information.

Judge Muggli seconded the motion. The motion carried.

Judge Ilvedson read Federal Rule 7(b), Waiver of Indictment, and moved that Rule 7(b) be omitted from the North Dakota rules, retaining the parenthetical letter for ease of comparison with Barron § Holtzoff. Mr. Shaft seconded the motion. The motion carried.

Judge Ilvedson read his draft of Rule 7(c) and moved its adoption, noting that it differed from the federal rule only in the substitution of the words "prosecuting attorney" for the words "attorney for the government." Mr. Shaft seconded the motion.

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Minutes of July 25-26, p. 2

There followed a discussion of N.D.C.C. § 29-11-10.1--Charging crimes in separate counts and consolidating indictments and informations, which is to be superseded by Rule 8; and of N.D. Const § 97, which provides that all prosecutions shall conclude "against the peace and dignity of the State of North Dakota," which will be repealed if Senate Concurrent Resolution "UU" [S.L. 1967, ch. 517] passes in the primary election to be held in September. It was noted that the provisions of N.D. Const. § 97 are also contained in N.D.C.C. § 29-11-06. It was generally agreed that Rule 7(c) should be passed in the wording suggested by Judge Ilvedson, keeping in mind that it will stand if SCR "UU" passes and will have to be revised if "UU" is defeated.

The question being on Judge Ilvedson's motion, the motion carried. Rule 7(c) as adopted reads:

Rule 7. The Indictment and the Information.

(c) Nature and Contents. The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the prosecuting attorney. It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement. Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specific means. The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation, or other provision of law which the defendant is alleged therein to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

Judge Ilvedson read his draft of Rule 7(d) and moved its adoption, noting that it was the same as the federal rule and that it would supersede N.D.C.C. § 29-11-44--Surplusage. Mr. Sand seconded the motion. The motion carried. Rule 7(d) as adopted reads:

Rule 7. The Indictment and the Information.

(d) Surplusage. The court, on motion of the defendant, may strike surplusage from the indictment or information.

Judge Ilvedson read his drafts of Rule 7(e) and 7(f), noting that they were the same as the federal rule. They read:

Rule 7. The Indictment and the Information.

(e) Amendment of Information. The court may permit an information to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.

(f) Bill of Particulars. The court may direct the filing of a bill of particulars. A motion for a bill of particulars may be made before arraignment or within ten days after arraignment or at such later time as the court may permit. A bill of particulars may be amended at any time subject to such conditions as justice requires.

There followed a discussion of Rule 7(f). Judge Ilvedson moved the adoption of Rule 7(f) as read. Judge Muggli seconded the motion. Further discussion followed, particularly in regard to the amendment of a bill of particulars.

Judge Erickstad appointed a subcommitte of Judge Ilvedson, chairman, Judge Morris, Mr. Sand, and Mr. Vogel to work on an amended draft of Rule 7(f) over the lunch hour.

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Minutes of July 25-26, 1968, p. 3

Mr. Graham read from State v. Bauer, 153 N.W.2d 895 (N.D. 1967).

In discussing Rule 7(e) it was brought out by Judge Muggli and Mr. Sand that perhaps some provision for the amendment of a complaint should be made (Rule 3).

Judge Smith stated that he felt the rules should be written to retain the holding in State v. Buehler, 125 N.W.2d 155 (N.D. 1963).

The chairman appointed a subcommittee of Judge Muggli, chairman, Mr. Glaser, and Judge Smith to work on a revision of Rule 7(a) over the lunch hour.

At 11:50 a.m. the committee recessed, reconvening at 1:30 p.m.

It was noted that the following cases and statute should be considered in connection with Rule 7: State v. Buehler, 125 N.W.2d 155 (N.D. 1963); State v. Gill, 154 N.W.2d 791 (N.D. 1967); State v. Starratt, 153 N.W.2d 311 (N.D. 1967); N.D.C.C. § 29-09-03--Prosecution on information without waiting for term of court.

Judge Muggli moved that the committee should hold a night meeting and adjourn at noon on Friday. It was decided by general agreement that this should be done.

The chairman took notice of Mr. John A. Graham's assistance as law clerk during the past year, and informed the committee that Mr. Graham was now employed by the Legislative Research Committee.

