Joint Procedure Committee Meeting

Scheduled on Thursday, September 26, 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

September 26, 1968

The Joint Committee of the Judicial Council and the State Bar Association for the Adoption of Rules of Criminal Procedure met at 9:18 a.m., Thursday, Sept. 26, 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;
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;
District Judge Norbert J. Muggli;
County Judge Kirk Smith;
Mr. Roger Persinger;
Mr. John A. Graham.

Also present were:
Mr. Dennis A. Schneider, law clerk;
Mrs. Rebecca Quanrud, secretary.

Mr. Glaser moved that the secretary give a resume of the minutes of the meeting of July 25-26. Mr. Sand seconded the motion. The motion carried, and the resume was given.

The secretary reported that Judge Muggli, who has been studying the question whether the rules should apply to juvenile cases, had told her that, having investigated the subject and having consulted with Judge Burdick, it was his opinion that the matter is too complicated and the rules should not apply to juvenile cases.

The chairman called on Mr. Vogel for a further report on his research on plea bargaining. Mr. Vogel said that he had found a good deal more material and asked for more time to draft a rule, which was granted.

The chairman asked Judge Ilvedson if he had prepared a revised version of Rule 7(c), which it is necessary to change because of the failure of SCR "UU" in the September election. Judge Ilvedson replied that he would prepare a new text of Rule 7(c) for submission later.

Judge Ilvedson read Judge Muggli's recommendation regarding the amendment of complaints, and in accordance therewith, Judge Ilvedson moved that the action by which the committee adopted Rule 3 be reconsidered, that the present wording of Rule 3 be retained and denominated as Rule 3(a), and that the following wording be added as section (b):

(b) The magistrate may permit a complaint to be amended at any time before a finding or verdict if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.

Mr. Sand seconded the motion. There followed a discussion of the meaning of the word magistrate. It was noted that N.D.C.C. § 12-01-04(12), Definitions of terms, § 29-01-13(5), Definitions, and § 29-01-14, Who are magistrates, all contain definitions of the word.

The question being on Judge Ilvedson's motion, the motion carried. Judge Ilvedson stated that he wished his vote to be recorded as "passed."

Rule 3 as adopted reads:

Rule 3. The Complaint.

(a) The complaint is a written statement of the essential facts constituting the offense charged. It shall be made upon oath before a magistrate of this state who may examine on oath the complainant and other witnesses as well as receive an affidavit or affidavits filed with the complaint. If the magistrate examines the complainant or other witnesses on oath, he must cause their statements to be reduced to writing and to be subscribed by the persons making them.

-2-

Minutes of the meeting of Sept. 26-27, 1968 - p. 2

Judge Ilvedson read his draft of Rule 15(a) as follows:

Rule 15. Depositions.

(a) When and How Taken. If it appears that a prospective witness may be unable to attend or prevented from attending a trial or hearing, that his testimony is material, and that it is necessary to take his deposition in order to prevent a failure of justice, the court at any time after the filing of an indictment or information may upon motion of a defendant OR THE PROSECUTOR and notice to the parties order that his testimony be taken by deposition and that any designated books, papers, documents, or tangible objects, not privileged, be produced at the same time and place. If a witness is committed for failure to give bail to appear to testify at a trial or hearing, the court on written motion of the witness, or on its own motion, and upon notice to the parties, may direct that his deposition be taken. After the deposition has been subscribed the court may discharge the witness.

Judge Ilvedson noted that the draft is taken from the federal rule, but that the capitalized phrase is taken from the Colorado rule and underscored phrase from the Alaska rule. He read from the annot., 90 A.L.R. 372 (State ex rel. Drew v. Shaughnessy, 249 N.W. 522, Wis. 1933). He noted that N.D.C.C. § 31-03-25, Summoning witness in this state to testify in another state, and § 31-03-28, Witness from another state summoned to testify in this state, are affected statutes. He commented that at the preliminary hearing or about that time, the State can apply to the judge for an undertaking on the part of the witness to permit a conditional examination of that witness, and it can be used at the trial

Mr. Vogel asked how much pretrial discovery are we going to allow.

Judge Ilvedson read his drafts of Rule 15(b), (c), (d), (e), and (f) as follows:

Rule 15. Depositions.

(b) Notice of Taking. The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition. The notice shall state the name and address of each person to be examined. On motion of a party upon whom the notice is served, the court for cause shown may extend or shorten the

time.

(c) Defendant's Counsel and Payment of Expenses. If a defendant is without counsel the court shall advise him of his right and assign counsel to represent him unless the defendant elects to proceed without counsel or is able to obtain counsel. If it appears that a defendant at whose instance a deposition is to be taken cannot bear the expense thereof, the court may direct that all expenses of travel and subsistence

of the defendant's attorney for attendance at the examination shall be paid by the state. In that event payment shall be made accordingly UPON APPROVAL OF A DISTRICT JUDGE OF THE DISTRICT IN WHICH THE INFORMATION OR INDICTMENT IS FILED.

[Judge Ilvedson noted that (b) is an exact copy of the federal and Alaska rules, and that (c) is a copy of the Alaska rule except for the capitalized phrase, which he added. He said the federal rule (c) was the same as Alaska's except that the federal rule reads the instead of all and government instead of state.]

-3-

Minutes of the meeting of Sept. 26-27, 1968 - p. 3

(d) How Taken. A deposition shall be taken in the manner provided in civil actions. The court at the request of a defendant may direct that a deposition be taken on written interrogatories in the manner provided in civil actions.

(Judge Ilvedson noted that his (d) is an exact copy of the federal and Alaska rules.]

(e) Use. At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used if it appears:

(1) That the witness is dead;

(2) That the witness is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or

(3) That the party offering the deposition has been unable to procure the attendance of the witness by subpoena.

