Joint Procedure Committee Meeting
Scheduled on Thursday, September 17, 1970 @ 2:30 PM
MINUTES OF MEETING
Joint Committee of the Judicial Council
and the State Bar Association
for the Adoption of Rules of Criminal Procedure
September 17, 1970
The Joint Committee of the Judicial Council and the State Bar Association for the Adoption of Rules of Criminal Procedure met at 1:30 p.m., September 17, 1970, in the hearing room of the Supreme Court.
Present were:
Supreme Court Judge Ralph J. Erickstad, Chairman;
District Judge Norbert Muggli;
County Judge Kirk Smith;
Former Supreme Court Judge William S. Murray;
First Assistant Attorney General Paul M. Sand;
Mr. Robert L. Vogel;
Mr. John Graham;
Mr. John Shaft; and
Mr. Gerald Glaser.
Absent were:
District Judge Eugene A. Burdick;
District Judge Roy A. Ilvedson;
Retired Supreme Court Judge James Morris; and
Mr. Roger Persinger.
Also present were:
Mr. Robert Wirtz, law clerk, and
Mrs. Lorna Bender, secretary.
Mr. Larry Feinstein of the Associated Press attended during the discussion of plea bargaining.
The chairman welcomed those present.
After distribution of corrected pages 2 and 17 of the minutes of the previous meeting, Judge Murray moved that the reading of the minutes be waived and that they be approved as submitted in writing, with the amendments just inserted. Mr. Vogel seconded the motion and it carried.
Since crowded and conflicting schedules had made it impossible for many subcommittees to get together before this meeting, it was decided they would meet and prepare reports before the committee reconvened on Friday morning. Consideration of Rule 6, Rule 21, Rules 37 and 39, and Rule 24.1 (disqualification of trial judges) was postponed until after the subcommittee meetings.
The chairman called on Mr. Vogel for his proposed amendment to Rule 11, relating to plea bargaining. Mr. Vogel read his draft to the committee.
Rule 11. Pleas.
(a) Pleading by Defendant; alternatives. A Defendant may plead not guilty, guilty, or, with the consent of the Court, nolo contendere. The Court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the Defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a Defendant refuses to plead or if the Court refuses to accept a plea of guilty or if a Defendant Corporation fails to appear, the Court shall enter a plea of not guilty. The Court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.
(b) Plea discussions and plea agreements.
(1) Propriety of plea discussions and plea agreements.
(A) In cases in which it appears that the interest of the public in the effective administration of criminal justice would thereby be served, the prosecuting attorney may engage in plea discussions for the purpose of reaching a plea agreement. He should engage in plea discussions or reach a plea agreement with the Defendant only through defense counsel, except when the defendant is not eligible for or does not desire appointment of counsel and has not retained counsel.
-2-
(B) The prosecuting attorney, in reaching a plea agreement, may agree to one or more of the following, as dictated by the circumstances of the individual case: to make or not to oppose favorable recommendations as to the sentence which should be imposed if the Defendant enters a plea of guilty or nolo contendere; to seek or not to oppose dismissal of the offense charged if the Defendant enters a plea of guilty or nolo contendere to another offense reasonably related to Defendant's conduct; or to seek or not to oppose dismissal of other charges or potential charges against the Defendant if the Defendant enters a plea of guilty or nolo contendere.
(C) Similarly situated Defendants should be offered equal plea agreement opportunities.
(2) Relationship between defense counsel and client.
(A) Defense counsel should conclude a plea agreement only with the consent of the Defendant, and should ensure that the decision whether to enter a plea of guilty or nolo contendere is ultimately made by the Defendant.
(B) To aid the Defendant in reaching a decision, Defense Counsel, after appropriate investigation, should advise the Defendant of the alternatives available and of considerations deemed important by him or the Defendant in reaching a decision.
(3) Responsibilities of the Trial Judge.
(A) The Trial Judge should not participate in plea discussions.
(B) If a tentative plea agreement has been reached which contemplates entry of a plea of guilty or nolo contendere in the expectation that other charges before that Court will be dismissed or that sentence concessions will be granted, upon request of the parties the Trial Judge may permit the disclosure to him of the tentative agreement and the reasons therefor in advance of the time for tender of the plea. He may then indicate to the prosecuting attorney and defense counsel whether he will concur in the proposed disposition if the information in the pre-sentence report is consistent with the representations made to him. If the Trial Judge concurs, but later decides that the final disposition should not include the charge or sentence concessions contemplated by the plea agreement, he shall so advise the Defendant and then call upon the defendant to either affirm or withdraw his plea of guilty or nolo contendere.
(C) When a plea of guilty or nolo contendere is tendered or received as a result of a prior plea agreement, the Trial Judge should give the agreement due consideration, but notwithstanding its existence he should reach an independent decision on whether to grant charge or sentence concessions.
(c) Discussion and agreement not admissible.
Unless the Defendant subsequently enters a plea of guilty or nolo contendere which is not withdrawn, the fact that the Defendant or his counsel and the prosecuting attorney engaged in plea discussions or made a plea agreement should not be received in evidence against or in favor of the Defendant in any criminal or civil action or administrative proceedings.
-3-
Mr. Vogel said that what is here listed as Rule 11(a) is the rule that was adopted earlier, and beyond that his draft is basically the language of Minimum Standards Relating to Pleas of Guilty, except for advisory language that didn't seem necessary.
Mr. Vogel moved to adopt his proposed rule, and Mr. Graham seconded the motion. The chairman called for discussion.
Mr. Shaft asked the meaning of the last sentence in Rule 11(2): "To aid the Defendant in reaching a decision, Defense Counsel, after appropriate investigation, should advise the Defendant of the alternatives available and of considerations deemed important by him or the Defendant in reaching a decision."
Mr. Vogel said this was to cover cases where a defendant did not commit the crime but thought it would be easier to plead guilty. Mr. Glaser added that if the defendant had committed a crime, the judge should make sure he is not pleading guilty to the wrong offense. Judge Smith said this could be taken care of with a pre-sentence investigation report.
Judge Muggli asked if it would not be practical to have some kind of record made of plea bargaining between defense counsel and client, to prove defendant had been kept informed and avoid leaving an opening for him to come back into court and challenge the relationship of defense counsel with himself.