Judge Ilvedson read Rule 7(f) as revised by the subcommittee as follows:

Rule 7. The Indictment and the Information.

(f) Bill of Particulars. The court may direct the filing of a bill of particulars. A motion for a bill of particulars may be made before arraignment or within ten days after arraignment or at such later time as the court may permit. A bill of particulars should be granted where it appears to the court necessary to protect the defendant against a second prosecution for the same offense or to enable the defendant to adequately prepare for trial. The motion shall be in writing and shall specify the particulars sought by the defendant. A bill of particulars may be amended at any time subject to such conditions as justice requires.

Judge Muggli moved that the words "one day" be inserted in lieu of the words "ten days." Mr. Sand seconded the motion. The motion carried. Rule 7(f) as adopted reads:

Rule 7. The Indictment and the Information.

(f) Bill of Particulars. The court may direct the filing of a bill of particulars. A motion for a bill of particulars may be made before arraignment or within one day after arraignment or at such later time as the court may permit. A bill of particulars should be granted where it appears to the court necessary to protect the defendant against a second

prosecution for the same offense or to enable the defendant to adequately prepare for trial. The motion shall be in writing and shall specify the particulars sought by the defendant. A bill of particulars may be amended at any time subject to such conditions as justice requires.

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Minutes of July 25-26, 1968, p. 4

Judge Muggli moved that the action by which the committee had adopted Rule 7(a) be rescinded and that the following wording, prepared by the subcommittee, be adopted:

Rule 7. The Indictment and the Information.

(a) All prosecutions in the district court, including appeals, shall be prosecuted by indictment or information.

He stated that the subcommittee was of the mind to overrule State v. Bauer, supra, and that their idea was to include proceedings tried in city court and appealed to the district court.

Judge Smith seconded Judge Muggli's motion. The question being on the motion, the motion carried, Judge Morris abstaining.

Judge Ilvedson moved that Rule 7(e) be adopted as read. [See p. 2 for wording.] Mr. Glaser seconded the motion. The motion carried.

There followed a discussion of whether the rules when printed should contain a table of superseded statutes. Judge Erickstad said he thought the rules should be interpreted case by case. Judge Smith said he feels that an attempt at least should be made to set up a table of superseded statutes. Mr. Sand said that he thinks the committee should work as a group and go over them all at the end. Judge Muggli said that he thinks that we should start at the beginning of the statutes and go through them one by one when we have finished work on the rules.

Mr. Shaft read his draft of Rule 12(a) as follows:

Rule 12. Pleadings and Motions Before Trial; Defenses and Objections.

(a) Pleadings and Motions. Pleadings in criminal proceedings shall be the indictment and the information, and, in County Court of Increased jurisdiction, Municipal court, or county justice court, the complaint, and the pleas of not guilty, and nolo contendere. All other pleas, demurrers, and motions to quash are abolished. Defenses and objections raised before trial shall be raised only by motion to dismiss or to grant appropriate relief, as provided in these rules.

It was noted that N.D.C.C. § 29-14-15--Pleas classified, would be superseded.

A discussion of the plea of nolo contendere followed.

Following discussion Mr. Shaft agreed to amend his wording to insert the words "in district court" after the word "information," to insert the words "the complaint" before the words "in county court of increased jurisdiction," and to delete the words "the complaint" after the words "county justice court."

Mr. Shaft moved that Rule 12(a) be adopted as amended. Judge Morris seconded the motion. The motion carried. The following members asked to be recorded as voting in opposition to the motion: Judge Muggli; Mr. Sand; Mr. Vogel.

Rule 12(a) as adopted reads:

Rule 12. Pleadings and Motions Before Trial; Defenses and Objections.

(a) Pleadings and Motions. Pleadings in criminal proceedings shall be the indictment and the information in district court, and the complaint in county court of increased jurisdiction, municipal court, or county justice court, and the pleas of not guilty, guilty, and nolo contendere. All other pleas, demurrers, and motions to quash are abolished. Defenses and objections raised before trial shall be raised only by motion to dismiss or to grant appropriate relief, as provided in these rules.

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Minutes of July 25-26, 1968, p. 5

Mr. Shaft read his drafts of Rule 12(b)(1) and 12(b)(2) as follows:

Rule 12. Pleadings and Motions Before Trial; Defenses and Objections.