Any deposition may also be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. If only a part of a deposition is offered in evidence by a party, an adverse party may require him to offer all of it which is competent and relevant to the part offered, and any party may offer other parts.

[Judge Ilvedson noted that (e) is an exact copy of the Alaska rule, which is a copy of the federal rule except that the federal rule reads United States instead of state, and Alaska has added the words competent and.]

(f) Objections to Admissibility. Objections to receiving in evidence a deposition or part thereof, may be made as provided in civil actions.

[Judge Ilvedson noted that (f) is an exact copy of the federal and Alaska rules.]

Judge Ilvedson read his discussion of Rule 15, noting that ch. 31-6, Depositions in Criminal Actions, would be superseded. He noted that Colorado provides that either the prosecutor or the defendant may request an order for the taking of a deposition of a witness; and that it appeared to him that the last part of Federal Rule 15(a) permits a deposition of a government witness to be taken if the witness is committed for failure to give bail to appear and testify. He asked why should we not permit depositions of a state witness to be taken in the first instance without the necessity of committing the witness. He said that the Ward County State's Attorney had told him that there is a definite need for the right of taking depositions of witnesses for the state. He noted that later the committee will consider Rule 46, Bail, wherein the state or the defendant can ask the court to require a material witness to give bail for his appearance as a witness.

Discussion followed. Judge Ilvedson said that he had begun to have doubts about the desirability of including the words or the prosecutorin Rule 15(a). He moved that the words or the prosecutor be stricken from the draft of Rule 15(a) and that the draft be adopted as amended. Judge Morris seconded the motion.

A discussion of other sections of Rule 15 followed, with particular reference to the court's power to designate the place for the taking of the deposition.

-4-

Minutes of the meeting of Sept. 26-27, 1968 - p. 4

Judge Erickstad noted that an article in point is Judge Traynor's Ground Lost and Found in Criminal Discovery, 39 N.Y.U. L. Rev. 228 (Apr. 1964).

Mr. Vogel moved that Rule 15(a) be further amended by deleting the words If it appears that a prospective witness may be unable to attend or prevented from attending a trial or hearing, that his testimony is material and substituting in lieu thereof the words If it appears that the testimony of a prospective witness is material and that it is necessary to take his deposition in order to prevent a failure of justice. On question by Mr. Shaft, Mr. Vogel said that he was offering his amendment for the reason of discovery. Mr. Shaft seconded the motion.

Mr. Glaser moved that consideration of Rule 15(a) be postponed until the next meeting. Mr. Vogel seconded the motion. The question being on Mr. Glaser's motion, the motion carried.

Mr. Shaft suggested that the committee consider the possibility of adding the word complaint to indictment or information in Rule 15(a). The chairman appointed Judge Ilvedson and Mr. Shaft to make a further study of Rule 15(a).

Judge Ilvedson moved that Rule 15(b) be adopted as read, with the addition of the following sentence: "The court may designate some other place for the taking of the deposition if the substantial rights of the defendant will not be affected thereby." Mr. Sand seconded the motion. It was noted that this addition was consistent with Rule 52, Harmless Error. The question being on Judge Ilvedson's motion, the motion carried.

Rule 15(b) as adopted reads:

Rule 15. Depositions.

Judge Ilvedson moved the adoption of Rule 15(c) as read. Judge Morris seconded the motion.

Mr. Vogel noted that if the words or the prosecutor are put back into Rule 15(a), it will be necessary to amend Rule 15(c).

Judge Ilvedson discussed State ex rel. Drew v. Shaughnessy, supra.

Mr. Shaft moved that Rule 15(c) be amended by deleting the words a district judge of the district in which the information or indictment is filed and inserting in lieu thereof the words the court. Mr. Vogel seconded the motion. The motion carried.

Mr. Glaser mentioned the terminology used in § 29-07-01.1, Appointment of counsel for indigents, which provided for payment by the county.

-5-

Minutes of the meeting of Sept. 26-27, 1968 - p. 5

Mr. Glaser moved that Rule 15(c) be amended by deleting the word state and inserting in lieu thereof the words county wherein the alleged offense took place. Judge Ilvedson seconded the motion. Following discussion, Mr. Glaser withdrew his motion and Judge Ilvedson withdraw his second.

Mr. Sand moved that Rule 15(c) be amended by deleting the words by the state and inserting in lieu thereof the words as provided by law. Mr. Glaser seconded the motion. The motion carried.

Judge Ilvedson noted that no provision for payment by municipalities exists under this rule or under the statute.

The question being on the adoption of Rule 15(c) as amended, the motion carried.

Rule 15(c) as adopted reads:

Rule 15. Depositions.

Judge Ilvedson moved that Rule 15(d) be adopted as read. Mr. Sand seconded the motion. The motion carried. [For text see p. 3 of these minutes.]

Judge Ilvedson noted that one state recommends that a deposition be taken before a judge, but that the federal and Alaska rules do not seem to think it necessary.

Judge Ilvedson moved that it be noted that N.D.C.C. ch. 31-06 will be superseded by Rule 15. Mr. Sand seconded the motion. The motion carried.

Judge Ilvedson moved the adoption of Rule 15(e) as read. Mr. Glaser seconded the motion. Discussion followed, and a number of suggestions for change in wording were made. The chairman appointed a subcommittee of Judge Ilvedson, chairman, Mr. Glaser, and Mr. Vogel to work on a revision of Rule 15(e) during the lunch hour.

Judge Ilvedson moved that Rule 15(f) be adopted as read. Mr. seconded the motion. The motion carried. [For text see p. 3 of these minutes.]

A further discussion of whether prosecutors should be included in Rule 15(a) followed.