Mr. Sand said that spelling out conduct of the defense counsel would only provide more questions to raise in the appeal. He said he feared that "Should advise defendant of alternatives available" might mean every conceivable alternative.
Mr. Vogel said he tended to agree with Mr. Sand, and that the problem was where to draw the line on what really belongs in a rule.
During the ensuing discussion the chairman reminded the group that this plea bargaining rule would be in effect only if all parties concerned volunteered to participate and that they wouldn't be engaged in it at all except under those circumstance
Mr. Vogel read from the commentary of Section 3.2(b), Minimum Standards Relating to Pleas of Guilty, page 70:
"Although the court must inquire into the defendant's understanding of the possible consequences at the time the plea is received, this is not a complete substitute for advice by counsel. The court's warning, coming as it does just before the plea is taken, may not afford time for mature reflection. Moreover, there may be relevant considerations in addition to those which the judge can be obligated to cover in his admonition.
"It is apparent that the defendant needs to know the probability of being convicted should he decide to stand trial. Because this requires a careful evaluation of the problems of proof, of possible defenses, and the like, few defendants can make this appraisal without the aid of counsel. The defendant also needs whatever information is available upon which it can be predicted what consequences would follow a plea of guilty or nolo contendere as compared to those which would follow conviction at trial. Thus, the defendant should be informed fully as to the charge or sentence concessions tendered by the prosecutor. A realistic appraisal of the value of the concessions offered by the prosecutor requires that they be compared not only with the maximum possible punishment but also
-4-
with the probable sentence the judge would impose in the absence of a plea of guilty. Evaluation of these tendered concessions also requires some prediction as to the likelihood of the judge acting upon the prosecutor's recommendations.
"Defense counsel cannot predict many of these matters with certainty, but the defendant is nonetheless entitled to his best professional judgment. Although counsel must 'beware of bold and confident assurances to clients,' CANON 8, ABA CANONS OF PROFESSIONAL ETHICS, 'there is nothing wrong, however, with a lawyer's giving his client the benefit of his judgment as to what the court is likely to do, always making it clear that he is giving advice, not making a promise.' Cortez v. United States 337 F.2d 699, 701 (9th Cir. 1964). See TREBACH, THE RATIONING OF JUSTICE 149 (1964); Polstein, How to 'Settle' a Criminal Case, 8 PRAC.LAW. 35, 39 (Jan. 1962). Although it is inevitable that defense counsel's predictions will not always come to pass, defendants generally are aided by such advice, and thus pleas entered upon opinions and not promises are not subject to attack. Note, 112 U.PA.L.REV. 865, 889-90 (1964).
"The standard also recognizes the need for counsel to advise the defendant on other considerations 'deemed important by him or the defendant.' Many collateral consequences may follow conviction, such as the loss of civil rights, courts-martial or inability to enter armed services, loss of or ineligibility for licenses granted by the state, use of the conviction in a subsequent civil case, and even deportation or expatriation. See id. at 875; Note, 55 COLUM.L.REV. 366, 376 (1955). Where from the nature of the case it is apparent that these consequences may follow (as where the charge concerns defendant's operation of licensed premises) or where the defendant raises a specific question concerning collateral consequences (as where he inquires about the possibility of deportation), counsel should fully advise the defendant of these consequences."
Mr. Glaser moved that 11(b)(2)(B) be deleted and the letter "(A)" removed. Judge Muggli seconded the motion and it carried.
Mr. Sand questioned the inclusion of 11(b)(1)(C): "Similarly situated Defendants should be offered equal plea agreement opportunities."
During the discussion Mr. Vogel read 3.1(c), Minimum Standards Relating to Pleas of Guilty, page 68:
"In current practice, charge and sentence concessions usually must be sought by the defendant; they are not automatically awarded to defendants without prior plea discussion. A naive or uninformed defendant will sometimes plead guilty to a charge and receive a sentence grossly inconsistent with the customary practice as to a case of that kind. This differential opportunity for a plea agreement typically results in disparate sentences, a major problem for correctional authorities. A defendant who reaches prison only to learn that his sentence is much longer than those of his counterparts who engaged in successful plea discussions is not a good prospect for rehabilitation. Parole authorities are not in a good position to 'equalize' under these circumstances; unless they make a careful investigation into the defendant's conduct, they are likely to assume that the defendant has already received leniency. NEWMAN ch. 3.
-5-
"Those defendants with counsel are likely to receive equal treatment. However, because some appointed counsel will have limited experience in criminal cases, it will also be necessary for the prosecutor to be concerned about equality in the plea discussion/plea agreement process. Such equality is needed to reach desired correctional goals, and also to protect the process from attack on equal protection grounds. See Oyler v. Boles, 368 U.S. 448 (1962). This does not mean that all defendants should be offered concessions or identical concessions; it does mean that the considerations relevant to the granting of concessions (such as those listed in § 1.8, supra) should receive attention whenever they are present.
"This objective would be better served if prosecution offices were to establish formal rules or procedures with respect to plea discussions and plea agreements. This is seldom the case currently. Note, 112 U.PA.L.REV. 865, 900 (1964).
"There are numerous factors which may appropriately influence prosecutors to make a plea agreement. The prosecutor should evaluate these factors and determine which he thinks his staff should consider. This will provide a common standard within each office and result in more consistency. Such a responsible attitude toward plea bargaining is a continuing obligation, and records should be kept on all plea arrangements to facilitate periodic examination of the general policy in operation."
Mr. Graham then moved to delete 11(b)(1)(C), because it would open a Pandora's box of who got what. Judge Murray seconded the motion and it carried. (Motion later withdrawn.)
Mr. Sand questioned the advisability of the use of the word "should" in 11(b)(2): "Defense counsel should conclude a plea agreement only with the consent of the Defendant, and shall ensure that the decision whether to enter a plea of guilty or nolo contendere is ultimately made by the Defendant." He said it was his understanding that "should" would be construed as advisory, but that he thought rules should be mandatory; otherwise, why have them? He said the Minimum Standards books are only urging something and the use of "should" in that context is proper, but that there is no place for guidelines in the promulgation of rules. Judge Muggli agreed with him.