(b) The Motion Raising Defenses and Objections.

(1) Defenses and Objections which May Be Raised. Any defense or objection which is capable of determination without the trial of the general issue may be raised before trial by motion.

(2) Defenses and Objections which Must Be Raised. Defenses and objections based on defects in the institution of the prosecution or in the complaint, indictment, or information, other than that it fails to show jurisdiction in the court or to charge an offense may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver. Lack of jurisdiction or the failure of the complaint, indictment, or information to charge an offense shall be noticed by the court at any time during the pendency of the proceeding.

Mr. Shaft moved the adoption of Rule 12(b)(1) and 12(b)(2) as read. Mr. Sand seconded the motion. The motion carried.

Mr. Shaft read his draft of Rule 12(b)(3) as follows:

Rule 12. Pleadings and Motions Before Trial; Defenses and Objections.

(b) The Motion Raising Defenses and Objections.

(3) Time of Making Motion. The motion shall be made before the plea is entered, but the court may permit it to be made within a reasonable time thereafter, without withdrawal of the plea.

Mr. Shaft moved the adoption of Rule 12(b)(3) as read. Judge Smith seconded the motion. The motion carried.

Mr. Shaft read his draft of Rule 12(b)(4) as follows:

Rule 12. Pleadings and Motions Before Trial; Defenses and Objections.

(b) The Motion Raising Defenses and Objections.

(4) Hearing on Motion. A motion before trial raising defenses or objections shall be determined before trial unless the court orders that it be deferred for determination at the trial of the general issue. An issue of fact shall be tried by a jury if a jury trial is required under the Constitution or statute. All other issues of fact shall be determined by the court with or without a jury or on affidavits or in such other manner as the court may direct.

Judge Smith suggested that N.D.C.C. ch. 29-20--Determination of Defendant's Mental Condition, should be retained.

Mr. Sand read a part (§ 701, amending ch. 223, tit. 18, USC, relating to witnesses and evidence) of the Crime Control Act of 1968, Public Law 90-351, HR 5037 of the 90th Congress, which part deals with admissibility of confessions.

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Minutes of July 25-26, 1968, p. 6

Mr. Graham noted that the committee should study the case of Jackson v. Denno, 378 U.S. 361, 84 Sup.Ct. 1774, 12 L.Ed.2d 908, which has to do with the admissibility of a confession.

Mr. Shaft moved the adoption of his draft of Rule 12(b)(4) with the following amendment: Before the word "Constitution" insert the words "United States"; and after the word "Constitution" insert a comma and the words "North Dakota Constitution" followed by a comma.

Judge Smith moved the adoption of Mr. Shaft's draft of Rule 12(b)(4) with the following amendment: Delete the words "under the Constitution or statute" and insert in lieu thereof the words "by law." Mr. Glaser seconded the motion. The question being on Judge Smith's motion, the motion failed of passage.

Mr. Sand seconded Mr. Shaft's motion. The question being on Mr Shaft's motion, the motion carried. Rule 12(b)(4) as adopted reads:

Rule 12. Pleadings and Motions Before Trial; Defenses and Objections.

(b) The Motion Raising Defenses and Objections.

(4) Hearing on Motion. A motion before trial raising defenses or objections shall be determined before trial unless the Court orders that it be deferred for determination at the trial of the general issue. An issue of fact shall be tried by a jury if a jury trial is required under the United States Constitution, the North Dakota Constitution, or statute. All other issues of fact shall be determined by the court with or without a jury or on affidavits or in such other manner as the court may direct.

The chairman noted that for purposes of reference mention should be made in the minutes of § 701 of the Crime Control Act of 1968, supra; Jackson v. Denno, supra; and Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602; 10 A.L.R.3d 974.

Mr. Shaft read his draft of Rule 12(b)(5) and moved its adoption. Judge Morris seconded the motion. The motion carried. Rule 12(b)(5) as adopted reads:

Rule 12. Pleadings and Motions Before Trial; Defenses and Objections.

(b) The Motion Raising Defenses and Objections.

