Joint Procedure Committee Meeting
Scheduled on Thursday, February 17, 1983 @ 10:00 AM
MINUTES OF MEETING
Joint Procedure Committee
February 17-18, 1983
CALL TO ORDER
The meeting was called to order at 10:00 a.m., February 17, 1983, by Justice Paul M. Sand, Chairman.
ATTENDANCE
Present
Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Hon. Lawrence A. Leclerc
Hon. William S. Murray
Hon. James H. O'Keefe
Mr. Leonard H. Bucklin
Mr. William A. Hill
Mr. Herbert L. Meschke
Absent
Hon. Robert C. Heinley
Hon. Frank J. Kosanda
Hon. Kirk Smith
Hon. Robert Vogel
Mr. Ward M. Kirby
Mr. Larry Kraft
Mr. James L. Lamb
Mr. LeRoy A. Loder
Mr. David L. Peterson
APPROVAL OF MINUTES
Judge Leclerc MOVED the minutes be approved as submitted. Judge Murray seconded the motion. Motion CARRIED.
RULE 12, NDRAppP
Judge Burdick MOVED to amend the proposed amendment to Rule 12, NDRAppP, in line 7, change "persons" to "parties"; in line 4 change "shall be" to "is." Judge Glaser seconded the motion. Motion CARRIED.
Judge Burdick MOVED to adopt the amendments to Rule 12, NDRAppP. Judge Murray seconded the motion. Motion CARRIED.
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DOCKETING THE APPEAL
(a) Time for Docketing the Appeal. The appellant shall deposit the docket fee with the clerk of the trial court at the time the notice of appeal is filed. No docket fee is required in criminal cases. Upon receipt of the docket fee, the clerk of the supreme court shall thereupon enter the appeal upon the docket. If two or more parties file separate notices of appeal, the first to file is the appellant for the purposes of depositing the docket fee and entry of the appeal upon the docket. If an appellant is authorized to prosecute the appeal without prepayment of fees or has been declared indigent by order of any court of this state for the purpose of any action relating to the appeal, the clerk shall enter the appeal upon the docket at the request of a party or at the time of filing the record. The supreme court upon motion for cause shown may enlarge the time for docketing the appeal or permit the appeal to be docketed under the title given to the action in the trial court, with the appellant identified as such, but if the title does not contain the name of the appellant, his name, identified as appellant, must be added to the title.
(b) Dismissal for Failure of Appellant to Docket Appeal. If the appellant fails to pay any docket fee if a docket fee is required, any appellee may file a motion in the supreme court to dismiss the appeal. The motion must be supported by a certificate of the clerk of the trial court showing the date and substance of the judgment or order from which the appeal was taken, the date on which the notice of appeal was filed, and by proof of service. The appellant may respond within 14 days after the service. The clerk of the supreme court shall docket the appeal for the purpose of permitting the court to entertain the motion without requiring payment of the docket fee, but the appellant is not permitted to respond without payment of the fee unless he is otherwise exempt therefrom.
Judge Burdick MOVED that Rule 12, North Dakota Rules of Appellate Procedure, as amended and adopted by the Committee, be submitted to the Supreme Court for promulgation and adoption. Judge Murray seconded the motion. Motion CARRIED.
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RULE 12, NDRAppP - Explanatory Note
Judge Burdick MOVED to amend the proposed Explanatory Note to Rule 12, NDRAppP, in line 8 change "persons" to "parties." Judge Murray seconded the motion. Motion CARRIED.
Judge Burdick MOVED to adopt the Explanatory Note to Rule 12, NDRAppP, as amended. Judge Murray seconded the motion. Motion CARRIED.
EXPLANATORY NOTE
Under Rule 12(a), as amended, the statutory docket fee in civil cases must be deposited by the appellant in the trial court with the notice of appeal. See § 27-03-05, N.D.C.C. The fourth sentence of subdivision (a) was inserted by an amendment adopted in 1983, effective _________________, 1983. The fee need only be paid once and is to be paid by the first to file a notice of appeal if two or more parties file separate notices of appeal. To eliminate administrative problems for the clerk of the trial court, a check or money order in the amount of the docket fee should be made payable to the Clerk of the Supreme Court.
It should be noted that Rules 7 and 10(b) require that the bond for costs or equivalent security in civil cases, proof of service of the order for transcript, and a copy of the stipulation of excluded transcript portions, if any, also be filed with the notice of appeal.
Although payment of the docket fee is not required to invoke the jurisdiction of the supreme court and nonpayment does not affect the validity of the appeal [see Rule 3(a)], subdivision (b) asserts that the appeal may be dismissed by the Supreme Court if the requirements of this rule are not followed.
The former subdivision (b), relating to filing the record, is now found in Rule 11(g). Parts of former subdivision (c) are now found in Rule 11(h).
Judge Burdick MOVED that the Explanatory Note to Rule 12, North Dakota Rules of Appellate Procedure, as amended and adopted by the Committee, be submitted to the Supreme Court for promulgation and adoption. Judge Murray seconded the motion. Motion CARRIED.
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RULES AND EXPLANATORY NOTES PREVIOUSLY AMENDED AND ADOPTED
Judge Leclerc MOVED that all Rules and Explanatory Notes previously amended and adopted from and after the October 15-16, 1981, meeting of the Joint Procedure Committee, with style changes by Judge Burdick, be submitted to the Supreme Court for promulgation and adoption. Judge Murray seconded the motion. Motion CARRIED.
PROFESSIONAL COMPETENCY
Judge Burdick MOVED that the matter of controlling the appearance of an incompetent lawyer in court be submitted to an appropriate committee of the State Bar Association, such as the Judiciary Standards Committee of the Supreme Court. Mr. Bucklin seconded the motion. Motion CARRIED.
RULE 53, NDRCivP, Explanatory Note
Judge Burdick MOVED that the proposed amendment to the Explanatory Note to Rule 53, NDRCivP, be amended in line 14 by deleting "for ascertaining" to read "of having a master or masters ascertain"; and deleting "determining" to read "determine"; and that the first sentence of the Explanatory Note be amended to read "Rule 53 is derived from Rule 53, FRCivP, except for several modifications of subdivision (a) and the addition of a new subdivision (d)." Judge Murray seconded the motion. Motion CARRIED.
EXPLANATORY NOTE
Rule 53 is derived from Rule 53, FRCivP, except for several modifications of subdivision (a) and the addition of a new subdivision (d). Allowance is made for payment of the master out of the county treasury in certain cases. Paragraphs (2), (3), and (4) were taken from Sections 28-1704, 28-1705, and 28-1707, NDRC 1943, and provide for objections to the appointment and swearing of the master. The federal provision for appointment of standing masters has been deleted and replaced by the first sentence allowing the court to appoint a special master.
Subdivision (d) was adopted in 1983, effective _______________, 1983, to provide an additional option of having a master or masters ascertain just compensation or determine the damages in eminent domain actions in which the parties have waived the right to a jury.
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Judge Murray MOVED that the Explanatory Note to Rule 53, North Dakota Rules of Civil Procedure, as amended and adopted by the Committee, be submitted to the Supreme Court for promulgation and adoption. Mr. Meschke seconded the motion. Motion CARRIED.
RULE 16, NDRCrimP - Explanatory Note
Judge Leclerc MOVED to adopt the proposed amendments to the Explanatory Note to Rule 16, North Dakota Rules of Criminal Procedure, with style changes by Judge Burdick. Mr. Hill seconded the motion. Motion CARRIED.