Mr. Sand moved that the word "should" as found after "counsel" and before "conclude" be stricken and in lieu thereof the word "shall" be placed. Mr. Vogel seconded the motion.
After discussion, Mr. Sand made a substitute motion to use the word "may" in place of "shall" and delete the second clause, so 11(b)(2)(A) would read: "Defense counsel may conclude a plea agreement only with the consent of the Defendant." Judge Muggli seconded the substitute motion for the reason that "may" and "shall" are clear, but "should" is not.
Mr. Vogel said he was not sure the deleted clause [and shall ensure that the decision whether to enter a plea of guilty or nolo contendere is ultimately made by the Defendant] was redundant, because you could have a situation where the defendant would consent to a plea of guilty and in court discover the judge refused to go along with the plea bargain, but defendant would continue to plead guilty anyway. His lawyer would still have an obligation to make sure the defendant made the decision knowingly, and therefore clause one is not the same as clause two. After Mr. Glaser pointed out the sentence begins by talking about
-6-
plea agreement and ends up talking about entering plea, Mr. Vogel said he did not object to removing the last clause, since it was merely advisory anyway.
Mr. Graham withdrew his motion to delete 11(b)(1)(C), so the committee could consider Mr. Sand's amendment. The aye votes prevailed on Mr. Sand's substitute motion to amend 11(b)(2)(A), as underlined above (page 5).
In regard to 3(A), Judge Murray mentioned that according to the Minimum Standards, Pleas of Guilty, commentary, Section 3.3(a), page 72, a good percentage of judges take part in plea bargaining.
After discussion, Judge Muggli moved to amend 11(b)(3)(A) by striking the word "should" and using the word "shall" instead: "The Trial Judge shall not participate in plea discussions." Judge Smith seconded the motion and it carried. Mr. Sand's vote was the only one in opposition.
The chairman asked if there were any more motions in connection with the use of the word "should" in the draft.
Mr. Sand moved that in 11(b)(1)(A) the word "should" be changed to the word "may". Mr. Graham seconded it and the motion carried.
The committee decided the word "should" was all right in 11(b)(1)(B) and 11(b)(1)(C).
Mr. Vogel moved to change "should" to "shall" in 11(b)(3)(C)(c). Judge Smith seconded the motion and it carried.
After discussion, Mr. Sand moved to take the last sentence from 11(b)(3)(B) and put it at the end of (C)(c), designating it as (D), and add "with the plea agreement" after the word "concurs". Mr. Graham seconded the motion and it carried.
Mr. Glaser observed in regard to 11(b)(3)(C)(c), making plea discussions and agreements not admissible in evidence, that that is a rule of evidence, not a rule of procedure. The chairman suggested Judge Smith and Mr. Vogel should consider this and cover it in the annotations and provide a list of statutes to be included, deleted, and amended.
Mr. Vogel moved the adoption of Rule 11 as amended, along with revision of letter and numeral designations to conform to the rules as a whole. The motion was seconded by Judge Muggli and it passed.
Mr. Sand stated that by voting in favor of Rule 11 as amended he did not wish to imply directly or indirectly that he is withdrawing from his position objecting to having in the rules the plea of nolo contendere and that he still resisted the use. Mr. Vogel said he went along with Mr. Sand on that.
In regard to Rule 47, the chairman appointed Judge Smith as chairman of a subcommittee, to include Judge Murray and Mr. Shaft, to work out the problem of captions mentioned in the current draft of Rule 47 and come back with a recommendation.
On Friday, September 18, 1970, the committee reconvened at 9:40 a.m., with the following people present: Judge Erickstad Judge Muggli, Judge Smith, Mr. Sand, Mr. Graham, Mr. Glaser, and Mr. Shaft.
Mr. Sand reported that his subcommittee on Rule 6, Grand Jury had determined they could not do anything by rule, but that they would come up with a bill to present to the committee before the next legislative assembly.
-7-
The chairman called on Mr. Graham and he said the other members of his subcommittee had agreed the bill draft submitted by Judge Burdick could serve as text of the rule and that he was going to number it 24.1, Disqualification of Judges.
Mr. Graham then moved to reconsider the vote by which the committee approved Rule 21. Mr. Sand seconded the motion. Mr. Graham read his new proposed Rule 21(c) and made a motion for the further amendment, to include the addition of subsection (d). The motion was seconded by Mr. Sand and it carried.
Mr. Sand moved to strike all the language, "where the action or proceeding was commenced" in lines 8 and 9. Judge Smith seconded the motion and it carried.
Judge Muggli said district judges are authorized by Section 116 of the State Constitution to hold court in other districts and that Section 27-05-22, N.D.C.C., gives a list of reasons a judge may go outside his own district. He read the following:
27-05-22. District judges to act only within their districts--Exceptions.--No judge of a district court of this state shall hear or determine any action, special proceeding, motion, or application, or make any order, or give any judgment, in any action or proceeding pending or about to be commenced in a judicial district other than the one for which he was elected, except:
1. Upon the written request of a judge of such other district;
2. When, upon the application of either party to such action or proceeding and upon due notice to the opposite party, if he shall have appeared and is entitled to such notice, it shall be made to appear by affidavit to the satisfaction of such judge that the judges of such other district are absent from their district, incapacitated, or disqualified to act therein. Such application shall be made only to a judge of a district adjoining that in which such action or proceeding is pending or about to be commenced, and upon the hearing thereof counter affidavits may be used;
3. When designated by the supreme court to perform duties in another district as authorized by section 27-02-25;
4. When designated by the supreme court to act in such other district in the place and stead of a district judge thereof who has been disqualified by the filing of an affidavit of prejudice; or
5. A motion upon notice may be heard by a judge of a district court in which the action or proceeding is not pending in the cases provided by law only, either in the district in which the action or proceeding is pending or in an adjoining district, but such motion when heard by the judge of the district in which the action or proceeding is pending can be heard only in such district.
-8-
27-02-25. Supreme court may call special terms for district courts--Court may designate judge to preside.-The supreme court, whenever in its judgment the ends of justice require, may:
1. Order a special term of the district court to be called in any county in this state and may designate any one of the district judges in this state to call and preside at such term; and
2. Designate any district judge to serve in any other district of this state at such places and for such period as the supreme court shall in its order direct, and the district judge so designated shall have all the powers and authority in the district to which he shall be assigned as are possessed by the district judges in such district, subject to such restrictions as may be prescribed by the order of assignment by the supreme court.