(5) Effect of Determination. If a motion is determined adversely to the defendant he shall be permitted to plead if he had not previously pleaded. A plea previously entered shall stand. If the court grants a motion based on a defect in the institution of the prosecution or in the complaint, indictment, or information, it may also order that the defendant be held in custody or that his bail be continued for a specified time pending the filing of a new indictment, information, or complaint. Nothing in this rule shall be deemed to affect the provisions of any act of the legislature relating to periods of limitations.

Mr. Shaft discussed briefly the statutes which he believes will superseded by Rule 12 and listed them as follows: §§ 29-11-01, 29-11-02, 29-11-13, 29-14-01, and 29-14-03 through 29-14-15.

Judge Muggli read his draft of Rule 17(a) as follows:

Rule 17. Subpoena.

(a) For Attendance of Witnesses; Form; Issuance. A subpoena shall be issued by the magistrate or the clerk under the seal of the court. It shall state the name of the court and the

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Minutes of July 25-26, 1968, p. 7

title, if any, of the proceeding, and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein. The magistrate or clerk shall issue a subpoena, signed and sealed but otherwise in blank, to the party requesting it, who shall fill in the blanks before it is served.

Mr. Vogel moved the adoption of Judge Muggli's draft of Rule 17(a) as read. Judge Muggli seconded the motion.

Judge Smith moved that the words "magistrate or" be deleted from the last sentence, and that the following sentence be added at the end: "A subpoena shall be issued by a magistrate in a proceeding before him, but it need not be under the seal of the court." Judge Muggli seconded the motion.

A discussion followed, particularly relating to the necessity of a seal.

The chairman appointed a subcommittee of Judge Muggli, chairman, Judge Smith, Mr. Sand, and Mr. Glaser, to work on a new draft of Rule 17(a) over the dinner recess.

The meeting recessed at 5:10 p.m. and reconvened at 7:10 p.m., with the same persons present as before.

Judge Muggli read his draft of Rule 17(b) and moved its adoption, noting that it was the same as the federal rule except for the substitution of the word "prosecution" for the word "government." Mr. Sand seconded the motion. The motion carried. Rule 17(b) as adopted reads:

Rule 17. Subpoena.

(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.

Judge Muggli read the draft of Rule 17(a) as revised by the subcommitte and moved its adoption in lieu of the original draft. Mr. Glasser seconded the motion. By discussion it was agreed to insert the words "or objects" after the words "documentary evidence" wherever those words appear. The question being on Judge Muggli's motion as amended, the motion carried. Rule 17(a) as adopted reads:

Rule 17. Subpoena.

(a) For Attendance of Witnesses; 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.

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Minutes of July 25-26, 1968, p. 8

Judge Muggli read his draft of Rule 17(c). Judge Ilvedson moved the adoption of Judge Muggli's draft as read. Judge Morris seconded the motion. The motion carried. Rule 17(c) as adopted reads:

Rule 17. Subpoena.

(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 designated 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.

Judge Muggli read his draft of Rule 17(d) as follows:

Rule 17. Subpoena.

(d) Service. 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 day'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.

Mr. Vogel moved that Judge Muggli's draft be amended by inserting the following words after the word "prosecution" in the last sentence "or in behalf of a defendant unable to pay, pursuant to Rule 17(b)." Judge Muggli seconded the motion. The motion carried.

Mr. Vogel moved that Judge Muggli's draft be further amended by giving it the designation (1) and by adding paragraphs (2) and (3), except for the last sentence of (3) of Rule 45 of the North Dakota Rule of Civil Procedure. Judge Muggli seconded the motion. The motion carried. Rule 17(d) as adopted reads:

Rule 17. Subpoena.

(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 day'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 day's attendance of any witness, a subpoena for such witness, and a written demand that such witness be served by mail, telegraph, or telephone, the sheriff shall serve and make return of such subpoena by:

1. Registered or certified return receipt requested mail.

2. 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 nondelivery 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

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Minutes of July 25-26, 1968, p. 9

3. 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 the officer making the service, such acknowledgment shall be prima facie evidence of service and the officer shall make his return accordingly.

No deposit of traveling fees or witness fees shall be required if such fees are to be paid by this state or any 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 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 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 fees are not paid the witness shall not be 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 fees of such witness are to be paid by this state or any political subdivision thereof.

Judge Muggli read his draft of Rule 17(e) and moved its adoption. Judge Smith seconded the motion.