EXPLANATORY NOTE
Rule 16 is an adaptation of Rule 16, F.R.Crim.P., and incorporates, upon amendment in 1983, effective _______________,1983, provisions requiring the prosecution to produce, upon the defendant's written request, the names and addresses of prosecution witnesses and any statements made by them; any records of prior felony convictions of those witnesses; statements of codefendants; and statements of other persons.
Prior to the adoption of this Rule, discovery proceeded on an informal basis. The only requirement placed upon the prosecutor was the constitutional imperative that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to the guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 104, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215 (1963).
Amendments adopted in 1983, effective ______________, 1983, (1) eliminate the necessity for discovery motions in almost all instances by providing that discovery proceed by written requests, rather than motions unless there is a dispute as to whether a matter is discoverable or there is a request for a protective or modifying order under subdivision (d); (2) add a provision that upon a defendant's written request, the prosecution shall furnish him with a copy of his prior criminal record, if any; (3) add as a new sanction for failure to comply with discovery requests that the requesting party may be relieved from making a disclosure required by this Rule; and (4) provide that upon defendant's written request the prosecution shall furnish a written list of the names and addresses of prosecution witnesses, and any statements made by them,
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together with any records of prior felony convictions of them within the knowledge of the prosecuting attorney, and that upon written request the defendant must be permitted to inspect and copy or photograph relevant statements of codefendants or other persons. All of these matters are now discoverable at any point in the proceedings, rather than only after a witness has testified, as was the rule under former subdivision (i).
While the rule, as amended, provides greater discovery, it is intended to prescribe only the minimum amount of discovery to which the parties are entitled. It is not intended to limit the judge's discretion to order broader discovery in appropriate cases. Nor is it intended to prevent the voluntary disclosure of other evidence or material by the parties at any time.
Material discoverable by the defense under the Rule is described in subdivisions (a) and (f). The prosecuting attorney under subdivision (a)(1)(A), upon written request of the defendant, is required to permit the defendant to inspect and copy or photograph three different types of evidentiary material: (1) relevant written or recorded statements made by the defendant, or copies thereof; (2) the substance of any oral statement made by the defendant in response to interrogation which the prosecutor intends to offer; and (3) recorded testimony of the defendant before a grand jury concerning the offense charged. Subdivision (a)(1)(A) permits a defendant organization to discover relevant grand jury testimony of a former officer or employee, not in every instance, but in those situations set forth. In a situation involving a corporate defendant, statements made by present and former officers and employees relating to their employment have been held discoverable as statements of the defendant. United States v. Hughes, 413 F.2d 1244 (5th Cir. 1969). Considerations of fairness require that a defendant corporation or other legal entity be entitled to the grand jury testimony of a former officer or employee in these situations. Upon request, the defendant is entitled to the specified items "within the possession, custody, or control of the prosecution, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney."
A written request, substantially in the language of the rule, is sufficient to place upon the prosecuting attorney the burden of producing the relevant
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materials of which he has knowledge or could in the exercise of due diligence obtain knowledge.
Under subdivision (a)(1)(B), added by amendment adopted in 1983, effective __________________ 1983, upon written request of the defendant, the prosecution shall furnish to the defendant a copy of his prior criminal record, if any. This provision was drawn from subdivision (a)(1)(B), FRCrimP, which became effective in 1975.
Under subdivision (a)(1)(C), discoverable material includes "books, papers, documents, photographs, tangible objects, buildings, or places." As stated in the Advisory Committee Note to the 1974 amendment of Rule 16, FRCrimP:
". . . The old rule requires a 'showing of materiality to the preparation of his defense and that the request is reasonable.' The new rule requires disclosure if any one of three situations exists: (a) the defendant shows that disclosure of the document or tangible object is material to the defense; (b) the government intends to use the document or tangible object in its presentation of its case in chief, or (c) the document or tangible object was obtained from or belongs to the defendant."
Subdivision (a)(1)(D) makes discoverable any results or reports of physical or mental examinations and of scientific tests or experiments (including fingerprint and handwriting comparisons) or copies thereof, and which are material to the preparation of the defense or are intended for use by the prosecutor as evidence in chief at the trial. The 1983 amendment conforms to amendments to the federal rule which became effective in 1975.
Paragraph (2) of subdivision (a) contains two important limitations to the otherwise broad discovery provisions of subdivision (a). First, it is expressly provided that the discovery or inspection of statements made by prosecution witnesses or prospective prosecution witnesses to agents of the prosecution is not authorized except as provided under subdivision (f) of this Rule. Second, the Rule does not authorize discovery or inspection of reports, memoranda, or other internal prosecution documents in connection with the investigation or prosecution of the case (the "workproduct" of the prosecution).
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Subdivision (b) provides for reciprocal discovery by the prosecution. This subdivision replaces old subdivision (d). The constitutional question relative to violations of the privilege against self-incrimination is generally overcome by the language of Justice Traynor in Jones v. Superior Court, 58 Cal.2d 56, 372 P.2d 919, 22 Cal.Rptr. 879, 96 A.L.R. 1213, rehearing denied July 1962, in which the judge said that such discovery does not violate the privilege against self-incrimination since "it simply requires the petitioner to disclose information that he will shortly reveal anyway." By amendment effective January 1, 1980, there is no requirement that the prosecution show materiality and reasonableness. The exception or limitation of materials subject to discovery relates to that which the defendant intends to produce in chief at trial, or, in the case of physical or mental examinations and of scientific tests and experiments which were prepared by a witness whom the defendant intends to call at the trial when the results or reports relate to his testimony (by amendment adopted in 1983, effective ______________________, 1983, to conform to amendments made to the federal rule). This limitation is the central argument in support of the constitutionality of these provisions.
Another important limitation of discovery under subdivision (b) is that the privilege is conditional upon the defendant having requested and received discovery under subdivision (a)(1)(C) or (a)(1)(D) of this Rule. Thus, if the defendant seeks no discovery the prosecution can have no discovery (see Wright, Federal Practice and Procedure: Criminal, § 255, p. 521). Paragraph (2) states what defense information is not subject to disclosure to the prosecution.
Subdivision (c) is a restatement of part of old Rule 16(h) and imposes a continuing obligation on a party. The duty provided is to notify the other party, his attorney, or the court of the existence of additional evidence or material. A request or a motion may then be made pursuant to the notification by the party receiving such notification for additional discovery and where the existence of the material is disclosed shortly before or during the trial for any necessary continuance.
Subdivision (d)(1), which is the same as former subdivision (f) with the addition of "and Modifying", permits the court upon a sufficient showing to order that discovery or inspection be denied, restricted, or
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deferred, or make such other order as is appropriate. In determining whether to make the protective order, the court will take into consideration such matters as the safety of the witnesses and others, a particular danger of perjury or witness intimidation, protection of information vital to the national security, and the protection of business enterprises from economic reprisals. The burden is upon the moving party to make sufficient showing for the denial, restriction, or deferment of discovery.
