MINNESOTA RULES OF CRIMINAL PROCEDURE

Rule 5.02 Appointment of Public Defender

Subd. 1. Notice of Right to Counsel; Appointment of the Public Defender; Waiver of Counsel.

(1) Notice of Right to Counsel. If a defendant charged with a felony, gross misdemeanor, or misdemeanor punishable by incarceration appears without counsel, the court shall advise the defendant of the right to counsel and the appointment of the district public defender if the defendant has been determined to be financially unable to afford counsel. The court shall also advise the defendant of the right to request counsel at any stage of the proceedings.

(2) Appointment of the Public Defender. Upon the request of a defendant charged with a felony, gross misdemeanor, misdemeanor punishable by incarceration, exrtradition proceeding under section 629, or probation revocation proceeding, who is not represented by counsel and is financially unable to afford counsel, the judge or judicial officer shall appoint the public defender for the defendant. The court shall not appoint a district public defender to a defendant who is financially able to retain private counsel but refuses to do so.

(3) Waiver of Counsel, Misdemeanor. If a defendant appearing without counsel charged with a misdemeanor punishable upon conviction by incarceration does not request counsel and wishes to represent himself or herself, the defendant shall waive counsel in writing or on the record. The court shall not accept the waiver unless the court is satisfied that it is voluntary and has been made by the defendant with full knowledge and understanding of the defendant's rights. The court may appoint the district public defender for the limited purpose of advising and consulting with the defendant as to the waiver.

(4) Waiver of Counsel, Felony, Gross Misdemeanor. If a defendant appearing without counsel charged with a felony or gross misdemeanor does not request counsel and wishes to represent himself or herself, the court shall ensure that a voluntary and intelligent written waiver of the right to counsel is entered in the record. If the defendant refuses to sign the written waiver form, the waiver shall be made orally on the record. Prior to accepting any waiver, the trial court shall advise the defendant of the following: the nature of the charges, the statutory offenses included within the charges, the range of allowable punishments, that there may be defenses, that there may be mitigating circumstances, and all other facts essential to a broad understanding of the consequences of the waiver of the right to counsel, including the advantages and disadvantages of the decision to waive counsel. The court may appoint the district public defender for the limited purpose of advising and consulting with the defendant as to the waiver.

Subd. 2. Appointment of Advisory Counsel. The court may appoint "advisory counsel" to assist the accused who voluntarily and intelligently waives the right to counsel.

(1) If the court appoints advisory counsel because of its concerns about fairness of the process, the court shall so state on the record. The court shall, on the record then, advise the defendant and counsel so appointed that the defendant retains the right to decide when and how the defendant chooses to make use of advisory counsel and that the decision on what type of role advisory counsel is permitted may affect a later request to allow advisory counsel to assume full representation of the accused.

(2) If the court appoints advisory counsel due to its concerns about delays in completing the trial because of the potential disruption by the defendant or because of the complexity or length of the trial, the court shall so state on the record. The court shall on the record then advise the defendant and counsel so appointed that advisory counsel will assume full representation of the accused if (a) the defendant becomes so disruptive during the proceedings that such conduct is determined to constitute a waiver of the right of self representation or (b) the defendant requests advisory counsel to take over representation during the proceeding.

Advisory counsel must be present in the courtroom during all proceedings in the case and must be served with all documents which must be served upon an attorney of record.

Subd. 3. Standards for District Public Defense Eligibility. A defendant is financially unable to obtain counsel if:

(1) The defendant, or any dependent of the defendant who resides in the same household as the defendant, receives means-tested governmental benefits; or

(2) The defendant, through any combination of liquid assets and current income, would be unable to pay the reasonable costs charged by private counsel in that judicial district for a defense of the same matter.

Subd. 4. Financial Inquiry. An inquiry to determine financial eligibility of a defendant for the appointment of the district public defender shall be made whenever possible prior to the court appearance and by such persons as the court may direct. This inquiry may be combined with the pre-release investigation provided for in Rule 6.02, subd. 3. In no case shall the district public defender be required perform this inquiry or investigate the defendant’s assets or eligibility. The court has a duty to conduct a financial inquiry. The inquiry must include the following:

(1) the liquidity of real estate assets, including homestead;

(2) any assets that can readily be converted to cash or used to secure a debt;

(3) the value of all property transfers occurring on or after the date of the alleged offense;

(4) the determination of whether transfer of an asset is voidable as a fraudulent conveyance.

The burden is on the accused to to show that he or she is financially unable to afford counsel. Defendants who fail to provide the information necessary to determine eligibility shall be deemed ineligible.

Subd. 5. Partial Eligibility and Reimbursement. The ability to pay part of the cost of adequate representation at any time while the charges are pending against a defendant shall not preclude the appointment of the public defender for the defendant. The court, if after previously finding that the defendant is eligible for public defender services, determines that the defendant now has the ability to pay part of the costs, may require a defendant, to the extent able, to compensate the governmental unit charged with paying the expense of the appointed public defender.

Comment—Rule 5

Rule 5.03 Date of Rule 8 Appearance in District Court; Consolidation of Appearances Under Rule 5 and Rule 8

If the defendant is charged with a felony or gross misdemeanor and has not waived the right to a separate appearance under Rule 8 as provided in this rule, the judge or judicial officer shall set a date for such appearance before the district court having jurisdiction to try the offense charged in accordance with a schedule or other directive established by order of the district court, which appearance date shall not be later than fourteen (14) days after the defendant's initial appearance before such judge or judicial officer under Rule 5.

