COURT AMENDS RULES
IN RESPONSE TO MARSY’S LAW
nondisclosure of contact information
under the provision.
In response to Art. I, § 25(1)(e), the Court
made three rule amendments.
Subdivision (f ) of Criminal Procedure
Rule 16 on discovery and inspection
was amended to bar a prosecutor from
disclosing contact information of a victim
if the victim makes a request.
MIKE HAGBURG
Attorney at Law
The North Dakota Supreme Court has
adopted several rule amendments in
response to the Marsy’s Law constitutional
amendment, N.D. Const. Art. I, § 25. The
amendments take effect May 1.
The amendments were developed by the
Joint Procedure Committee in response to
a request by the Administrative Council. In
drafting the amendments, the committee
attempted to take a minimalist approach,
limiting any changes to what was needed
to eliminate conflict between the rule text
and the constitutional provision.
N.D. Const. Art. I, § 25(1)(e) gives
victims: “[t]he right to prevent the
disclosure of information or records that
could be used to locate or harass the
victim or the victim’s family, or which
could disclose confidential or privileged
information about the victim, and to
be notified of any request for such
information or records.”
Attorney General Wayne Stenehjem
discussed this provision in a Dec. 30, 2016,
opinion. While the opinion considers Art.
I, § 25(1)(e) to be generally ambiguous,
it does conclude that victims may request
22
THE GAVEL
Subdivision (a) of Rule of Court 3.4 on
privacy protection for filings was amended
to require, upon request of the victim, the
redaction of all victim contact information
from documents before they may be filed
with the court in a criminal or delinquency
case.
New language was added to Section 6
of Administrative Rule 41 on access to
court records to require, upon request of
the victim, redaction of all victim contact
information contained in a criminal court
record that has already been filed.
N.D. Const. Art. I, § 25(1)(f ) gives
victims: “[t]he right to privacy, which
includes the right to refuse an interview,
deposition, or other discovery request
made by the defendant, the defendant’s
attorney, or any person acting on behalf
of the defendant, and to set reasonable
conditions on the conduct of any such
interaction to which the victim consents.”
The Court made two rule amendments in
response to this provision.
A new paragraph (a)(5) was added
to Criminal Procedure Rule 15 on
depositions allowing a victim to refuse to
participate in a deposition requested by
the defendant or the defendant’s attorney.
Similar language was added to paragraph
(e)(1) of Juvenile Procedure Rule 12.1 on
depositions, allowing a victim to refuse to
participate in a deposition requested by a
respondent or a respondent’s attorney.
N.D. Const. Art. I, § 25(1)(g) provides
“[t]he right to reasonable, accurate, and
timely notice of, and to be present at, all
proceedings involving the criminal or
delinquent conduct, including release, plea,
sentencing, adjudication, and disposition,
and any proceeding during which a right
of the victim is implicated.”
In response to this provision, a new
paragraph (3) was added to Juvenile
Procedure Rule 4 on interested persons to
allow a victim, on request, to take part in a
delinquency case.
N.D. Const. Art. I, § 25(1)(l) gives
victims the right “to receive a copy of any
presentence report or plan of disposition
when available to the defendant or
delinquent child.” The Court amended
paragraph (c)(4)(B) of Criminal Procedure
Rule 32 on sentencing and judgment to
allow the prosecutor to disclose to the
victim, on request, any material from
the presentence report disclosed to the
defendant and the defendant’s counsel.
Finally, in addition to making these rule
amendments, the Court administratively
changed the way payments collected from
defendants are distributed. N.D. Const.
Art. I, § 25(1)(n) requires “[a]ll monies and
property collected from any person who
has been ordered to make restitution shall
be first applied to the restitution owed
to the victim before paying any amounts
owed to the government.” Restitution
payments now have top priority when
funds paid by the defendant are distributed
by the court system.