Subdivision (d)(2) is a restatement of former subdivision (e) and part of former subdivision (h). Subdivision (h). It contains sanctions for failure to comply with Rule 16 or with an order made pursuant to it. Four specific alternatives are provided if it is brought to the attention of the court that a party has failed to comply with Rule 16 or with an order issued pursuant to the Rule. The court may (1) order the delinquent party to permit the discovery or inspection of materials not previously disclosed; (2) grant a continuance; (3) prohibit the party from introducing evidentiary material not disclosed; or (4) relieve the requesting party from making a disclosure required by this Rule. The fourth alternative, drawn from Rules 421 and 422, Uniform Rules of Criminal Procedure (1974), was added by an amendment adopted in 1983, effective _________________, 1983. In addition to these alternatives, the court has wide discretion to enter any other order "it deems just under the circumstances." The discretionary provision permits the court to consider the reasons why disclosure was not made, the extent of the prejudice, if any, to the opposing party, the feasibility of rectifying that prejudice by continuance, and any other relevant circumstances. The last sentence is a restatement of former subdivision (e) and simply provides that the court may specify the time, place, and manner of making the discovery and inspection, and may prescribe such terms and conditions as are just.
Former subdivision (g) dealing with the time for making discovery motions has been deleted. Rule 12(c) provides the judge with authority to set the time for making pretrial motions, including requests for discovery. Rule 12(f) prescribes the consequences of a failure to make a pretrial motion at the time fixed by the court.
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Subdivision (e), providing that discovery of alibi witnesses is governed by Rule 12.1, was adopted in 1983, effective ______________, 1983, to conform to amendments to the federal rule.
Subdivision (f), adopted in 1983, effective ___________________, 1983, substantially alters former subdivision (i), most of which has been deleted and replaced by paragraphs (1), (2) and (3). Former subdivision (i) of this Rule was adapted from Title 18, U.S. Code, Section 3500, also known as the Jencks Act, which is based on the opinion handed down by the U.S. Supreme Court in the case of Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957). This bill was designed to preserve the rights of a defendant under due process of law and to make certain that the decision in the Jencks case is not misinterpreted by the courts, lawyers, or defendants as exposing government files in a manner which the Supreme Court, in Gordon v. United States, 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447 (1953), called "any broad or blind fishing expedition among documents possessed by the government on the chance that something impeaching might turn up." (1957 U.S. CCNA 1862.)
Subdivision (f) broadens the scope of discovery by the defendant by making more things discoverable and statements of more people discoverable than was the case under old Rule 16(i).
Paragraph (1) of subdivision (f) requires the prosecution, upon defendant's written request, to furnish the defendant with a written list of the names and addresses of all prosecution witnesses, and any statements made by them, together with any records of prior felony convictions of them. It also provides that when a request for such discovery is made, the prosecuting attorney must be allowed to perpetuate the testimony of those witnesses. The provisions were drawn from Rules 421 and 422, Uniform Rules of Criminal Procedure (1974); Standard 11-2.1, American Bar Association Standards for Criminal Justice (2d Ed. 1980); and subdivision (a)(1)(E) of the proposed amendment of Rule 16, FRCrimP, transmitted to Congress by the U.S. Supreme Court on April 22, 1974.
Paragraph (2) of subdivision (f) requires the prosecution to permit the defendant to inspect and copy or photograph any relevant written or recorded confession, admission, or statement of a codefendant. It was drawn from Rules 421 and 422, Uniform Rules of Criminal Procedure (1974) and Standard 11-2.1, American Bar Association Standards For Criminal Justice (2d Ed. 1980).
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Paragraph (3) of subdivision (f) provides that "Upon written request of the defendant, the prosecution shall permit the defendant to inspect and copy or photograph any relevant written or recorded statement of any person, or copies thereof, within the possession, custody, or control of the prosecution, the existence of which is known to the prosecuting attorney, and which is not available to the defendant under subdivision (a) or paragraph (1) or (2) of this subdivision." Rule 421, Uniform Rules of Criminal Procedure (1974) provides that the prosecuting attorney shall allow access to the identity of persons having information relating to the case. The prosecution may possess statements of persons who are neither prosecution witnesses nor codefendants which may, nevertheless, be helpful to the defendant in the preparation of his defense and paragraph (3) requires the prosecution to disclose them as well.
Paragraph (4) of subdivision (f) retains the definition of "statement" contained in old Rule 16 (i)(5), with the addition of "codefendant or other person."
Subdivision (f) does not require, as did former subdivision (i), that the person whose statement is produced must first have testified on direct examination. It is intended that the listed statements be discoverable at any point in the proceedings.
It should be pointed out, however, that Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967), may require a production of statements of witnesses and potential witnesses at different times under different circumstances than are specified in the above Rule.
See State v. Hilling, 219 N.W.2d 164 (N.D. 1974) and State v. Hager, 271 N.W.2d 476 (N.D. 1978), for discussion on Rule 16 by the North Dakota Supreme Court.
Judge Leclerc MOVED that the Explanatory Note to Rule 16, North Dakota Rules of Criminal Procedure, as amended and adopted by the Committee, be submitted to the Supreme Court for promulgation and adoption. Mr. Hill seconded the motion. Motion CARRIED.
RECESS
The Committee recessed to 1:00 p.m.
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CALL TO ORDER
The meeting was called to order at 1:00 p.m., February 17, 1983, by Justice Paul M. Sand, Chairman.
RULE 33, NDRCivP
Judge Burdick MOVED to amend the proposed amendment to Rule 33, NDRCivP, Alternative 2, by deleting lines 28 through 31, and inserting the following language: "A party is not required to answer an interrogatory that is repetitive of any interrogatory he has already answered. A party who has been served with a response to an interrogatory submitted by another party is to be regarded as having served the interrogatory." Mr. Bucklin seconded the motion. Motion CARRIED. Judge Leclerc wished to be recorded as voting no.
INTERROGATORIES TO PARTIES
(a) Availability - Procedures for Use. Any party may serve upon any other party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories, without leave of court, may be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party.
Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection must be; stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within 30 days after the service of the interrogatories, but a defendant may serve answers or objections within 45 days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under Rule 37(a) with respect to any objection to or other failure to answer an interrogatory.
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A party is not required to answer an interrogatory that is repetitive of any interrogatory he has already answered. A party who has been served with a response to an interrogatory submitted by another party is to be regarded as having served the interrogatory.
(b) Scope - Use at Trial. Interrogatories may relate to any matters than can be inquired into under Rule 26(b), and the answers may be used to the extent permitted by the rules of evidence.
An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact, or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time.
(c) Option to Produce Business Records. If the answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit or inspection of those business records, including a compilation, abstract or summary thereof, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. A specification must be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained.
Judge Burdick MOVED that Rule 33, North Dakota Rules of Civil Procedure, as amended and adopted by the Committee be submitted to the Supreme Court for promulgation and adoption. Mr. Bucklin seconded the motion. Motion CARRIED. Judge Leclerc voted no.
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RULE 33, NDRCivP - Explanatory Note
Mr. Bucklin MOVED to amend the Explanatory Note to Rule 33, NDRCivP, as follows: In line 1 insert "substantially" before "identical"; and add the following language:
"except for the third paragraph of subdivision (a), which was added by an amendment adopted in 1983, effective ________________, 1983. The additional paragraph relieves a party from the need to answer the same interrogatory more than once and allows all parties the standing that was lacking in Olson v. A. W. Chesterton Co., 256 N.W.2d 530, 539 (N.D. 1977)."
Judge Burdick seconded the motion. Motion CARRIED. Judge Leclerc voted No.