The chairman said that a rule has the effect of law, but that Judge Muggli questioned this because the Constitution says "as prescribed by law", which he thought may mean statute rather than rule. Mr. Graham agreed to work on a proposed amendment to the law to eliminate any possible problem.
Mr. Graham moved to add a new subsection (d) and change the present subsection (d) to (e). Mr. Glaser seconded the motion and it carried.
Mr. Sand suggested that the heading of Rule 21, Transfer From the County for Trial, might give the impression it does not apply to municipal courts. Mr. Graham agreed that it could be clarified by adding "or municipality". Mr. Glaser said those rules always apply to municipal courts unless otherwise provided by statute. Judge Smith said if 40-18-21, N.D.C.C., is superseded the wording of this rule gives no notice of it.
After further discussion, Mr. Graham made a motion to amend 21(a) by changing the title, adding the words "or municipality". Mr. Sand seconded the motion and it passed.
Mr. Sand made a motion to amend 21(c) by adding "or municipality" after "county", which motion was withdrawn during the ensuing discussion of who was to pay the costs of the transfer. Mr. Glaser moved to amend it by adding "shall be paid by the originating municipality", but withdrew his motion, too.
Judge Smith moved to add,"The action or proceeding, except for the payment and collection of costs, shall be conducted in all respects as if it had been commenced in the court to which it is transferred." Mr. Graham seconded the motion. Mr. Glaser said that if this rule does not apply to costs, it should say that. It should say, "The costs shall be paid as provided by law." The chairman agreed that the committee might be going beyond its power mentioning costs. The secretary read Judge Smith's motion to the committee and Mr. Glaser said he agreed With the intent of the motion but didn't believe the draft was sufficiently clear to accomplish that purpose. The motion passed.
Mr. Graham moved to adopt Rule 21 as amended, and Mr. Shaft seconded the motion. It passed.
-9-
Rule 21, Transfer From the County or Municipality for Trial.
(a) For Prejudice in the County.
The court upon motion of the defendant shall transfer the proceeding as to him to another county whether or not such county is specified in the defendant's motion if the court is satisfied that there exists in the county or municipality where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial.
(b) Transfer in Other Cases.
For the convenience of parties and witnesses, and in the interest of justice, the court upon motion of the defendant may transfer the proceeding as to him to another county.
(c) Proceedings on Transfer.
When a transfer is ordered, the court shall transmit to the clerk of the court to which the action or proceeding is transferred all papers in the action or proceeding, or duplicates thereof, and any bail taken, and the prosecution shall continue in that county. Whenever the place of trial of a criminal action or proceeding is changed as provided in this rule, the prosecuting attorney of the county wherein the action or proceeding was commenced, or any other person appointed to prosecute, shall prosecute the case for the state, and the judge ordering the transfer shall preside at the trial. The action or proceeding, except for the payment and collection of costs, shall be conducted in all respects as if it had been commenced in the court to which it is transferred.
(d) Transfer of Records.
After acquittal or conviction in the action or proceeding, the clerk of the court to which the action or proceeding was transferred shall retransmit all papers in the action or proceeding to the clerk of the court in which the action was commenced.
(e) Transfer by Prosecution.
The prosecution may apply for a transfer of a criminal action as a defendant may apply, and the court being satisfied that it will promote the ends of justice, may order such removal upon the terms and to the extent and in the manner provided in this rule.
Judge Smith moved to defer consideration of Rule 41, Search and Seizure, to await further developments in the law, and Mr. Sand seconded the motion. There was no discussion and the motion carried.
Mr. Glaser noted he was concerned with 41(b) only and not 41(a) as recorded in the last minutes.
After lunch the committee reconvened and Mr. Vogel was in attendance and Mr. Glaser was not.
The chairman called on Mr. Vogel for his report on Rules 37 and 39 relating to appellate procedure and what the record consists of. Mr. Vogel said that the federal rules 37 and 39 have been rescinded and that the federal rules combine civil and criminal rules. He said the civil procedure committee of the State Bar Association has a subcommittee working on the rules of appellate procedure, including criminal procedure, and have come up with their fourth tentative draft. He said that it appears that the proposed Rules 3,4,8,9,10 and 19(a) correspond to our proposed Rules 37 and 39, and that he thought our rules should perhaps be drafted as closely as possible within the language of the proposed appellate rules.
-10-
The chairman said he thought Mr. Vogel and his subcommittee should proceed to propose something for Rules 37 and 39, whether they get them from the proposed state appellate rules or the federal, or a combination of the same. Mr. Vogel said he could do that and have it ready for the Saturday morning session. Mr. Sand suggested that Rules 37 and 39 might carry a footnote that they might be superseded by adoption of appellate rules, just to alert people to that. Mr. Vogel said they would be working on a table of superseded rules and statutes.
Mr. Vogel moved to delay consideration of Rule 45(b) until 39 and 37 have been acted on, since 45(b) refers to them. Judge Muggli seconded the motion and it carried.
Returning to Rule 47, Motions, Judge Smith said that 47(2) was added at an earlier meeting: "The rules applicable to captions, signing, and other matters of form of pleadings apply to all motions and other papers provided for by these rules." Judge Smith said Rule 58, Forms, takes care of the subject matter and it was the opinion of his subcommittee that Rule 47(2) should be deleted and the numeral (1) removed, and he so moved. Judge Murray seconded the motion and it carried.
Judge Smith moved that the whole rule be adopted as amended. Judge Murray seconded the motion and it carried. Rule 47 was adopted as amended.
Rule 47. Motions.
An application to the court for an order shall be made by motion which, unless made during a hearing or trial, shall be made in writing, shall state the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. The motion may be supported by affidavit.
Mr. Shaft read his draft of Rule 48(a), Dismissal.
Rule 48. Dismissal.
(a) By Prosecuting Attorney.
The prosecuting attorney may by leave of court file a dismissal of an indictment information, or complaint and the prosecution shall thereupon terminate. Such a dismissal may not be filed without the consent of the defendant.