Judge Erickstad noted that § 31-03-25, et seq., which have to do with summoning witnesses, are statutes which will be affected by Rule 15.

Mr. Sand stated that he believed it would be beneficial to include prosecutors in Rule 15(a).

-6-

Minutes of the meeting of Sept. 26-27, 1968 - p. 6

Mr. Vogel said that it would allow the state to handle some problems which it cannot deal with now. He mentioned mail fraud, saying that the present procedure is so cumbersome that the federal government has to step in.

Judge Ilvedson said that in regard to bail for witnesses, there is already some procedure. He mentioned Rule 46.

A discussion of Rule 15(e) followed. The consensus was that perhaps it should be made more difficult for the State in use of depositions.

Mr. Glaser read Rule 27(a) of the proposed uniform rules of criminal procedure drafted by the National Conference of Commissioners on Uniform State Laws in 1952, which has to do with use of depositions. He noted that their comment states that the statutes of 17 states permit the taking of depositions at the instance of the prosecution, as does Missouri Rule 25.18, that provision for doing so was made in the preliminary drafts of the federal rules but was eliminated in the rules as promulgated, and that its omission has been criticized, citing Dession, The New Federal Rules of Criminal Procedure: II, 56 Yale L.J. 197 (1947).

The meeting recessed at 12:00 p.m. and reconvened at 1:35 p.m., with the same persons present as before and also Mr. Roger Persinger.

The secretary read a letter from Former Supreme Court Judge William S. Murray, stating that office problems prevented his attendance at the entire meeting and expressing the hope that he would be able to attend part of the meeting.

Mr. Vogel read from Discovery in Criminal Cases, 44 F.R.D. 481. He said that he feels that the matter of discovery in criminal cases is so broad that the committee should give it more thought.

Judge Ilvedson read the subcommittee's draft of Rule 15(e) and moved its adoption. Mr. Vogel seconded the motion. The motion carried. Rule 15(e) as adopted reads:

Rule 15. Depositions.

(e) Use. At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used if it appears:

(1) the witness is dead, or

(2) the witness is unable to attend or testify because of sickness or infirmity, or

(3) the party offering the deposition has been unable to procure the witness' attendance by subpoena, or

(4) the witness is out of the state, his presence cannot be secured by subpoena or other lawful means, and his absence was not procured by the party offering the deposition.

[Judge Erickstad suggests that Jencks v. U.S., 226 F.2d 540 (5th Cir.), 226 F.2d 553 (5th Cir.), 77 S.Ct. 1007, 353 U.S. 657, 1 L.Ed.2d 1103 and subsequent federal legislation (The Jencks Act, 18 U.S.C.A. § 35 regarding this subject, should be studied.]

-7-

Minutes of the meeting of Sept. 26-27, 1968 - p. 7

Judge Morris read his draft of Rule 18 and moved its adoption, with the addition of the words or these rules at the end of the sentence. Mr. Sand seconded the motion. The motion carried.

Rule 18 as adopted reads:

Rule 18. Venue.

Place of Trial. In all criminal prosecutions, the trial shall be in the county in which the offense was committed, except as otherwise provided by law or these rules.

The chairman called on Mr. Sand to read his draft of Rule 19. Mr. Sand first remarked that proposed North Dakota Rule 19 bears no relation to Federal Rule 19, which has been rescinded, but instead supersedes § 29-09-03, Prosecution on information without waiting for term of court, and § 29-09-04, Appearance in court--Chambers--Plea. He then read his drafts of Rules 19 and 20 and his discussion of them, stating that his draft of Rule 20 follows substantially the federal rule. His drafts follow:

Rule 19. Prosecution on Information Outside of County Before Any Judge Within Judicial District Without Waiting for Term of Court.

(a) Whenever a defendant, who after preliminary examination or waiver thereof is held for trial in a county in which a district judge is not conveniently available, desires forthwith to enter a plea of guilty, he may make a written confession of guilt and so inform the state's attorney, who shall prepare a duly verified statement to that effect and present same, together with the written confession of guilt, to any district judge within the judicial district of which such county is a part. Such statement shall constitute authority for the district judge to order the state's attorney of the county wherein said defendant is being held to forthwith file a criminal information against such defendant with the clerk of the district court of such county.

(b) When such criminal information is presented to the clerk of district court, as provided for in Subdivision (a) of this rule, the clerk shall file same and it shall be as valid as though same were filed in open court during a term for said court duly called and convened. After the information has been filed, the state's attorney, with the clerk of court of said county and the defendant, may appear in chambers before any district judge within the judicial district of which said county is a part. Said district judge may arraign the defendant, receive the plea of guilty and pronounce final judgment and sentence thereon with the same force and effect as though the same were done in open court in the county in which such information was filed. The clerk of court of the county in

which the information was filed shall keep the minutes and records of the proceedings and shall enter judgment and sentence in the records of his office in the same manner as if the proceedings had taken place in his county.

(c) If, upon arraignment without the county as provided for under Subdivision (b) of this rule, the defendant does not enter a plea of guilty or does not desire to do so, the defendant may be tried thereafter on such information or on another information filed in term time, as the state's attorney may elect, but the written confession of guilt may not be used in any event without the consent of the defendant.

-8-

Minutes of the meeting of Sept. 26-27, 1968 - p. 8

Rule 20. Transfer from the County for Plea and Sentence.

(a) Indictment, Information, or Complaint Pending. A defendant arrested or held in a county other than that in which the indictment, information, or complaint is pending against him may state in writing that he wishes to plead guilty, to waive trial in the county in which the indictment, information, or complaint is pending and to consent to disposition of the case in the county in which he was arrested or is held, subject to the approval of the prosecuting attorney for each county. Upon receipt of the defendant's statement and of the written approval of the prosecuting attorneys, the clerk of the court or the court in which the indictment, information, or complaint is pending shall transmit the papers in the proceeding or certified copies thereof to the clerk of the court or court for the county in which the defendant is held and the prosecution shall continue in that county.