EXPLANATORY NOTE
Rule 33 is substantially identical to Rule 33, FRCivP, except for the third paragraph of subdivision (a), which was added by an amendment adopted in 1983, effective ______________, 1983. The additional paragraph relieves a party from the need to answer the same interrogatory more than once and allows all parties the standing that was lacking in Olson v. A. W. Chesterton Co., 256 N.W.2d 530, 539 (N.D. 1977).
Mr. Bucklin MOVED that the Explanatory Note to Rule 33 of North Dakota Rules of Civil Procedure, as amended and adopted by the Committee, be submitted to the Supreme Court for promulgation and adoption. Judge Burdick seconded the motion. Motion CARRIED. Judge Leclerc voted No.
Mr. David L. Peterson joined the Committee meeting at 2:20 p.m.
RULE 37, NDRCrimP
Mr. Hill MOVED to amend Rule 37, NDRCrimP, by deleting "With Increased Jurisdiction" in the title; and in line 74 after the word "county" insert "court" and delete the words "with increased jurisdiction." Judge Murray seconded the motion. Motion CARRIED.
Mr. Hill MOVED that Rule 37, North Dakota Rules of Criminal Procedure, as amended be adopted. Judge Murray seconded the motion. Motion CARRIED.
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APPEAL AS OF RIGHT TO DISTRICT COURT,
OR COUNTY COURT;
HOW TAKEN
(a) Filing the Notice of Appeal. An appeal permitted by law as of right from a trial court to the appellate court shall be taken by filing a notice of appeal with the clerk of the trial court within the time allowed by Subdivision (b) of this Rule. Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court deems appropriate, which may include dismissal of the appeal.
(b) Time for Appeal; When Taken. The notice of appeal by a defendant shall be filed with the clerk of the trial court within 10 days after the entry of the judgment or order appealed from. A notice of appeal filed after the announcement of the verdict, decision, sentence, or order but before entry of the judgment or order shall be treated as filed after such entry and on the day thereof. If a timely motion in arrest of judgment or for a new trial on any ground other than newly discovered evidence has been made, an appeal from a judgment of conviction may be taken within 10 days after the entry of an order denying the motion. A motion for a new trial based on the ground of newly discovered evidence will similarly extend the time for appeal from a judgment of conviction if the motion is made before or within 10 days after entry of the judgment. When an appeal by the prosecution is authorized by statute, the notice of appeal shall be filed with the clerk of the trial court within 30 days after the entry of judgment or order appealed from. A judgment or order is entered within the meaning of this Subdivision when it is entered in the criminal docket. Upon a showing of excusable neglect the trial court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Subdivision.
(c) Content of the Notice of Appeal. The notice of appeal shall specify the party or parties taking the appeal; shall designate the verdict, judgment, order, or part thereof appealed from; and shall name the court to which the appeal is taken.
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(d) Service of the Notice of Appeal. The clerk of the trial court shall serve notice of the filing of the notice of appeal either by personal service on the defendant or by mail addressed to him, and by mailing a copy thereof to the prosecutor and to the defendant's counsel, if any, of record. The clerk shall also mail a copy of the notice of appeal BS ID the docket entries to the clerk of the appellate court. The clerk shall note on each copy served the date on which the notice of appeal was filed. Failure of the clerk to serve notice shall not affect the validity of the appeal. Service shall be sufficient notwithstanding the death of a party or his counsel. The clerk shall note in the docket the names of the parties to whom he mails copies, with the date of mailing.
(e) Transmittal to Appellate Court. Within five days after the notice of appeal is filed with the court from which the appeal is taken, the clerk of the court, or the judge if there is no clerk, shall transmit to the clerk of the court to which the appeal is taken the notice of appeal, the verdict, the judgment, or any order of the court from which the appeal is taken, the complaint or information, and the undertaking on appeal, if any, and all documents and papers filed in the action, which shall be docketed by the clerk of the appellate court without charge to the appellant.
(f) Designation of Parties on Appeal. A party appealing shall be known as appellant and an adverse party shall be known as appellee, but the title of the action shall not be changed in consequence of the appeal.
(g) Effect and Scope of Appeal. An appeal to the district court or to the county court, when perfected, transfers the action to such court for trial anew. An appeal from a judgment of conviction constitutes an appeal from any verdict of guilty upon which the judgment is rendered.
(h) Supervision in Appellate Court. The supervision and control of the proceedings on appeal shall be in the appellate court from the time an appeal is taken except as otherwise provided in these Rules. The appellate court, at any time after an appeal is taken, may entertain a motion to dismiss the appeal or direct the trial court to modify or vacate any order made by the trial court or by any judge relating to the prosecution of the appeal, including any order fixing or denying bail.
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Mr. Hill MOVED that Rule 37, NDRCrimP, as amended and adopted by the Committee be submitted to the Supreme Court for promulgation and adoption. Judge Murray seconded the motion. Motion CARRIED.
RULE 37, NDRCrimP - Explanatory Note
Mr. Hill MOVED that the Explanatory Note to Rule 37, NDRCrimP, be amended in line 7 to delete "from the district"; in line 9 delete "county justice courts"; in line 20 delete "(Section 33-12-34, N.D.C.C.)" and insert "(N.D.C.C. § 40-18-19)"; delete the remainder of line 21 and all of line 22 except "the" at the end of the line; line 23 delete "in matters of fact or law," and insert "from a judgment of conviction in municipal court"; line 113 delete "[Existing law provides"; delete lines 114 and 115; line 126, delete "33-12-40" and insert "27-07.1-18 and 40-18-19"; line 129, delete "with increased jurisdiction"; line 130, delete "; county justice court or county court"; line 131, delete "without increased jurisdiction", and insert "This subdivision, along with the title, was amended in 1983, effective _________________ 1983, to delete obsolete references to the county court with increased jurisdiction."; line 138, delete "With"; line 139 delete "Increased Jurisdiction"; line 148, delete "with increased jurisdiction"; and when so amended to adopt the Explanatory Note to Rule 37, NDRCrimP. Judge Murray seconded the motion. Motion CARRIED.
Rule 37 has no counterpart in the Federal Rules of Criminal Procedure. Rule 37, F.R.Crim.P., was abrogated in 1968 with the adoption of the Federal Rules of Appellate Procedure. The requirement for a rule of procedure for criminal appeals is rendered necessary because the North Dakota Rules of Appellate Procedure, promulgated 1973, are limited in scope to appeals to the supreme court while the scope of the criminal rules includes the municipal court and county courts. The Rule is intended to parallel as closely as possible the procedure of the Appellate Rules.
Under the provisions of Subdivision (a) nothing more is required for the perfection of an appeal than the filing of a notice of appeal with the clerk of the court that rendered the judgment. This Subdivision acknowledges that the right to appeal in a criminal case is limited by statute. [State v. Higgins, 145 N.W.2d 478 (N.D. 1966); State v. McEnroe, 69 N.D. 445, 287 N.W. 817 (1939).]
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Under existing law (N.D.C.C. § 40-18-19) the defendant may take an appeal from a judgment of conviction in municipal court. The State may take an appeal from any trial court in specific instances which are provided under Section 29-28-07, N.D.C.C., provided they don't infringe upon the defendant's constitutional right prohibiting double jeopardy. It was held in City of Bismarck v. Materi, supra, that a city may appeal from a decision of a district court holding an ordinance unconstitutional.