(b) Left out.
Mr. Shaft said he had omitted (b), as Chapter 29-18, Dismissal of Prosecution, seemed to adequately cover this situation.
The chairman said he thought (b) should be retained in the rule and Chapter 29-18, N.D.C.C., deleted. Mr. Shaft read federal rule 48(b):
-11-
(b) By Court.
If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint.
Then Mr. Shaft read Chapter 29-18, N.D.C.C.:
29-18-01. Prosecution to be dismissed, conditions requiring--Information or indictment.--The court, unless good cause to the contrary is shown, must order a prosecution to be dismissed if:
1. A person has been held to answer for a public offense and an information is not filed or an indictment found against him at the next general term of the district court at which a jury is called;
2. A defendant whose trial has not been postponed upon his application is not brought to trial at the next term of the district court in which the information or indictment is triable after it is filed, if an information, or, after it is found, if an indictment.
29-18-02. Failure to prosecute--Continuance for cause.--If the defendant is not prosecuted or tried, as provided in section 29-18-01, and sufficient reason therefor is shown, the court may order the action to be continued from term to term and in the meantime may discharge the defendant from custody, on his own undertaking or on an undertaking of bail for his appearance, to answer the charge at the time to which the action is continued.
29-18-03 Dismissal--Exoneration of bail.--If the court directs an action to be dismissed, the defendant, if in custody, must be discharged therefrom, or if admitted to bail, his bail is exonerated, or if money is deposited in lieu of bail, it must be refunded to him.
29-18-04. Reasons for dismissal set forth in order.--The court, either of its own motion or upon the application of the state's attorney and in furtherance of justice, may order an action, information, or indictment to be dismissed, but in that case the reasons for the dismissal must be set forth in the order, which must be entered on the minutes.
29-18-05. Nolle prosequi abolished.--The entry of a nolle prosequi is abolished in this state, and the state's attorney cannot discontinue or abandon a prosecution for a public offense, except as provided in section 29-18-04.
29-18-06. Dismissal not a bar.--An order for the dismissal of an action as provided in this chapter is not a bar to any other prosecution for the same offense.
-12-
The committee then discussed the meaning of "held to answer", along with statutes of limitations and the Sixth Amendment right to a speedy trial.
The law clerk, Robert Wirtz, read from 38 U.S. Law Week 4403, III, as follows:
"Against this background of the purposes of the speedy trial safeguard, I turn to the question when during the criminal process the right attaches. A criminal prosecution has many stages, and delay may occur during or between any of them. It may take place at the beginning of the process: between the time at which the government decides to prosecute a man and has sufficient evidence to proceed against him and the actual time of his arrest or indictment. Or it may occur, for instance, between arrest and indictment, during trial or between trial and sentencing.
"Authorities agree that delay between indictment and trial is subject to the speedy trial safeguard, e.g., Lucas v. United States, 363 F.2d 500, 502 (C.A.9th Cir. 1966), and there is substantial authority that the right attaches upon arrest, e.g., Hardy v. United States, 343 F.2d 233, 234 (C.A.D.C.Cir. 1964). But see, e.g., Reece v. United States, 337 F.2d 852 (C.A.5th Cir. 1964). Similarly, it has been generally held that the Speedy Trial Clause applies to intervals between separate indictments or separate trials on the same charge, e.g. Williams v. United States, supra [250 F.2d 19, 23 (C.A.D.C.Cir. 1957)]. This Court has assumed arguendo, but has not decided, that the interval between judgment and sentencing is governed by the Clause, Pollard v. United States, supra [352 U.S. 354 (1957)], at 361; see also Welsh v. United States, 348 F.2d 885 (C.A.6th Cir. 1965). 1 have found no cases dealing with delay during the trial. With some exceptions, it has been held that the right to speedy trial does not apply to delays which occur before the defendant's arrest or indictment, e.g., Parker v. United States, 252 F.2d 680, 681 (C.A.6th Cir. 1958); Terlikowski v. United States, 379 F.2d 501, 503-504 (C.A.8th Cir. 1967).
"Does the speedy trial guarantee apply to all delays between a defendant's arrest and his sentencing? The view that it does is not without support in the wording of the Sixth Amendment. The Constitution says that an 'accused' is entitled to speedy trial 'in all criminal prosecutions.' Can it be that one becomes an 'accused' only after he is indicted, or that the Sixth Amendment subdivides 'prosecution' into various stages, granting the right to speedy trial in some and withholding it in others? In related contexts involving other clauses of the Sixth Amendment, we have held that the 'prosecution' of an 'accused' can begin before his indictment; for example, in Escobedo v. Illinois, 378 U.S. 478, 490 (1964), we spoke of the time when 'investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect.' And as regards realization of the purposes of the Speedy Trial Clause, the possibility of harm to interests protected by the Clause is certainly great whenever delay occurs after arrest."
Mr. Sand said that raised more questions than it answered. The meaning of the phrase "held to answer" was still in question. Mr. Sand read Section 29-04-05, N.D.C.C.:
29-04-05. When action is commenced.--An information is filed or an indictment found within the meaning of this chapter when it is presented, if an information, by the state's attorney or person appointed to prosecute, or, if an indictment,
-13-
by the grand jury, in open court, and there received and filed, or if a complaint, when filed by a magistrate having jurisdiction to hear, try, and determine the action.
Mr. Sand then made a motion to delete the first two lines of 48(b) and the third line through the word "or", so it would read: "(b) By Court. If there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint." The motion was seconded by Mr. Graham.
The discussion then turned to arrest without a warrant, writs of habeas corpus, and at exactly what time a person can be considered "held to answer to the court".
A vote on Mr. Sand's motion to amend resulted in a tie, and the chairman placed his vote in opposition, defeating the motion The chairman asked Mr. Sand and Mr. Shaft to do some research on that before the next meeting.
Mr. Vogel moved to amend subsection (b) by adding the words "arrested or" after the word "been" in the third line. ". . . who has been arrested or held to answer". The motion was seconded by Judge Smith.
Mr. Shaft read from Barron, Federal Practice and Procedure, Rules Edition, Volume 4, page 216 Supp. (1951) n. 6:
"Rule 48(b) imposes a stricter requirement of speed on the prosecution than does the Sixth Amendment. Maties v. U.S., 1967, 374 F.2d 312, ___ U.S.App.D.C. ___."