(b) Effect of Not Guilty Plea. If, after the proceeding has been transferred pursuant to Subdivision (a) of this rule, the defendant pleads not guilty, the clerk of court or the court shall return the papers to the court in which the prosecution was commenced and the proceeding shall be restored to the docket of that court. The defendant's statement that he wishes to plead guilty shall not be used against him without his consent.

A discussion of the draft of Rule 19(a) followed. It was generally agreed that it should be amended as follows: Delete the words confession of guilt and so inform the state's attorney who shall prepare a duly verified statement to that effect a present same, together with the written confession of guilt and insert in lieu thereof the words statement to that effect and present it to the state's attorney, who shall present same. Mr. Sand moved the adoption of Rule 19(a) as amended. Judge Ilvedson seconded the motion. The motion carried.

Rule 19(a) as adopted reads

Rule 19. Prosecution on Information Outside of County Before Any Judge within Judicial District Without Waiting for Term of Court.

(a) Whenever a defendant, who after preliminary examination or waiver thereof is held for trial in a county in which a district judge is not conveniently available, desires forthwith to enter a plea of guilty, he may make a written statement to that effect and present it to the state's attorney, who shall present same to any district judge within the judicial district of which such county is a part. Such statement shall constitute authority for the district judge to order the state's attorney of the county wherein said defendant is being held to forthwith file a criminal information against such defendant with the clerk of the district court of such county.

Mr. Sand moved that Rule 19(b) be adopted as read. Mr. Persinger seconded the motion. The motion carried. [For text see p. 7 of these minutes.]

Mr. Sand moved that Rule 19(c) be adopted as read except that the words confession of guilt be deleted and the word statement be inserted in lieu thereof. Judge Morris seconded the motion.

-9-

Minutes of the meeting of Sept. 26-27, 1968 - p. 9

After discussion Mr. Sand agreed to amend his motion by including the further amendment of Rule 19(c) by the insertion of the words in the county in which the information was originally filed after the word thereafter. Judge Morris agreed to the amendment of the motion. The question being on Mr. Sand's motion, the motion carried.

Rule 19(c) as adopted reads:

Rule 19. Prosecution on Information Outside of County Before Any Judge Within Judicial District Without Waiting for Term of Court.

(c) If, upon arraignment without the county as provided for under Subdivision (b) of this rule, the defendant does not enter a plea of guilty or does not desire to do so, the defendant may be tried thereafter in the county in which the information was originally filed on such information or on another information filed in term time, as the state's attorney may elect, but the written statement may not be used in any event without the consent of the defendant.

Mr. Sand moved the adoption of Rule 20(a) and (b) as read. Mr. Persinger seconded the motion. The motion carried. [For text see p. 8 of these minutes.]

Mr. Persinger read his draft of Rule 21 as follows:

Rule 21. Transfer from the County 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 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 clerk shall transmit to the clerk of the court to which the proceeding is transferred all papers in the 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 is changed as provided for in this rule, the state's attorney of the county, or any other person appointed to prosecute where the action was commenced, shall prosecute the case for the state. The court to which the action is transferred shall have full jurisdiction and authority to hear, try, and determine the same, and upon conviction, to impose the punishment prescribed by law. The proceeding shall be conducted in all respects as if the action had been commenced in said court and the costs accruing from a change of the place of trial and the costs of the trial shall be paid by the county where the offense was committed or otherwise as provided by law.

(d) Transfer by State. The state's attorney, on behalf of the state, 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.

-10-

Minutes of the meeting of Sept. 26-27, 1968 - p. 10

Mr. Persinger read his comments on Rule 21, noting that is counterpart is in §§ 29-15-01 through 29-15-12. He said that he would recommend the repeal of all those sections and noted that section (c) incorporates § 29-15-12. He said that he had added section (d), incorporating § 29-15-11, which permits the state to ask for a change of venue on the same basis and in the same manner as a defendant; that of the states which have adopted this rule, as set forth in the study material, apparently only Arizona and Montana have incorporated such a provision that he has some reservation about this procedure and can think of no valid reason justifying it; that to his knowledge the federal criminal rules or statutes have no such provision; and that he would as soon leave it out. He said that in a case in which there are multiple defendants jointly charged and fewer than all move for a change of venue, the movant(s) could in a proper case be severed from the non-moving codefendant(s) under Rule 14.

Discussion followed. Mr. Persinger said that he had changed his mind and now believed the State should have the option of asking for change of venue.

Mr. Persinger moved the adoption of Rule 21. Mr. Sand seconded the motion.

Mr. Shaft asked if the rule would apply to municipal courts. He noted that § 40-18-20, Affidavit of prejudice, and 40-18-21, Change of venue in municipal court, are in point, and that on appeal to a higher court, the defendant can get a change of venue. He said that he thought the rule was acceptable if the statutes are retained.

Mr. Persinger moved that the draft of Rule 21(c) be amended in the first sentence by deleting the word clerk where it first occurs and inserting in lieu thereof the word court and by deleting the words the clerk of. Mr. Sand seconded the motion. The motion carried.

Mr. Persinger moved that the draft of Rule 21(d) be amended by deleting the words state's attorney, on behalf of the state and inserting in lieu thereof the word prosecution. Mr. Sand seconded the motion. The motion carried.

The question being on the adoption of Rule 21 as amended, the motion carried.

Rule 21 as adopted reads:

Rule 21. Transfer from the County for Trial.

(a) For Prejudice in the County. [For text see p. 9 of these minutes.]