Subdivision (b) is adapted in the language of Rule 4(b), N.D.R.App.P., and governs the time for appeal with respect to all appeals that may be taken within the scope of these Rules--10 days for the defendant and 30 days for the prosecution. This requirement is intended to avoid prolongation of the process and to keep delays at a minimum. The requirement that the notice of appeal be filed [with the clerk of the trial court] within 10 days of the entry of judgment or order appealed from has been termed "mandatory and jurisdictional".[9 Moore's Federal Practice, 987 (2d Ed. 1972) citing United States v. Robinson, 361 U.S. 220, 229, 80 80 S.Ct. 282, 4 L.Ed.2d 259 (1960).] The "mandatory and jurisdictional" requirement is eased by the provision in Subdivision (b) which permits the trial court to extend the time for appeal upon a showing of excusable neglect. The 10-day provision under this Rule differs from existing State law in that (1) no distinction is made with respect to time between the rendition of the verdict or judgment and the order of the court; and (2) the time is substantially reduced. The provision in Rule 32 which requires that the defendant be advised of his right to appeal and the right of a person who is unable to pay the cost of appeal to have it provided at public expense is clearly a necessary part of a valid sentence and until it is given, the 10-day period for taking an appeal cannot begin to run because there is no valid sentence in existence. [9 Moore's, supra, at p. 990]. The provision which precludes the extension of time for appeal pending motion for new trial based on newly discovered evidence is necessary because such a motion under Rule 33 may be made within two years. The provision that "A notice of appeal filed after the announcement of the verdict, decision, sentence or order but before entry of the judgment or order shall be treated as filed after such entry and on the day thereof", incorporates the holding of Lemke v. United States, 346 U.S. 325, 74 S.Ct. 1, 98 L.Ed. 3 (1953).
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Subdivision (c) is adapted from the language of Rule 3(c), N.D.R.App.P., which has its origins in former Rule 37(a), F.R.Crim.P. Three requirements for the notice of appeal are set out in this Subdivision: it must (1) specify the parties taking the appeal, (2) designate the verdict, judgment or order or part thereof appealed from, and (3) name the court to which the appeal is taken. Under the first requirement, it is important that the notice specify by name the appellant or appellants. [9 Moore's, supra, at p. 750.] Failure of the notice to correctly designate the court to which the appeal is taken does not vitiate it. Misnomer is immaterial, at least if it is obvious to which appellate court the appeal must go. [9 Moore's, supra, citing Cutting v. Bullerdick, 178 F.2d 774 (9th Cir. 1949)]. The requirement that the notice of appeal "designate the judgment or part thereof appealed from" was designed to simplify the taking of an appeal by requiring nothing more for its perfection than an identification of the judgment by the date of its entry.
Subdivision (d) is adapted from Rule 3(d), NDRAppP, and provides for service of the notice of appeal. Under this Subdivision, the appellant is not obligated to serve the notice of appeal on other parties to the action. It is the duty of the clerk of the trial court (or magistrate where there is no clerk) to: (1) serve notice of the filing of notice of appeal either by personal service on the defendant or by mail addressed to him, and by mailing a copy thereof to the prosecutor and to the defendant's counsel, if any [The "if any, of record" provision recognizes that a defendant need not be represented by counsel, but if he is so represented, it must be noted on the record.]; (2) mail a copy of the notice of appeal and of the docket entries to the clerk of the appellate court; and (3) note on each copy served the date on which the notice of appeal was filed.
Subdivision (e) establishes a five-day maximum time limit within which the clerk, or judge where there is no clerk, must forward the file with those documents listed in the Rule to the clerk of court to which the appeal is taken.
Subdivision (f) provides the designation of parties to the appeal and follows existing law (Section 29-28-04, N.D.C.C.) to the extent that it makes
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explicit that the title of the action shall not be changed "in consequence" of the appeal. The designation of the party who contends against the appeal as an appellee rather than respondent modifies existing practice (Section 29-28-04, N.D.C.C.) and this change is intended to avoid confusion, especially in special proceedings.
Subdivision (g) defines the effect of appeal. This Subdivision follows existing law (Section 27-07.1-18 and 40-18-19, N.D.C.C.) in providing for trial anew when an appeal is taken to the district court or county court from the municipal court. This subdivision, along with the title, was amended in 1983, effective _______________, 1983, to delete obsolete references to the county court with increased jurisdiction.
Subdivision (h) is adapted from Rule 39, F.R.Crim.P. (abrogated in 1968). Provision for supervision of appeal is included in this Rule to provide for appeals to those courts (the District Courts and County Courts) not covered by the North Dakota Rules of Appellate Procedure. This Subdivision provides that the appellee may obtain relief from the appeal by one of the methods stated. The provision contemplates that the parties shall first apply to the trial court for any relief regarding the appeal; however, once the appeal passes to the appellate court, the trial court has no power to modify its judgment or dismiss the appeal.
The term "appellate court" as used in this Rule refers to the county court and the district court only.
Mr. Hill MOVED that the Explanatory Note to Rule 37, NDRCrimP, as amended and adopted by the Committee be submitted to the Supreme Court for promulgation and adoption. Judge Murray seconded the motion. Motion CARRIED.
RULE 1, NDRAppP
Mr. Hill MOVED that Rule 1, NDRAppP, be amended as follows: Line 10, delete "of increased jurisdiction"; line 13, delete "of increased jurisdiction"; and that when so amended Rule 1, NDRAppP, be adopted. Judge Murray seconded the motion. Motion CARRIED.
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SCOPE OF RULES
(a) Scope of Rules. These rules govern procedure in appeals to the supreme court of North Dakota, and in applications for writs or other relief which the supreme court or a justice thereof is competent to give.
(b) Rules Not To Affect Jurisdiction. These rules shall not be construed to extend or limit the jurisdiction of the supreme court as established by law.
(c) Trial Court. The term "trial court" under these rules shall include the district court and the county court. The term "clerk of the trial court" under these rules shall include the clerk of the district court and the clerk of the county court.
(d) Parties. Subject to the provisions of Rule 28(h), the party perfecting an appeal shall be known as the appellant, and the respondent party shall be known as the appellee.
Mr. Hill MOVED that Rule 1, North Dakota Rules of Appellate Procedure, as amended and adopted by the Committee, be submitted to the Supreme Court for promulgation and adoption. Judge Murray seconded the motion. Motion CARRIED.
RULE 1, NDRAppP - Explanatory Note
Mr. Hill MOVED that the Explanatory Note to Rule 1, NDRAppP, be amended as follows: Line 7, delete "§ 87" and insert "Art. VI, § 3 [formerly § 87]; Add the following language at the end of the Note "Subdivision (c) was amended in 1983, effective ______________, 1983, to delete obsolete references to county courts 'of increased jurisdiction.'", and when so amended to adopt the Explanatory Note to Rule 1, NDRAppP. Judge Murray seconded the motion. Motion CARRIED.
These rules, paralleling the Federal Rules of Appellate Procedure, are to be construed in light of a desire for "simplicity in procedure, fairness in administration, the just determination of litigation, and the elimination of unjustifiable expense and delay. * * *" 28 U.S.C. § 331.
The present authority for promulgation of procedural rules is Art. VI, § 3 [formerly § 87], North Dakota Constitution, and § 27-02-08 and § 27-02-09, N.D.C.C.
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Although most conflicting statutes are found in the Table of Superseded Statutes, it is clear that any existing or future conflicting rule or statute relating to appellate procedure is also superseded under the authority of § 27-02-09, N.D.C.C., and Rule 49(b).