Judge Smith read from Wright, Federal Practice and Procedure § 815 Delay Prior to Commencement of Prosecution, 320, 321, and 322.
"The most volatile issue in connection with delays in the criminal process is whether, and to what extent, delay prior to indictment is ground for dismissal. The old orthodoxy was that the right to a trial guarded only against delay after indictment or the filing of an information. If the indictment, information was obtained within the period of the statute of limitations, that was the end of the matter. Some lower courts have been restive under this doctrine, and a recent statement by the Supreme Court that the statute of limitations 'is usually considered the primary guarantee against bringing overly stale criminal charges' suggested that it is not the only guarantee.
"In the first place, it is clear that if there was delay both before and after indictment, the extent of, and the necessity for, the pre-indictment delay is relevant in determining whether dismissal is required because of the delay following indictment.
"Second, even if an indictment is returned or information filed within the period of the statute of limitations, it must be dismissed if there was unnecessary delay in presenting the charge to the grand jury or in filing an information, after the defendant has been held to answer. Cases to the contrary ignore the specific language of Rule 48(b) on this point. It clearly applies to delays subsequent to arrest. Of course these, like any delays, do not require dismissal if they were justified."
Mr. Shaft read another note from Barron, page 218: "Pre-arrest delay is not ground for reversal in the absence of prejudice or oppressive design for delay. U.S. v. Sanchez, C.A.2d 1966, 361 F.2d 824."
-14-
Mr. Graham referred to an earlier Sanchez case noted on page 217:
"Failure to indict defendant until October 2d, and to try him until December 3d, on an offense committed in February and about which the government had known since May, was not unreasonable, even though October indictment immediately followed acquittal on offense committed in July, where omission of February offense from first indictment was without deliberation, and not the consequence of a scheme to enhance the chances of conviction. Sanchez v. U.S., C.A.9th, 1965, 341 F.2d 225, certiorari denied 86 S.Ct. 109, 382 U.S. 856, 15 L.Ed.2d 94."
Judge Muggli read from 8A Moore's Federal Practice 48-15, ¶ 48.03[2]--Scope of Speedy Trial Right; Pre-prosecution Delay.
"Rule 48(b) implements the defendant's constitutional right to a speedy trial, a right which the Supreme Court has termed 'one of the most basic rights preserved by our Constitution.' The speedy trial right attaches from the commencement of prosecution, whether by indictment or information, or complaint.
"Until recent years it was assumed that no constitutional protection was available to the defendant who was the victim of delay in initiating a prosecution. This preprosecution situation was thought to be adequately covered by applicable statutes of limitations which provide an automatic cutoff date, after which one is insured against the possible anxiety and harassment of meeting criminal charges and the difficulty of defending stale charges.
"The first clear exposition of a different rationale regarding preprosecution delay is found in a concurring opinion of Judge Skelly Wright in Nickens v. United States, a narcotics case. Judge Wright's opinion explained how this type of delay might prejudice a defendant more severely than in an ordinary speedy trial situation:
"'Indeed, a suspect may be at a special disadvantage when complaint or indictment, or arrest, is purposefully delayed. With no knowledge that criminal charges are to be brought against him, an innocent man has no reason to fix in his memory the happenings on the day of the alleged crime. Memory grows dim with the passage of time. Witnesses disappear. With each day, the accused becomes less able to make out his defense. If, during the delay, the Government's case is already in its hands, the balance of advantage shifts more in favor of the Government the more the Government lags.'
"Note 22: In United States v. Ewell, N 10 supra at 122, the Supreme Court referred to the statute of limitations as 'the primary guarantee against bringing overly stale criminal charges,' thus implying it was not exclusive. Note that the Ewell situation, i.e., delay caused by reversal and reindictment, is not properly treated as preprosecution delay:
"[T]he indictments and convictions of 1962 might well have enhanced appellees' ability to defend themselves, for they were at the very least put on early notice that the Government intended to prosecute them for the specific sales with which they were then and are now charged.' Id at 122. Cf United States v. Sherwood (DDC 1964) 38 FRD 14, dismissing an indictment which was returned just before the statute of limitations ran and then sealed for almost a year. While the
-15-
case presents some conceptual difficulties, the result essentially carried out the spirit of the statute of limitations.
"Two years later this rationale became the basis for the opinion in Ross v. United States, the leading case on preprosecution delay. There the court dismissed a narcotics indictment where there was '(1) a purposeful delay of seven months between offense and arrest, (2) a plausible claim of inability to recall or reconstruct the events of the day of the offense, and (3) a trial in which the case against appellant consists of the recollection of one witness refreshed by a notebook.'"
After discussion, a vote was taken on Mr. Vogel's motion to amend subsection (b) by adding the words "arrested or" after the word "been" in third line. Mr. Vogel and Judge Smith voted in favor of the amendment, and Judge Muggli, Mr. Graham, Mr. Shaft and Mr. Sand voted against it.
Judge Smith then made a motion to amend 48(b) by deleting all the words in the last line after "the" and inserting the word "prosecution", so the amended subsection would read: "(b) By Court. If there is unnecessary delay in presenting the charge to a grand jury or in filing an information or complaint against a defendant who has been arrested or for whose arrest a warrant has been issued, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the prosecution." The motion was seconded by Mr. Shaft.
During the discussion that followed, the Committee was unable to agree whether "has been held to a answer to the court" means an action of the court or of an arresting officer. Mr. Vogel read from 8A Moore's Federal Practice 48-12, note 5:
"A defendant is held to answer or 'bound over' by a finding of probable cause by the commissioner, or by a waiver of preliminary examination. Rule 5(c). Rule 48(b) does not apply to delay in according a defendant a preliminary examination. The remedy for such delay would be habeas corpus, if detained, and a motion made to the commissioner to dismiss the complaint. See ¶ 5.04[3] supra. Cf Crow v. United States (CA8th 1963) 323 F2d 888, 891 (motion erroneously made to district court)."
Mr. Sand moved to amend Judge Smith's motion to amend by deleting the words "been held to answer to the court" and substituting "been arrested". Mr. Graham seconded Mr. Sand's motion.