(b) Transfer in other cases. [For text see p. 9 of these minutes.]

(c) Proceedings on Transfer. When a transfer is ordered the court shall transmit to the court to which the proceeding is transferred all papers in the 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 is changed as provided for in this rule, the prosecuting attorney of the county, or any other person appointed to prosecute where the action was commenced, shall prosecute the case for the state. The court to which the action is transferred shall have full jurisdiction and authority to hear, try, and determine the same, and upon conviction, to impose the punishment prescribed by law. The proceeding shall be conducted in all

-11-

Minutes of the meeting of Sept. 26-27, 1968 - p. 11

respects as if the action had been commenced in said court and the costs accruing from a change of the place of trial and the costs of the trial shall be paid by the county where the offense was committed or otherwise as provided by law.

(d) Transfer by State. 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.

Mr. Glaser moved that the secretary be authorized to change the words state's attorney wherever they appear in the rules adopted to prosecuting attorney. Mr. Sand seconded the motion. The motion carried.

Judge Erickstad was called from the room, and Judge Ilvedson assumed the chair.

Mr. Persinger read his draft or Rule 22 as follows:

Rule 22. Time of Motion to Transfer.

A motion to transfer under these rules may be made at or before arraignment or at such other time as the court or these rules may prescribe.

Mr. Persinger commented that he recommended adoption of the federal rule without change, and that, generally, he supposed the time for such motion would be governed by the time provisions of Rule 12, Pleadings and Motions Before Trial; Defenses and Objections. However, he said, it has been held that the proper time for passing on a motion to transfer on the ground that the defendant cannot obtain a fair and impartial jury is upon the voir dire examination, citing Blumenfield v. U.S., 284 F.2d 46 (8th Cir. 1960). He said that the statutory counterpart of the rule is § 29-15-02, which he has recommended for repeal in connection with Rule 21.

Following discussion, Mr. Persinger moved the adoption of Rule 22 as read except that the word arraignment should be deleted and the words entry of a plea inserted in lieu thereof. Mr. Sand seconded the motion. The motion carried.

Rule 22 as adopted read:

Rule 22. Time of Motion to Transfer.

A motion to transfer under these rules may be made at or before entry of a plea or at such other time as the court or these rules may prescribe.

Mr. Vogel read his draft of Rule 24(a) as follows:

Rule 24. Trial Jurors.

(a) The court shall permit the defendant or his attorney and the prosecuting attorney to conduct the examination of prospective jurors.

Mr. Vogel commented that his draft continues the present North Dakota practice of allowing examination of jurors by the attorneys rather than the court, which is different from the federal rule. He said that most of the lawyers he knows prefer the state rule. He noted that Rule 14(a) would replace § 29-17-28, Jurors examined by either party.

-12-

Minutes of the meeting of Sept. 26-27, 1968 - p. 12

Mr. Vogel moved that Rule 24(a) be adopted as read. Mr. Sand seconded the motion. The motion carried. [For text see p. 11 of these minutes.)

Mr. Vogel read his draft of Rule 24(b) as follows:

Rule 24. Trial Jurors.

(b) Peremptory Challenges. If the offense charged is murder in the first degree, each side is entitled to fifteen (15) peremptory challenges. If the offense charged is a felony other than murder in the first degree, each side is entitled to ten (10)peremptory challenges. If the offense charged is other than a felony, each side is entitled to six (6) peremptory challenges. If there is more than one defendant, the court may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly.

Mr. Vogel commented that he had adapted subdivision (b) of the federal rule to allow the number of challenges presently allowed by our state statute, § 29-17-31, Challenges to prosecution and defendant, for which the rule would substitute. He said that the sentence of the federal rule allowing additional peremptory challenges when there is more than one defendant is an innovation in North Dakota practice and his opinion is that it is a good one.

Mr. Vogel moved that Rule 24(b) be adopted as read. Mr. Shaft seconded the motion.

Judge Erickstad returned to the chair, and Judge Ilvedson was called from the room.

The question being on the motion to adopt Rule 24(b), the motion carried, [For text see above.]

Mr. Vogel read his draft of Rule 24(c) as follows:

Rule 24. Trial Jurors.

(c) Alternate Jurors. The court may direct that not more than four (4) jurors in addition to the regular jury be called and impaneled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, shall have the same functions, powers, facilities, and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict. Each side is entitled to one peremptory challenge in addition to those otherwise allowed by law if one or two alternate jurors are to be impaneled, and two peremptory challenges if three or four alternate jurors are to be impaneled. The additional peremptory challenges may be used against an alternate juror only, and the other peremptory challenges allowed by these rules may not be used against an alternate juror.

Mr. Vogel noted that subdivision (c) is taken from the federal rule and would replace § 29-17-47, Alternate jurors, selection--Procedure, and § 29-17-48, Alternate jurors, oath--Duties. He said he thought the

-13-

Minutes of the meeting of Sept. 26-27, 1968 - p. 13

federal rule is less wordy and that it would not change our present practice except in one respect, and that is, that § 29-17-48 allows an alternate juror to participate in the deliberations of the jury, whereas the federal rule provides for the discharge of the alternate juror when the jury retires to consider its verdict. He said that while the state procedure would seem more practical in that it would avoid a mistrial in instances in which a juror became disqualified by illness or otherwise during the deliberations of the jury, Barron § Holtzoff § 2136 (1966 Supp.) comments that the United States Supreme Court indicated to the Advisory Committee on the criminal rules doubts as to the desirability and constitutionality of a procedure like North Dakota's, and goes on to state that "these doubts are as forceful now as they were a quarter of a century ago." In view of the comment of Barron a Holtzoff, he has recommended the adoption of the federal provision. He stated that the 1966 amendments to the federal rules make provision for allowing up to six alternate jurors, but that he felt this was unnecessary under North Dakota practice.