Rule 1 is derived from Rule 1, Federal Rules of Appellate Procedure (F.R.App.P. ) but is revised to cover the more limited sources of appeal to the North Dakota Supreme Court. Unlike some other state court adaptations, these rules are intended to cover both criminal and civil appeals. In taking the Federal Rules of Appellate Procedure as a model, it is contemplated that the federal practice and authority will apply to those rules which have substantially the same form as their federal counterpart. The rules follow the same numbering as the federal rules with omissions for rules, or subdivisions of rules, not appropriate for adoption.
Subdivision (c) was amended in 1983, effective _______________, 1983, to delete obsolete references to county courts "of increased jurisdiction."
Mr. Hill MOVED that the Explanatory Note to Rule 1, North Dakota Rules of Appellate Procedure, as amended and adopted by the Committee, be submitted to the Supreme Court for promulgation and adoption. Judge Murray seconded the motion. Motion CARRIED.
RULE 47.1, NDRAppP
Mr. Hill MOVED that Rule 47.1, NDRAppP, be amended as follows: Line 2, delete "with increased jurisdiction", and when so amended that Rule 47.1, NDRAppP, be adopted. Judge Murray seconded the motion. Motion CARRIED.
CERTIFICATION OF QUESTIONS OF LAW
BY STATE COURT
(a) Who May Certify Questions of Law. Any district court or county court in its discretion may submit a question of law pursuant to Section 32-24-01, N.D.C.C., to the supreme court for final determination by the use of a certification order.
(b) Contents of Certification Order and Supporting Documentation.
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(1) A certification order must contain:
(i) Findings of fact of all pertinent facts needed to resolve the question of law.
(ii) The question of law formulated in such a manner that it may be answered by yes or no and the trial court's answers to each question.
(2) The certifying court shall transmit with the certification order any parts of the record and other documents it deems necessary in answering the certified questions. The supreme court may require that an original or copies of all or any portion of the record be filed if in its opinion the record or portion thereof is necessary in answering the certified questions.
(c) Procedure in Supreme Court. In supreme court proceedings, the parties shall retain the same designations as in the certifying court. The plaintiff in the certifying court shall file a brief with the clerk of the supreme court within the time specified by the trial court. The defendant shall file a brief in response to the brief of the plaintiff within the time specified by the trial court. Any party may request an extension of time pursuant to Rule 26(b), but promptness is required. Oral argument shall be governed by Rule 34.
(d) Costs. Fees and costs shall be the same as in civil appeals docketed before the supreme court and shall be equally divided by the parties unless otherwise ordered by the certifying court in its order of certification.
Mr. Hill MOVED that Rule 47.1, NDRAppP, as amended and adopted by the Committee, be submitted to the Supreme Court for promulgation and adoption. Judge Murray seconded the motion. Motion CARRIED.
RULE 47.1, NDRAppP - Explanatory Note
Mr. Hill MOVED that the Explanatory Note to Rule 47.1, NDRAppP, be amended as follows: Line 16, add "Subdivision (a) was amended in 1983, effective _______________, 1983, to delete an obsolete reference to a county court 'with increased jurisdiction.'", and when so amended to adopt the Explanatory Note to Rule 47.1, North Dakota Rules of Appellate Procedure. Judge Murray seconded the motion. Motion CARRIED.
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This rule provides a method by which certain trial courts in this State may certify questions of law in civil or criminal cases to the Supreme Court for its determination. The certification is discretionary with the trial court, and a certified question need not be answered by the Supreme Court. See § 32-24-02, N.D.C.C. An order by the trial court denying certification is not an appealable order. Schaff v. Kennelly, 69 N.W.2d 777 (N.D. 1955).
Subdivision (a), by reference, contains the requirements of § 32-24-01, N.D.C.C. That statute states questions of law may be certified only if the case in which they arise depends "principally or wholly on the construction of the laws applicable thereto, and such construction or interpretation is vital, or of great moment in the cause." Subdivision (a) was amended in 1983, effective _______________, 1983, to delete an obsolete reference to a county court "with increased jurisdiction."
The certification order may be prepared by the court or the parties, but it must be transmitted to the Supreme Court by the clerk of the certifying court. See § 32-24-04, N.D.C.C. It is imperative that the Supreme Court be sufficiently apprised of the facts in the case. The questions of law must first be ruled upon by the certifying court, and any issues of fact necessary for the determination of the questions of law must also be found by the trial court.
The intent of subdivision (c) is to assure that the questions are presented to the Supreme Court as expeditiously as possible, with little delay in the final hearing and determination of the case.
Mr. Hill MOVED that the Explanatory Note to Rule 47.1, North Dakota Rules of Appellate Procedure, as amended and adopted by the Committee, be submitted to the Supreme Court for promulgation and adoption. Judge Murray seconded the motion. Motion CARRIED.
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RULE 12, NDRCrimP
Judge Burdick MOVED to amend Rule 12, NDRCrimP, on lines 3 and 4 delete "with increased jurisdiction" and "or county justice court", and insert "or" before "municipal court"; line 66, delete "and"; line 67, delete 2 "justice courts"; and when so amended that Rule 12, NDRCrimP, be adopted. Mr. Peterson seconded the motion. Motion CARRIED.
PLEADINGS AND MOTIONS BEFORE TRIAL:
DEFENSES AND OBJECTIONS
(a) Pleadings and Motions. Pleadings in criminal proceedings shall be the indictment and the information in district court, the complaint in county court or municipal court, and the pleas of not guilty and guilty. All other pleas, demurrers and motions to quash are abolished. Defenses and objections raised before trial shall be raised only by motion to dismiss or to grant appropriate relief, as provided in these Rules.
(b) Pretrial Motions. Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. The following must be raised prior to trial:
(1) Defenses and objections based on defects in the institution of the prosecution;
(2) Defenses and objections based on defects in the indictment, information, or complaint other than that it fails to show jurisdiction in the court or to charge an offense, which objections shall be noticed by the court at any time during the pendency of the proceeding;
(3) Motions to suppress evidence on the ground that it was illegally obtained;
(4) Requests for discovery under Rule 16; or
(5) Requests for a severance of charges or defendants under Rule 14.
(c) Motion Date. At the time of the arraignment or as soon thereafter as practicable, the court may set a time for making pretrial motions and, if required, a later date for hearing.
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(d) Notice by the Prosecution of the Intention to Use Evidence.
(1) At the Discretion of the Prosecution. At the arraignment, or as soon thereafter as is practicable, the prosecution may give notice to the defendant of its intention to use specified evidence at trial in order to afford the defendant an opportunity to raise objections to that evidence prior to trial under Subsection (b)(3).
(2) At the Request of the Defendant. At the arraignment or as soon thereafter as is practicable, the defendant, in order to afford an opportunity to raise objections to evidence prior to trial under Subsection (b)(3), may request notice of the prosecution's intention to use in its evidence in chief at trial any evidence to which the defendant is entitled to discovery under Rule 16 subject to any relevant limitations prescribed in Rule 16.
(e) Ruling on Motion. A motion before trial shall be determined before trial unless the court, upon a finding of good cause, orders that it be deferred for determination at the trial of the general issue or until after verdict, but no determination may be deferred if a party's right to appeal is adversely affected. If factual issues are involved in determining a motion, the court shall state its essential findings on the record.
(f) Effect of Failure to Raise Defenses or Objections. Failure by the defendant to raise defenses or objections or to make requests which must be made prior to trial, at the time set by the court pursuant to Subdivision (c), or prior to any extension thereof made by the court, shall constitute a waiver thereof, but the court for cause shown may grant relief from the waiver.