Judge Smith brought up the matter of a warrant for arrest against somebody in prison in another state. If the rule is limited to "after arrest", he would not have a right to move for trial in this state and would not have right to speedy trial.
Mr. Sand withdrew the motion which Mr. Graham had seconded. Mr. Graham proposed a substitute motion to Judge Smith's earlier motion, to delete "held to answer to the district court" and insert the words "arrest or for whose arrest a warrant has been issued", and in the last line delete the words "indictment, information or complaint" and insert the word "prosecution". Judge Smith seconded the substitute motion.
Mr. Shaft suggested the rule was becoming completely contrary to the federal rule as construed by the court. His was the only vote in opposition to the substitute motion. In favor were Judge Muggli, Mr. Vogel, Judge Smith, Mr. Graham, and Mr. Sand.
-16-
Judge Muggli said he wondered if some of the safeguards of the Colorado Rule 48, or even the exact rule, should be adopted. He read it to the committee.
Rule 48. Dismissal.
(a) By the State.
No criminal case pending in any court shall be dismissed or a nolle prosequi therein entered by any prosecuting attorney or his deputy, unless upon a motion in open court, and with the court's consent and approval. Such a motion shall be supported or accompanied by a written statement concisely stating the reasons for the action. The statement shall be filed with the record of the particular case and be open to public inspection. Such a dismissal may not be filed during the trial without the defendant's consent.
(b) By the Court.
If after the filing of a complaint there is unnecessary delay in finding an indictment or filing an information against a defendant who has been held to answer in a court of record, the court may dismiss the prosecution. If the trial of a defendant is delayed more than one year after the finding of the indictment or filing of the information, unless the delay is occasioned by the action or request of the defendant, the court shall dismiss the indictment or information; and the defendant shall not thereafter be tried for the same offense."
After discussion, Judge Muggli moved the further amendment of 48(a) by adding a sentence at the end of (a) to read: "A motion to dismiss by prosecuting attorney must be in writing and must set forth the reasons therefor." Then Judge Muggli moved that paragraph (a) be amended to read exactly as paragraph (a) of the Colorado rules, deleting "or a nolle prosoqui therein entered", strike "filed during the trial" and substitute "ordered", and change the title from "By the State" to "By Prosecuting Attorney". Mr. Graham seconded the motion.
Judge Smith moved to amend the motion further to delete the word "action" in the fifth line of the Colorado rule and insert the word "motion". Judge Muggli seconded the motion.
Both motions for amendment carried.
Judge Muggli then moved to delete "or his deputy" and Mr. Sand seconded the motion. It carried.
Mr. Shaft moved to adopt Rule 48(a) and (b) as amended. Judge Muggli seconded the motion and it carried. Judge Muggli said he would help Mr. Shaft with the annotations.
Rule 48(a) and (b) was adopted to read as follows:
Rule 48. Dismissal.
(a) By Prosecuting Attorney.
No criminal case pending in any court shall be dismissed by any prosecuting attorney unless upon a motion in open court, and with the court's consent and approval. Such a motion shall be supported or accompanied by a written statement concisely stating the reasons for the motion. The statement shall be
-17-
filed with the record of the particular case and be open to public inspection. Such a dismissal may not be ordered without the defendant's consent.
(b) By the Court.
If there is unnecessary delay in presenting the charge to a grand jury or in filing an information or complaint against a defendant who has been arrested or for whose arrest a warrant has been issued, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the prosecution.
The chairman called on Mr. Graham for his proposed new draft of Rule 24.1, regarding disqualification of trial judges, and Mr. Graham read it to the committee:
Rule 24.1. Disqualification of Trial Judge by Action of a Party.
(a) Certificate for Change of Judge.
Any party to a criminal action or proceeding pending in any of the courts of this state may file a certificate naming a specific judge and stating that the party prefers to have a different judge try or hear the matter. Thereupon the named judge shall proceed no further and shall be disqualified from doing any further act in the cause. Such certificate may be made by the party or his attorney on his behalf.
(b) Time of Filing Certificate.
The certificate for change of judge may be filed at any time, subject to the following limitations:
(1) The certificate must be filed at least eight days prior to the beginning of a term in which the matter is to be tried on its merits, or not more than two days after receipt of notice of a hearing or other proceeding before a named judge;
(2) The certificate cannot be filed if the named judge has already heard or decided any contested matter involving the cause.
(c) Supreme Court to Designate Judge.
Upon the filing of a certificate for change of judge, the clerk shall give notice immediately to the judge who is disqualified by delivering to him a copy of such certificate. Another copy thereof shall be forwarded promptly by the clerk to the clerk of the supreme court. Upon receipt of the certificate from a clerk of court, the supreme court shall designate a judge to act in the place and stead of the judge disqualified.
(d) Judge to Conduct Matter Forthwith--Notice to Parties.
Any judge designated by the supreme court to act in a cause to which he has been assigned, as soon as possible after receiving such notice from the supreme court, unless agreement to the contrary is made by the parties, shall proceed, first giving to the parties or their attorneys reasonable notice of the date of hearing or trial.
-18-
(e) Expenses of Judge Designated.
The actual expenses of a judge designated to try or hear a matter in which a certificate has been filed, upon furnishing a voucher therefor to the state auditor, shall be approved for payment and paid by the state treasurer out of the general fund.
(f) Only One Change of Judge Allowed by Certificate.
Not more than one change of judge shall be granted upon a certificate to any party. However, either before or after a change of judge upon a certificate, a party may utilize an affidavit of prejudice as provided in this rule.
(g) Prejudice or Bias of Judge--Affidavit--Filing.
Any party to a criminal action or proceeding pending in any of the courts of this state, at least eight days prior to a term at which the litigation is to be tried on its merits, or not more than two days after receipt of a notice of a hearing or other proceeding before a named judge may file an affidavit stating that he has reason to believe and does believe that he cannot have a fair and impartial hearing or trial before the judge presiding at such hearing or trial, by reason of the prejudice or bias of the judge. Such affidavit may be made only by the party personally.
(h) Affidavit of Prejudice--Contents.