Mr. Vogel moved that Rule 24(c) be adopted as read. Mr. Sand seconded the motion. The motion carried. [For text see p. 12 of these minutes.]

Mr. Shaft read his draft of Rule 25(a) and (b) as follows:

Rule 25. Judge; Disability

(a) During Trial. If by reason of termination of office, death, sickness or other disability the judge before whom a jury trial has commenced is unable to proceed with the trial, any other judge regularly sitting in or assigned to the court, upon certifying that he has familiarized himself with the record of the trial, may proceed with and finish the trial.

(b) After Verdict or Finding of Guilt. If by reason of termination of office, absence, death, sickness, or other disability, the judge before whom the defendant has been tried is unable to perform the duties to be performed by the court after a verdict or finding of guilt, any other judge regularly sitting in or assigned to the court may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial, or for any other reason, he may in his discretion grant a new trial.

Mr. Shaft moved the adoption of Rule 25(a) and (b). Mr. Persinger seconded the motion.

Mr. Shaft withdrew his motion and Mr. Persinger withdrew his second, and Mr. Shaft moved that Rule 25(a) and (b) be adopted with the following amendments: in (a), after the words with the trial, insert the words a successor in office or; and in (b), after the words a verdict or finding of guilt, insert the words a successor in office or. Mr. Persinger seconded the motion. The motion carried.

Rule 25 as adopted reads:

Rule 25. Judge; Disability.

(a) During trial. If by reason of termination of office, death, sickness, or other disability the judge before whom a jury trial has commenced is unable to proceed with the trial,

-14-

Minutes of the meeting of Sept. 26-27, 1968 - p. 14

a successor in office or any other judge regularly sitting in or assigned to the court, upon certifying that he has familiarized himself with the record of the trial, may proceed with and finish the trial.

(b) After Verdict or Finding of Guilt. If by reason of termination of office, absence, death, sickness, or other disability, the judge before whom the defendant has been tried is unable to perform the duties to be performed by the court after a verdict or finding of guilty, a successor in office or any other judge regularly sitting in or assigned to the court may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial, or for any other reason, he may in his discretion grant a new trial.

The secretary was instructed to make note in the minutes of § 27-07-23, Change of [county] judge--When permitted--How obtained--Authority and duties of other judge.

Mr. Glaser read the study material on Rule 26.1, Determination of Foreign Law, which has not been assigned. Mr. Schneider read Federal Rule of Civil Procedure 44.1, which is nearly the same as Criminal Rule 26.1. The chairman appointed Mr. Persinger to draft a North Dakota Rule 26.1. Mr. Persinger noted that the history and purpose of Civil Rule 44.1 is set out in 2B Barron § Holtzoff (1967 pocket part, p. 95). Mr. Glaser noted that an affected statute is § 31-09-01, Statutes, codes, decisions, when admissible as evidence of laws of foreign jurisdictions.

Judge Morris read Federal Rule 29, Motion for Judgment of Acquittal. Mr. Glaser noted that the governing statute is § 29-21-37, Court may advise jury to acquit. A discussion followed, the general feeling apparently being that the federal rule is not good.

Judge Morris stated that he thinks the committee should retain the present statute; Mr. Sand said he agrees. Mr. Glaser read § 29-21-37.

Judge Morris moved that a draft be prepared, patterned after our present statutes with some modifications. Mr. Sand seconded the motion.

Mr. Glaser said he thinks the rule should be the same in effect as the civil rule. He read § 29-28-07, From what the state may appeal.

The question being on Judge Morris' motion, the motion carried, Mr. Glaser voting nay.

Judge Ilvedson returned to the meeting.

The meeting recessed at 5:15 p.m. and reconvened at 9:10 a.m., Friday, Sept. 27, 1968, with the same persons present as at the time of recess.

Judge Ilvedson discussed proposed Rule 30, Instructions. He stated that his draft was exactly like the present federal rule except for the capitalized portion at the end. He said that superseded sections are 29-21-30 through -33. He said that he believed that North Dakota lawyers did not want trial judges to comment on evidence; that he was in favor of allowing the jury to take the instructions with them into the jury room (see § 29-22-04); and that he was recommending deletion of any reference to oral instructions, although the committee might think differently. He said that Delaware provides for all instructions to be oral except in capital cases, but that Alaska does not provide for oral

-15-

Minutes of the meeting of Sept. 26-27, 1968 - p. 15

instructions; and that Alaska spells out certain instructions which are mandatory, but that he does not see the need to make all these a part of our rule. He said that Rule 52, Harmless Error and Plain Error, although it has not yet been considered by the committee, is relevant in the present consideration of Rule 30, inasmuch as Rule 52 provides a remedy for a plain miscarriage of justice even when exception to the instructions has not been made. He noted that pertinent citations a N.D.C.C. § 29-21-05; State v. Bowe, 57 N.D. 89, 220 N.W. 843; U.S.C.A. Rule 52, notes 82 to 91; State v. Alfstad, 98 N.W.2d 371 (N.D. 1959).

Judge Ilvedson moved that his draft of Rule 30 be adopted, with the following amendment: In the last sentence after the word case and before the period, delete the following words: and whether or not requested to do so, shall always instruct the jury that a defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted. Mr. Glaser seconded the motion. The motion carried.

Rule 30 as adopted reads:

Rule 30. Instructions.

At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. At the same time copies of such requests shall be furnished to adverse parties. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury. The instructions shall be reduced to writing and read to the jury and shall be taken by the jury to the jury room. The court shall instruct only as to the law of the case.