(g) Records. Except in municipal courts a verbatim record shall be made of all proceedings at the hearing, including any findings of fact and conclusions of law made orally.
(h) Effect of Determination. If the court grants a motion based on a defect in the institution of the prosecution or in the complaint, indictment, or information, it may also order that the defendant be held in custody or that his bail be continued for a specified time pending the filing of a new indictment, information, or complaint.
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Judge Burdick MOVED that Rule 12, NDRCrimP, as amended and adopted by the Committee, be submitted to the Supreme Court for promulgation and adoption. Judge Murray seconded the motion. Motion CARRIED.
RULE 12, NDRCrimP - Explanatory Note
Judge Burdick MOVED to amend the Explanatory Note to Rule 12, NDRCrimP, on line 6 delete "with increased jurisdiction, county justice court,"; line 11 delete, "with increased jurisdiction"; add the following language at the end of line 14: "The subdivision was amended in 1983, effective ______________, 1983, to delete obsolete references to the county court with increased jurisdiction and the county justice court."; line 234 insert "Subdivision (g) was amended in 1983, effective _____________, 1983, to delete an obsolete reference to justice courts."; and when so amended that the Explanatory Note to Rule 12, NDRCrimP, be adopted. Mr. Peterson seconded the motion. Motion CARRIED.
Rule 12 is an adaptation of Rule 12, F.R.Crim.P., and the Proposed Amendments thereto [48 F.R.D. 578 (1970)], and deals with the raising of defenses and objections prior to trial. The exceptions to the Federal Rule reflect the use of the complaint as a pleading in the county court and municipal court.
Subdivision (a) provides that the only pleadings in criminal proceedings are the indictment or information in the district court; the complaint in the county court and municipal court; and pleas of guilty and not guilty. This Rule expressly abolishes all other pleas and abolishes demurrers and motions to quash. The subdivision was amended in 1983, effective _______________, 1983, to delete obsolete references to the county court with increased jurisdiction and the county justice court.
The Notes of Advisory Committee on Rules, note to Rule 12(a) [18 U.S.C.A., Federal Rules of Criminal Procedure, p. 607], state:
"This rule abolishes pleas to the jurisdiction, pleas in abatement, demurrers, special pleas in bar, and motions to quash. A motion to dismiss or for other appropriate relief is substituted for the purpose of raising all defenses and objections heretofore interposed in any of the foregoing modes. 'This should result in a reduction of opportunities for dilatory tactics and, at the same time, relieve the defense of embarrassment. Many competent practitioners
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have been baffled and mystified by the distinctions between pleas in abatement, pleas in bar, demurrers, and motions to quash, and have, at times, found difficulty in determining which of these should be invoked.' Homer Cummings, 29 A.B.A. Jour. 655. See also Medalie, 4 Lawyers Guild R. (3) 1,4. "A similar change was introduced by the Federal Rules of Civil Procedure [Rule 7(a)] which has proven successful. It is also proposed by the A.L.I. Code of Criminal Procedure (Sec. 209)."
All objections or defenses raised before trial must be made by a simple motion to dismiss or by motion to grant appropriate relief as provided in these Rules. Subdivision (a) speaks only of defenses and objections that prior to the Rules could have been raised by plea, demurrer, or motion to quash.
Selection of a wrong plea will no longer be a hazard, since there is now but one mode of raising all objections and defenses. Even if counsel, unaware of procedural changes, ignorantly interposes an obsolete plea or motion, it may be considered as a motion to dismiss.
Subdivision (b) provides that any defense or objection that is capable of determination without before trial, but a defendant has no standing to attack a count in an indictment, information, or complaint in which he is not charged with the commission of an offense. Subdivision (b) further provides that certain motions must be made prior to trial.
The Advisory Committee Note [48 F.R.D. 582 (1970)] for the proposed amendments to the Federal Rules provides as follows:
"Subdivision (b)(1) and (2) are restatements of the current rule.
"Subdivision (b)(3) makes clear that objections to evidence on the ground that it was illegally obtained must be raised prior to trial. This is the current rule with regard to evidence obtained as a result of an illegal search. * * * It is also the practice with regard to other forms of illegality such as the use of unconstitutional means to obtain a confession. See C. Wright, Federal Practice and Procedure: Criminal, § 673 at p. 108 (1969). It seems apparent that
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the same principle should apply whatever the claimed basis for the application of the exclusionary rule of evidence may be. This is consistent with the court's statement in Jones v. United States, 362 U.S. 257, 264 (1960):
'This provision of Rule 41(e), requiring the motion to suppress to be made before trial, is a crystallization of decisions of this Court requiring that procedure and is designed to eliminate from the trial disputes over police conduct not immediately relevant to the question of guilt.'
"Subdivision (b)(4) provides for a pretrial request for discovery by either the defendant or the government to the extent to which such discovery is authorized by rule 16.
"Subdivision (b)(5) provides for a pretrial request for a severance as authorized in rule 14.
"Subdivision (c) provides that a time for the making of motions shall be fixed at the time of the arraignment or as soon thereafter as practicable by court rule or direction of a judge. The rule leaves to the individual judge whether the motions may be oral or written. This and other amendments to rule 12 are designed to make possible and to encourage the making of motions prior to trial, whenever possible, and in a single hearing rather than in a series of hearings. This is the recommendation of the American Bar Association's Committee on Standards Relating to Discovery and Procedure Before Trial (1969). * * *
"There is a similar trend in state practice. See e.g., State ex rel. Goodchild v. Burke, 27 Wis.2d 244, 133 N.W.2d 753 (1965); State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 141 N.W.2d 3 (1965).
"The rule provides that the motion date be set at 'the arraignment or as soon thereafter as practicable.' This is the practice in some federal courts including those using the omnibus hearing. * * * The rule further provides that the date may be set before that a defendant knows of the government's intention to use evidence to which the defendant may want to object. On some occasions the resolution of the admissibility issue
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prior to trial may be advantageous to the government. In these situations the attorney for the government can make effective defendant's obligation to make his motion to suppress prior to trial by giving defendant notice of the government's intention to use certain evidence." See United States v. Desist, 384 F.2d 889, 897 (2d Cir. 1967).
"In cases in which defendant wishes to know what types of evidence the government intends to use so that he can make his motion to suppress prior to trial, he can request the government to give notice if it intends to use specified evidence to which the defendant is entitled to discovery under rule 16.
"Although the defendant is already entitled to discovery of such evidence prior to trial under proposed rule 16, proposed rule 12 makes it possible for him to avoid the necessity of moving to suppress evidence which the government does not intend to use. No sanction is provided for the government's failure to comply with the court's order because the committee believes that attorneys for the government will in fact comply and that judges have ways of insuring compliance. An automatic exclusion of such evidence, particularly where the failure to give notice was not deliberate, seems to create too heavy a burden upon the exclusionary rule of evidence, especially when defendant has opportunity for broad discovery under proposed rule 16. Compare ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Electronic Surveillance (1968) at p. 116:
'A failure to comply with the duty of giving notice could lead to the suppression of evidence. Nevertheless, the standards make it explicit that the rule is intended to be a matter of procedure which need not under appropriate circumstances automatically dictate that evidence otherwise admissible be suppressed.'
"Pretrial notice by the prosecution of its intention to use evidence which may be subject to a motion to suppress is increasingly being encouraged in state practice. See, e.g., State ex rel.
