Winter 2016 SBAND Gavel | Page 23

CHANGES TO RULES OF CRIMINAL PROCEDURE TO TAKE EFFECT MARCH 1 MIKE HAGBURG Attorney at Law The North Dakota Supreme Court has approved an assortment of amendments to the Rules of Criminal Procedure. These amendments will take effect March 1, 2016. Rule 12 on pleadings and pretrial motions has been overhauled based on the 2014 amendments to the federal rule. Rule 12 (b) was amended to provide specific guidance for pretrial motions. Paragraph (b) (2) now allows a motion claiming that the court lacks jurisdiction to be raised at any time. On the other hand, paragraph (b) (3) now requires specific listed motions to be made before trial if the basis for the motion is reasonably available and the motion can be determined without a trial on the merits. Rule 12 (c) was amended to provide deadlines for making pretrial motions and to spell out the consequences of failing to meet motion deadlines. Paragraph (c)(1) explains how deadlines for pretrial motions are set, paragraph (c)(2) allows the court discretion to reset deadlines, and paragraph (c)(3) explains how untimely motions are to be disposed of. Rule 34 on arresting judgment was amended in parallel with Rule 12 to recognize only one ground for a motion to arrest judgment: that the court is without jurisdiction of the offense charged. A motion to arrest judgment is a motion that may be made after the verdict or guilty plea was entered. Rule 34 previously allowed a claim that the indictment, information, or complaint did not charge an offense to be made as part of a motion to arrest judgment. Several other criminal rules were changed consistent with recent amendments to the federal rules. A new provision was added to Rule 11 on pleas that requires the court, before it accepts a plea of guilty, to advise a defendant that a conviction may cause immigration consequences. The new language mandates a generic warning, not specific advice concerning the defendant’s individual situation. Rule 15, the criminal deposition rule, gained a new section that allows a deposition to be taken outside the United States without the defendant’s presence under certain limited and specified circumstances. In an another amendment based on a federal change, Rule 5, which governs the initial appearance before the magistrate, was amended to require information to be provided at an initial appearance in a felony case that a defendant who is not a U.S. citizen has a right to request that a consular officer be informed of the defendant’s arrest. In further amendments to Rule 5, subdivision (e) now requires filing of a written dismissal if the prosecuting attorney decides not to pursue a charge initially brought before the court as part of a uniform complaint and summons. Rule 3 on the complaint was similarly amended to require a dismissal to be stated on the amended complaint if the prosecuting attorney chooses not to pursue charges raised in the initial complaint. Likewise, Rule 7 on the indictment and information was amended to require a dismissal to be stated on the amended information if the prosecuting attorney chooses not to pursue charges raised initially. The preliminary examination rule, Rule 5.1, was amended to require the magistrate to formally dismiss the charge if the defendant is discharged because no public offense has been committed or there is not sufficient cause to believe the defendant guilty. Both Rule 5 on the initial appearance and Rule 10 on the arraignment were amended to allow the use of contemporaneous audio or audiovisual transmission by reliable electronic means to conduct proceedings. In amendments reflecting the shift within the court system to electronic records management, Rule 20, which governs transfers from the county for plea and sentence, was changed to require the electronic transfer of case files. Meanwhile, Rule 21, which sets procedure when there is a transfer from the county for trial, was amended to delete requirements that files and records be transferred when the trial is held in another county. WINTER 2016 23