Whenever an affidavit of prejudice or bias against any judge shall be filed pursuant to paragraph (g) of this rule, there shall be stated in the affidavit, in addition to the matter prescribed by paragraph (g), the following:
1. The nature of the action;
2. The date when issue was joined;
3. The date-of the opening of the term at which the cause is to be tried or the date of the hearing or proceeding for which notice has been received;
4. The name of the judge to preside at such hearing, proceeding, or term;
5. A statement that the affidavit is filed in good faith and not for purposes of delay; and
6. The specific grounds and facts which gave rise to the belief that the party cannot have a fair and impartial hearing or trial before the judge.
(i) The Supreme Court to Designate Judge and to Determine Sufficiency of Affidavit of Prejudice.
Upon receipt of an affidavit of prejudice from a clerk of court, the supreme court shall forthwith determine whether the affidavits establish bias or prejudice on the part of such judge. No opposing affidavits or certificates shall be received from any other party or from the judge involved. No hearing shall be had. If the supreme court determines that the affidavit of prejudice does not show grounds and facts which reasonably would show bias or prejudice, the moving party shall not be entitled to a change of judge. If, however, the supreme court decides that the affidavit does show grounds and facts which reasonably would show bias or prejudice, then
-19-
the supreme court shall designate a judge to act in the place and stead of the judge disqualified. Thereupon the judge against whom the affidavit of prejudice was filed shall proceed no further and shall be disqualified from doing any further act in the cause except to decide matters previously submitted to him, or on which he must decide as the judge who has already heard a matter or presided at a trial, to make orders or judgments thereon.
(j) Judge Designated to Proceed Forthwith--Notice to Parties.
Any judge designated by the supreme court to act in a cause to which he has been assigned, as soon as possible after receiving such notice from the supreme court and during the same term unless agreement to the contrary is made by the parties, shall proceed to hear the motion or proceeding, or proceed with the trial of said cause, as may be appropriate, first giving to the parties or their attorneys reasonable notice of the date of the hearing or trial.
Mr. Graham explained that this is the bill from Judge Burdick in rule form and suggested striking everything regarding affidavits of prejudice.
Judge Smith read Section 27-08-27, N.D.C.C.:
27-08-27. Change of judge for trial of civil action in county court having increased jurisdiction.--If a party to a civil action in a county court having increased jurisdiction, after issue is joined therein and before the opening of a term of such court at which the cause is to be tried, shall file his affidavit, corroborated by the affidavit of his attorney and that of at least one other reputable person, stating that there is good reason to believe that such party cannot have a fair and impartial trial of said action by reason of the prejudice, bias, or interest of the judge of such court, such judge shall proceed no further in such action, but, forthwith, shall certify all proceedings therein to the district court of the county for trial or shall request, arrange for, and procure the county judge of some other county court having increased jurisdiction to preside at the trial thereof in the county in which the action is pending. The actual expenses of such judge while in attendance upon the trial of the cause for which the change was had and the extra expense of the court and jury incurred by reason of such change shall be paid in advance by the person asking for the change, or such person shall give a bond for the payment thereof. If a bond is given, the same shall be approved by the clerk of such court and the amount thereof shall be fixed by the presiding judge. Not more than one such change shall be granted on the application of either party, and a failure to file such affidavit of prejudice within the time specified shall constitute a waiver of all objections to the trial of such action by the presiding judge of such county court.
The chairman asked if the committee thought the privilege of changing judges should be extended all the way down to municipal courts. Judge Smith said it could be the only defense somebody might have before an untrained court. Mr. Vogel said it would create respect for the law by making some people feel better.
-20-
Mr. Sand read Section 27-08-38, N.D.C.C.:
27-08-38. Change of judge for trial of criminal action in county court having increased jurisdiction.--If the defendant in a criminal action in a county court having increased jurisdiction, before the opening of a term of such court at which such action is to be tried, or if a trial thereof has been had without a verdict, at the term at which said trial was had and before another trail of the action is begun, shall file his affidavit stating that he has good reason to believe and does believe that he cannot have a fair and impartial trial of such action by reason of the bias, prejudice, or interest of the judge of such court, such judge shall proceed no further in such action, but, forthwith, shall certify all proceedings in such action to the district court of the county for trial or shall request, arrange for, and procure the county judge of some other county court having increased jurisdiction to preside at the trial thereof in the county in which the action is pending. The actual expenses of such judge while traveling to and from the county to which he has been called and during the trial of such action shall be paid by the county in which the action is pending. Not more than one such change shall be granted on the application of such defendant.
Mr. Graham asked to withdraw his proposed draft and asked that the subcommittee which was responsible for this draft would continue to the next meeting. The chairman suggested he should have Judge Heen's letter in mind when he worked on his new draft.
The discussion then moved to the potential difficulties of having a disqualified judge choose his own replacement. Judge Muggli made a motion, as the consensus of the group, that the words "affidavit of prejudice" be discontinued and "certificate for change of judge" be used instead, and that every litigant have an absolute right to a change of judge once by simply filing a certificate. Mr. Shaft seconded the motion and, after further discussion, it carried.
Returning to Rules 37 and 39, the chairman called on Mr. Vogel, who read his new drafts. Mr. Vogel moved the adoption of proposed Rule 37, and Mr. Sand seconded the motion. The committee discussed the changes involved from the present rule and the chairman said what was behind the proposed rule, in criminal cases especially, was an attempt to give the defendant every opportunity to be sure his appeal is effective, that it won't be thrown out on a technicality. The chairman mentioned that at one time the Legislature passed a procedural stature amending a rule and the supreme court had to re-adopt its rules to repeal the legislative action and put its rules back into effect. He suggested avoiding that by making the rules meet with the sentiments of the Legislature.
Mr. Vogel moved to have action on Rule 37 deferred to the next meeting, so the subcommittee could consider, among other things, when the prosecution should have the right to appeal in all courts. Mr. Graham seconded the motion and it carried.
Mr. Vogel said he would prefer to wait and consider Rule 39 together with Rule 37 at the next meeting. Mr. Vogel said he would do some reading on the right of the State to appeal.
-21-
The time for the next meeting was set for 1:00 p.m., December 10, 11 and 12, 1970.
Respectfully submitted,
Lorna L. Bender, Secretary