Mr. Shaft read his draft of Rule 32, Sentence and Judgment. A discussion of Rule 32(e), Probation, followed. Judge Ilvedson read the statutes relating to probation, ch. 12-53. Mr. Sand commented that S 12-55-30 requires the state's attorney to furnish a written report which goes to the parole board. Judge Erickstad read from John v. State, 160 N.W.2d 37 (N.D. 1968), which has to do with a probation revocation hearing. Mr. Vogel read from Barron § Holtzoff § 2265 (1967 pocket part, note 27.3), citing U. S. v. Maroney, 355 F.2d 302 (3d Cir. 1966). Judge Ilvedson read § 29-26-18, Evidence in aggravation or mitigation of punishment.

Judge Ilvedson moved that the chairman be instructed to express to Mrs. Erickstad the appreciation of the committee for the delicious refreshments which she has been furnishing the committee. Mr. Persinger seconded the motion. The motion carried unanimously.

It was decided to defer work on Rule 32 until Mr. Shaft has had an opportunity to work on it further.

-16-

Minutes of the meeting of Sept. 26-27, 1968 - p. 16

Judge Ilvedson read his draft of Rule 33 as follows:

Rule 33. New Trial.

The court on motion of a defendant may grant a new trial to him if required in the interest of justice. The motion for a new trial shall be in writing and shall point out with particularity the defects and errors complained of. A motion based upon newly discovered evidence or jury misconduct shall be supported by affidavits. WHEN AFFIDAVITS ARE PRESENTED TO THE COURT IN SUPPORT OF A MOTION FOR NEW TRIAL, THE COURT, WHEN THE AFFIANTS ARE RESIDENTS OF THIS STATE, MAY COMPEL THEIR PERSONAL ATTENDANCE BEFORE IT, AND THEY MAY BE EXAMINED AND CROSS-EXAMINED UNDER OATH, TOUCHING THE MATTERS SET FORTH IN THEIR AFFIDAVITS. A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. A motion for a new trial on any other grounds shall be made within 7 days after verdict or finding of guilt or within such further time as the court may fix during the 7-day period.

Judge Ilvedson explained that the underlined sentences are taken from the Colorado rule but do not appear in the federal or Alaska rules, and that the capitalized sentence is taken from N.D.C.C. § 29-24-03. He said that our affected statutes are contained in ch. 29-24; that the federal and Alaska rules are practically identical; and that Colorado changed the federal rule (1) by requiring that motions be in writing and that the movant point out with particularity the defects and errors complained of, (2) by requiring a motion based on newly discovered evidence or jury misconduct to be supported by affidavits, (3) by permitting the motion to be made as soon after entry of the judgment as the facts supporting it became known to the defendant, whereas the federal government and Alaska require that it be made within two years after final judgment, and (4) by deleting "If trial was by the court with a jury the court may vacate the judgment entered, take additional testimony, and direct the entry of a new judgment." He said he thinks there is something to be said for Colorado's insistence that the motion be in writing, and that he has included that provision in the draft. He said that he had added our § 29-24-03 to the rule for the protection of the public and of the court in upholding justifiable verdicts. N.D.C.C. 29-24 will be superseded by Rule 33.

Discussion followed, with particular reference to the time for making motion for new trial on ground of newly discovered evidence and to the causes for granting new trial, which are presently set forth in § 29-24-02. Judge Erickstad pointed out that this rule would supersede § 29-24-06, which for the most part now limits the time within which a motion for new trial may be made to 90 days from the sentence. Section 29-24-06 was repealed in 1951 and reenacted in 1959 to prevent motions being made as new evidence was fabricated.

Mr. Vogel moved that that part of Judge Ilvedson's draft of Rule 33 through the capitalized part be adopted. Mr. Shaft seconded the motion.

Further discussion with relation to the causes for granting new trial followed. The chairman asked each member of the committee to express his views. Judge Ilvedson said that he believed the rule should include the grounds set forth in the present law and also include "in the interests of justice." Mr. Glaser said he favors Judge Ilvedson's view. He

-17-

Minutes of the meeting of Sept. 26-27, 1968 - p. 17

also suggested that the rule might say "or any ground provided by law." Mr. Sand and Mr. Shaft said that they were in favor of "in the interests of justice." Judge Morris said he does not like the phrase "in the interests of justice," that he likes the rule to be specific. He said that in grounds for new trial in a criminal action "the interests of justice" could take in a tremendous scope and result in great difficulties both for trial judges and for the Supreme Court, and that he would leave the statute as it is or that it might possibly have some minor modification, although he does not think that is necessary. Mr. Persinger said that he was in favor of "in the interests of justice," noting that if a person were to make a motion for new trial, he would be entitled to do it whether or not the ground is listed in the statute if the ground is constitutional. Judge Morris agreed. Mr. Vogel said that he was in favor of "in the interests of justice."

The question being on Mr. Vogel's motion, the motion carried, Mr. Sand, Mr. Shaft, Mr. Persinger, and Mr. Vogel voting aye, and Judge Morris, Judge Ilvedson, and Mr. Glaser voting nay.

Judge Ilvedson moved that the remainder of his draft of Rule 33 be adopted. Mr. Glaser seconded the motion.

Judge Ilvedson read the notes of the Advisory Committee relating to Rule 29, 18 U.S.C.A. (pocket parts). Mr. Glaser read from the draft of criminal rules prepared by the National Conference of Commissioners on Uniform State Laws (1952), Rule 41, Motions after Verdict (a) New Trial.

Discussion followed as to the time for making motion.

The question being on Judge Ilvedson's motion, the motion carried. [For text see p. 16 of these minutes.]

Judge Ilvedson read from the notes of the Advisory Committee relating to Rule 33, 18 U.S.C.A. (pocket parts).