The secretary was instructed to make note that § 31-03-25--Summoning witness in this state to testify in another state, and possibly other sections of ch. 31-03--Means of compelling attendance of witnesses, should be retained.

Mr. Glaser noted that he thought that §§ 31-03-13--Service of Subpoenas--Proof--Peace officers required to make, and 31-01-14--Places where person may be compelled to attend as witnesses in criminal matters, should be superseded by Rule 17(e).

Discussion followed. The question being on the motion to adopt Judge Muggli's draft of Rule 17(e), the motion carried. Rule 17(e) as adopted reads:

Rule 17. Subpoena.

(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.

Judge Muggli read his draft of Rule 17(f) and moved its adoption with the provision that it be reexamined after adoption of Rule 15, relating to depositions. Mr. Sand seconded the motion. The motion carried Rule 17(f) as adopted reads:

Rule 17. Subpoena.

(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.

(2) Place. A resident of North Dakota whose deposition is to be taken may be required to attend an examination only in the county wherein he resides or is employed or transacts his business

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Minutes of July 25-26, 1968, p. 10

in person. A non-resident of North Dakota may be required to attend in accordance with the law of the state in which he is served.

Judge Muggli read his draft of Rule 17(g) and moved its adoption. Judge Smith seconded the motion. The motion carried. Rule 17(g) as adopted reads:

Rule 17. Subpoena.

(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.

Judge Muggli read his draft of Rule 17.1 and moved its adoption. Judge Ilvedson seconded the motion. The motion carried. Rule 17.1 as adopted reads:

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 admissions made by the defendant or his attorney at the conference shall 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.

The secretary was instructed to make note of the following citations having to do with pre-trial conference: Jackson v. Denno, 378 U.S. 361, 84 Sup. Ct. 1774, 12 L. Ed. 2d 908; Criminal Pre-Trials--Useful Techniques, by Leo Brewster, 29 F.R.D. 442 (Seminar on Procedures, 29 F.R.D. 191); Pre-Trial Conferences in Criminal Cases, by Hon. Joe Ewing Estes, 23 F.R.D. 560 (Seminar on Protracted Cases, 23 F.R.D. 319); Pre-Trial in Criminal Cases, by Hon. Irving R. Kaufman, 23 F.R.D. 551 (also printed in 42 Am. Jud. Soc. 150 [Feb. 1959]); The Apalachin Trial: Further Observations on Pre-Trial in Criminal Cases, by Hon. Irving R. Kaufman, 44 J. Am. Jud. Soc. 53 [Aug. 1960]; Criminal Pre-Trials--Use Techniques, by William B. West, III, 29 F.R.D. 436 (Seminar on Procedures, 29 F.R.D. 191); Pre-Trial Procedures in Big Criminal Cases, 25 F.R.D. 399-403 (Protracted Cases--Recommended Procedures, 25 F.R.D. 351); Appendix of Sample Forms, Part III, Criminal Actions, 25 F.R.D. 468-470 (Protracted Cases--Recommended Procedures, 25 F.R.D. 351); Mo. Sup. Ct. Rule 25.09; Rules Governing the New Jersey Courts § 3:5-3; Pre-Trial in Criminal Cases, 37 F.R.D. 95; United States v. Westmoreland, 41 F.R.D. 419.

Judge Morris discussed briefly his ideas relating to Rule 18, Venue.

The meeting recessed at 9:02 p.m. and reconvened on Friday, July 26, at 9:08 a.m., with the following persons present: Judge Erickstad; Judge Morris; Judge Ilvedson; Judge Muggli; Judge Smith; Mr. Sand; Mr. Glaser; Mr. Shaft; Mr. Roger Persinger; Mr. Graham; Mrs. Quanrud.

Judge Morris resumed his discussion of Rule 18, stating that he feels that it should be considered in conjunction with Rules 19 and 20, which relate to Change of Venue and to Prosecution on Information Outside of County Before any Judge Within Judicial District Without Waiting for Term of Court.

Mr. Sand read his drafts of Rules 19 and 20, and Mr. Persinger read his drafts of Rules 21 and 22, relating to Transfer from the County for Trial and to Time of Motion to Transfer. A discussion of the interrelated problems of these rules followed.