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Goodchild v. Burke, 27 Wis.2d 244, 264, 133 N.W.2d 753, 763 (1965). * * * See also State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 553-556, 141 N.W.2d 3, 13-15 (1965). * * *
"Subdivision (e) provides that the court shall rule on a pretrial motion before trial unless the court orders that it be decided upon at the trial of the general issue or after verdict. This is the current rule. The reference to issues which must be tried by the jury is dropped as unnecessary, without any intention of changing current law or practice. The current rule begs the question of when a jury decision is required, providing only that a jury is necessary if 'required by the Constitution or an act of Congress.' The issue has apparently only been raised once in a reported case. See C. Wright, Federal Practice and Procedure: Criminal, § 192 at p. 414 n.p. 85 (1969)."
Subdivision (e) was amended effective January 1, 1980, to require the existence of "good cause" to defer ruling on the motion, with the intent of discouraging the tendency to reserve ruling on pretrial motions. Moreover, the court cannot defer its ruling if to do so will adversely affect a party's right to appeal. This will protect certain prosecution appeal rights which could be deprived by a deferred ruling.
The Advisory Committee note continues:
"Subdivision (f) provides that a failure to raise the objections or make the requests specified in subdivision (b) constitutes a waiver thereof, but the court is allowed to grant relief from the waiver if adequate cause is shown. See C. Wright, Federal Practice and Procedure: Criminal, § 192 (1969), where it is pointed out that the current rule is unclear as to whether the waiver results only from a failure to raise the issue prior to trial or from the failure to do so at the time fixed by the judge for a hearing. The amendment makes clear that the defendant has an obligation to raise the issue at the motion date set by the judge pursuant to subdivision (c).
"Subdivision (g) requires that a verbatim record be made of pretrial motion proceedings and requires the judge to make a record of his findings of fact and conclusions of law. This is desirable if pretrial rulings are to be subject to post-con-
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viction review on the record. The judge may find and rule orally from the bench, so long as a verbatim record is taken. There is no necessity of a separate written memorandum containing the judge's findings and conclusions. The rule does not specify whether statements made by the defendant at a pretrial motion proceeding are admissible against him at the trial. Simmons v. United States, 390 U.S. 377 (1968), apparently prohibits the use of a pretrial admission at trial if the defendant's statement was made for the purpose of raising a constitutional issue prior to trial, such as the legality of a search and seizure. The rule leaves to case law the question of admissibility of defendants' statements of such character. "Subdivision (h) is essentially present rule 12(b)(5) except for the deletion of the provision that defendant may plead if the motion is determined adversely to him or, if he has already entered a plea, that that plea stands. This language seems unnecessary particularly in light of the experience in some district courts where a pro forma plea of not guilty is entered at the arraignment, pretrial motions are later made, and depending upon the outcome the defendant may then change his plea to guilty or persist in his plea of not guilty."
Subdivision (g) was amended in 1983, effective _______________, 1983, to delete an obsolete reference to justice courts.
The deletion of the sentence "This rule does not affect the provisions of any statute relating to periods of limitations," from Subdivision (h) is primarily because North Dakota does not have statutes comparable to the Federal statutes. [See also: 90 A.L.R. 452, 456.]
Judge Burdick MOVED that the Explanatory Note to Rule 12, North Dakota Rules of Criminal Procedure, as amended and adopted by the Committee, be submitted to the Supreme Court for promulgation and adoption. Judge Murray seconded the motion. Motion CARRIED.
HOUSE BILL 1202
Judge Burdick MOVED that this Committee communicate to the Legislative Assembly the Committee's opposition to House Bill 1202 for the reason that it is violative of Section 10 of the Constitution and also the North Dakota
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Rule of Criminal Procedure. The Committee believes that the filing of the information or indictment should control the statute of limitations, rather than the filing of the complaint. Judge O'Keefe seconded the motion. Motion CARRIED. Judge Glaser abstained.
SENATE BILL 2303
Judge Burdick MOVED that this Committee communicate with the Legislative Assembly urging them not to pass the amended provisions contained in lines 17 and 19 of Senate Bill 2303, on the ground that we believe this amendment is violative of Article I, § 13, of the North Dakota Constitution. Mr. Peterson seconded the motion. Motion CARRIED. Judge Glaser, Judge Leclerc and Justice Sand abstained.
RECESS
The Committee recessed to February 19, 1983, at 9:00 a.m.
CALL TO ORDER
The meeting was called to order at 9:00 a.m., February 18, 1983, by Justice Paul M. Sand, Chairman.
ROLL CALL
Present
Hon. Eugene A. Burdick
Hon. Gerald G. Glaser
Hon. William S. Murray
Mr. Leonard H. Bucklin
Mr. William A. Hill
Mr. James L. Lamb
Mr. Herbert L. Meschke
RULE 2.1, NDRAppP
Mr. Hill MOVED that proposed Rule 2.1, NDRAppP, as amended, be adopted. Judge Murray seconded the motion. Motion CARRIED.
MENTAL HEALTH APPEALS
PURSUANT TO CHAPTER 25-03.1,
NORTH DAKOTA CENTURY CODE
(a) Filing of Notice of Expedited Appeal. An expedited appeal from an order pursuant to Section
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25-03.1-29, North Dakota Century Code, may be taken by filing a notice of appeal with the clerk of the trial court within 30 days after entry of the order.
(b) Content of the Notice of Appeal. The notice of appeal must specify the party or parties taking the appeal; must designate the judgment, order or part thereof appealed from; and must name the court to which the appeal is taken.
(c) The Record on Appeal. The record on appeal shall consist of the record required by Rule 10(a). A tape recording of the proceedings or an agreed statement of the case may substitute for the transcript.
(d) Briefs or Appendices. No briefs or appendices are required. An appellant who desires to file a brief shall file it with the notice of appeal. Any responding brief must be filed before the date of hearing.
(e) Notice of Appellant's Presence at Hearing. If the appellant intends to be present at the hearing, notice of the intention must accompany the notice of appeal. Thereafter any party may file a proposed interim order to be issued by the supreme court that will assure the appellant the opportunity to be present at the appeal hearing while protecting the interest sought to be served by the order appealed from, and must state with particularity the plans for implementing the proposed interim order.
(f) Motions. Any motion must be filed within 5 days after service of the notice of appeal. Any party may file a response in opposition to a motion within 5 days after service of the motion.
(g) Application of Other Rules. To the extent that they are not inconsistent with section 25-03.1-29, North Dakota Century Code, or this rule, all other rules of appellate procedure apply.
Mr. Meschke MOVED that Rule 2.1, North Dakota Rules of Appellate Procedure, as amended and adopted by the Committee, be submitted to the Supreme Court for promulgation and adoption. Judge Burdick seconded the motion. Motion CARRIED.
Mr. Meschke MOVED that all Rules, amendments to Rules, and Explanatory Notes adopted by the committee since October
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16, 1981, be submitted to the Supreme Court for promulgation and adoption. Mr. Lamb seconded the motion. Motion CARRIED.
NEXT MEETING
Mr. Meschke MOVED that the next committee meeting be held in conjunction with the hearing on the Rules. Mr. Hill seconded the motion. Motion CARRIED.
ADJOURNMENT
Mr. Meschke MOVED that the meeting adjourn to the call of the chair. Mr. Lamb seconded the motion. Motion CARRIED.
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Secretary