Mr. Shaft read from 4 Barron § Holtzoff § 2281 (pocket parts), citing Mullin v. U.S., 356 F.2d 368 (D.C.Cir. 1966).

Judge Morris read Federal Rule 34, Arrest of Judgment. He said he feels that most of our statute, § 29-25-02, should be incorporated into the rule, and recommends that the rule include ground 1 (that the court has no jurisdiction of the offense charged in the information or indictment); ground 5 (that the facts stated in the information or indictment do not constitute a public offense); and 6 (that the information or indictment contains matter which, if true, would constitute a legal justification of or excuse for the offense charged or other legal bar to the prosecution.

Discussion followed. Judge Erickstad mentioned the case of State v. Gill, 154 N.W.2d 791 (N.D. 1967).

Judge Morris moved that Federal Rule 34 be adopted as North Dakota Rule 34, with the addition of ground 6 from § 29-25-02. Mr. Sand seconded the motion.

The committee recessed at 12:02 p.m. and reconvened at 1:20 p.m., with the same persons present as at the time of recess.

Judge Ilvedson reported that C.J.S. does not mention ground 6 of § 29-25-02.

Judge Morris reported that he had done some research during the lunch hour, that he could find nothing about ground 6 in the laws of states, and that although at first he had thought it was a good idea to include it in the rule, he has now decided to recede from that position.

-18-

Minutes of the meeting of Sept. 26-27, 1968 - p. 18

Judge Morris moved to amend his motion by deleting the reference to ground 6 of S 29-25-02 and by amending Federal Rule 34 by inserting a comma and deleting the word or after the word indictment, and by inserting a comma and the words or complaintafter the word information. Mr. Sand seconded the motion.

Mr. John Graham entered the meeting.

The question being on Judge Morris's motion, the motion carried,

Rule 34 as adopted reads:

Rule 34. Arrest of Judgment.

The court on motion of a defendant shall arrest judgment if the indictment, information, or complaint does not charge an offense or if the court was without jurisdiction of the offense charged. The motion in arrest of judgment shall be made within 7 days after verdict or finding of guilty, or after plea of guilty or nolo contendere, or within such further time as the court may fix during the 7-day period.

Mr. Persinger read his draft of Rule 35 as follows:

Rule 35. Correction or Reduction of Sentence.

The sentencing court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. The sentencing court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by that court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court of the United States denying review of, or having the effect of upholding, a judgment of conviction. The court may also reduce a sentence upon revocation of probation as provided by law.

Mr. Persinger commented that he had drafted the rule in language nearly identical to that of the federal rule. He said he found no conflict in the proposed rule with any of the provisions of chs. 12-53 and 29-26, and that he did not propose the rescission of any of the current statutory provisions because he believed there was no duplication.

A discussion followed. It was noted that Waltman v. Austin, 142 N.W.2d 517 (N.D. 1966), has to do with an illegal sentence, but that the rule as proposed deals with all sentences, legal and illegal.

Mr. Persinger moved the adoption of Rule 35 as read. Judge Ilvedson seconded the motion. The motion carried, Mr. Sand voting nay, stating that he did so because he would like to have seen the rule provide that notice be given to the prosecution before reduction of sentence. [For text see above.]

Mr. Persinger read his draft of Rule 36 as follows:

Rule 36. Clerical Mistakes.

Clerical mistakes in judgments, orders, or other parts of the record, and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.

-19-

Minutes of the meeting of Sept. 26-27, 1968 - p. 19

Mr. Persinger commented that his draft is identical to the federal rule. He said he could find no comparable provision in the code and therefore was making no recommendation for rescission or change in any statutory provision.

Mr. Persinger moved the adoption of Rule 36 as read. Mr. Vogel seconded the motion. The motion carried. [For text see p. 18 of the minutes.]

Mr. Sand read his draft of Rule 37, Taking Appeals, and moved its adoption. Mr. Vogel seconded the motion.

There followed a discussion, with particular reference to phraseology, to applicability to municipal courts, to appeals from deferred imposition of sentence (the appealability of which was construed in State v. Carroll, 123 N.W.2d 659 (N.D. 1963) and subsequent amendment of § 29-28-06), and to oral appeals.

At the chairman's suggestion, Mr. Sand withdrew his motion and Mr. Vogel, his second; and Mr. Sand agreed to revise his draft and submit it again at the next meeting.

Mr. Sand noted that if Rule 1 is left as it is, it will mean allowing oral appeals.

Mr. Glaser read Rule 1. He said he thinks the rules can be used in municipal courts if there is no statute that applies.

The chairman made the following assignments: Rule 43, Presence of the Defendant, and Rule 44, Right to and Assignment of Counsel, Judge Ilvedson; Rule 45, Time, Mr. Vogel; Rule 46, Release on Bail, Mr. Per singer; Rule 47, Motions, Judge Morris; Rule 48, Dismissal, Mr. Shaft Rule 49, Service and Filing of Papers, Mr. Sand; Rule 50, Calendars, Rule 51, Exceptions Unnecessary, Mr. Graham; Rule 52, Harmless Error and Plain Error, Mr. Glaser; Rule 53, Regulation of Conduct in the Court Room, Judge Muggli; Rule 54, Application and Exception, Judge Smith; Rule 55, Records, and Rule 56, Courts and Clerks, Judge Murray

The next meeting was set for Wednesday, December 11, and Thursday, December 12, 1968, commencing at 9:00 a.m.

The meeting adjourned at 3:07 p.m.

Respectfully submitted,
Rebecca Quanrud, Secretary

Joint Procedure Committee Meeting

North Dakota Supreme Court

District Courts

Municipal Courts

About Us

Contact Us

Jobs With Us

Privacy Statement

Security Policy

Disclaimer