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Minutes of July 25-26, 1968, p. 11

The chairman appointed a subcommittee of Judge Morris, Mr. Sand, and Mr. Persinger to work on Rules 18 through 22 and report at the next meeting.

At about 10:30 Mr. Shaft left the meeting.

Judge Muggli brought up the question: Will the rules of criminal procedure apply to juvenile cases? A discussion followed. The chairman appointed Judge Muggli to make a study of the question.

Mr. Glaser read his draft of Rule 23(a) as follows:

Rule 23. Trial by Jury or by the Court.

(a) Trial by Jury. Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing or in open court, with the approval of the court and the consent of the prosecution. In all cases the commencement of the taking of testimony by the court without a jury shall be deemed a waiver of the right to trial by jury.

Judge Ilvedson suggested that the words "entered upon the minutes" be inserted after the words "open court." There being no objection, this change was made in the draft.

Judge Ilvedson moved that the last sentence of the draft be deleted. Judge Morris seconded the motion. The motion carried.

Mr. Graham discussed cases in which a jury was required, mainly criminal contempt cases. He listed three: Duncan v. Louisiana, 88 Sup. Ct. 1444 (1968); Dyke v. Taylor Implement Mfg. Co., 88 Sup. Ct. 1472 (1968); Bloom v. Illinois, 88 Sup. Ct. 1477 (1968).

Mr. Glaser moved that Rule 23(a) be adopted as amended. Judge Smith seconded the motion. The motion carried. Rule 23(a) as adopted reads:

Rule 23. Trial by Jury or by the Court.

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

The secretary was instructed to note that Rule 23 should be indexed in the printed rules under Waiver as well as under Trial by Jury.

Mr. Sand moved that the title of Rule 23 be amended to read "Waiver of Trial by Jury." Judge Ilvedson seconded the motion. Discussion followed and other suggestions for change in title were made.

Mr. Glaser read Federal Rule 23(b) and (c) as follows:

[Federal] Rule 23. Trial by Jury or by the Court.

(b) Jury of Less Than Twelve. Juries shall be of 12 but at any time before verdict the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12.

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

Mr. Glaser stated that he thought that a rule like Federal Rule 23(b) might not be permissible in this state under § 7 of our constitution, that he could find no provision similar to that of 23(c) applicable to any of our state courts, and that he thought 23(c) should be omitted. A discussion of Rule 23(c) followed.

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Minutes of July 25-26, 1968, p. 12

Mr. Sand withdrew his motion regarding the title of Rule 23 and Judge Ilvedson withdrew his second.

Judge Muggli moved that the committee follow Mr. Glaser's draft and omit Rule 23(c). Mr. Sand seconded the motion. The motion carried.

Judge Muggli moved that Rule 23(b) be omitted, Mr. Sand seconded the motion. After discussion, centering on the possibility of agreement by stipulation on a jury of fewer than twelve, Judge Muggli withdrew his motion, and Mr. Sand withdrew his second.

Mr. Glaser moved that the committee adopt Federal Rule 23(b) as North Dakota Rule 23(b). Judge Morris seconded the motion. Judge Smith stated that he wished to be recorded as voting nay; however, a vote was not taken at the time. The chairman appointed Judge Smith to make a special report on Rule 23(b) at the next meeting.

The chairman made the following assignments for the next meeting: Rule 32, Sentence and Judgment, Mr. Shaft; Rule 33, New Trial, Judge Ilvedson; Rule 34, Arrest of Judgment, Judge Morris; Rules 35 and 36, Correction or Reduction of Sentence and Clerical Mistakes, Mr. Persinger; Rule 37, Taking Appeal; and Petition for Writ of Certiorari, Mr. Sand; Rule 38, Stay of Execution, and Relief Pending Review, Judge Muggli; Rule 39, Supervision of Appeal, Mr. Vogel; Rule 40, Commitment to Another District; Removal, Mr. Glaser; Rule 41, Search and Seizure, Judge Smith; Rule 42, Criminal Contempt, Judge Murray. It was agreed that the next meeting would be held Thursday and Friday, Sept. 26 and 27, 1968, commencing at 9:00 a.m.

The meeting adjourned at 12:10 p.m.

Respectfully submitted:
Rebecca Quanrud, Secretary