The defendant shall be informed of the time and place of such appearance and ordered to appear as scheduled. The time for appearance may be extended by the district court for good cause.

Notwithstanding any rule to the contrary, in felony and gross misdemeanor cases, the defendant may be permitted to waive the separate appearance otherwise required by this rule and Rule 8. Any such waiver shall be made either in writing or orally on the record in open court. If a separate appearance under Rule 8 is waived by the defendant, all of the functions and procedures provided for by both Rule 5 and Rule 8 shall take place at the one consolidated appearance.

Comment—Rule 5

Rule 5.04 Plea in Misdemeanor Cases

Subd. 1. Entry of Plea. When a valid complaint has been made and filed, or a brief statement entered on the record as authorized under Rule 4.02, subd. 5(3), the defendant shall be called upon to plead or be given time to plead. The arraignment shall be conducted in open court. A defendant may appear by counsel and a corporation shall appear by counsel or by a duly authorized officer.

Subd. 2. Guilty Plea; Offenses From Other Jurisdictions. If the defendant enters a plea of guilty, the presentencing and sentencing procedures provided by these rules shall be followed. Following a plea of guilty, the defendant may request permission to plead guilty to other misdemeanor offenses committed within the jurisdiction of other courts in the state pursuant to Rule 15.10.

Subd. 3. Not Guilty Plea and Jury Trial. If the defendant enters a plea of not guilty to a charge on which entitled to a jury trial, the defendant shall be asked to exercise or waive that right. The defendant may waive jury trial either personally in writing or orally on the record in open court. If the defendant fails to waive or demand a jury trial, a jury trial demand shall be entered in the record.

Subd. 4. Demand or Waiver of Evidentiary Hearing. If the defendant pleads not guilty and a notice of evidence and identification procedures has been given by the prosecution as required by Rule 7.01, the defendant and the prosecution shall each either waive or demand an evidentiary hearing as provided by Rule 12.04. Such demand or waiver may be made either orally on the record or in writing and shall be made at the first court appearance after the notice has been given by the prosecution.

Subd. 5. Special Appearances Abolished. Special appearances are abolished and any challenge to the personal jurisdiction of the court shall be decided as provided in Rule 10.02.

Comment—Rule 5

See comment following Rule 5.06 .

Rule 5.05 Bail or Release

The judge or judicial officer shall set and advise the defendant of the conditions under which the defendant may be released under these rules for appearance.

Comment—Rule 5

Rule 5.06 Record

Minutes of the proceedings shall be kept unless the judge or judicial officer directs that a verbatim record thereof shall be made, and provided that any plea of guilty to an offense punishable by incarceration shall comply with the requirements of Rule 13.05 and Rule 15.09.

.Comment—Rule 5.

Rule 5 prescribes the procedure upon the defendant's initial appearance before a judge or judicial officer following an arrest with or without a warrant under Rules 3 and 4.01 or in response to a summons under Rule 3 or a citation under Rule 4.02, subd. 2. In most misdemeanor cases, the initial appearance will also be the time of arraignment and, often, the time of disposition as well.

Rule 5.01 sets forth the statements and advice to be given to the defendant upon the initial court appearance. Similar provisions appear in ABA Standards, Pre-Trial Release, 4.3 (Approved Draft, 1968), F.R.Crim.P. 5(c), and ALI Model Code of Pre-Arraignment Procedure § 310.1(4)(a) (T.D. # 5, 1972).

Rule 5.01 requires the appointment of a qualified interpreter for a defendant handicapped in communication. The rule requires that a qualified interpreter assist such a defendant in all procedures contemplated by these rules. This appointment is mandated by Minn. Stat. § 611.32, subd. 1 (1992). A person handicapped in communication is someone who due to a hearing, speech or other communications disorder, or lack of skill in English, is not able to fully understand the judicial proceedings or charges, or is incapable of presenting or assisting in the presentation of a defense. The definition contained in the rule is the same as that contained in Minn. Stat. § 611.31 (1992). Minn. Stat. § 611.33 (1992) should be referred to for the definition of qualified interpreter.

Rule 5.01 requires that the defendant be provided with copies of the complaint and any supporting affidavits and a copy of the transcript of any supplemental testimony. Ordinarily, the facts showing probable cause will be set forth separately in or with the complaint or in supporting affidavits or both, but in the unusual case when supplemental testimony is taken, the defendant shall be provided with a copy of the transcript as soon as it is available. Of course, in misdemeanor cases and in designated gross misdemeanor cases as defined in Rule 1.04(b) where no complaint has been issued and prosecution is pursuant to a tab charge this requirement does not apply.

In misdemeanor cases this statement as to a defendant's rights may be combined with the questioning required under Rule 15.02 prior to acceptance of a guilty plea. In order to save time and avoid repetition, the judge or judicial officer may advise a number of defendants at the same time of these rights, but the statement must be recorded and each defendant upon approaching the court must be asked on the record whether the defendant has heard and understood the rights explained earlier.

The warning as to the defendant's right to counsel continues the requirements of Minn. Stat. §§ 611.15 and 630.10 (1971). (See St. Paul v. Whidby, 295 Minn. 129, 203 N.W.2d 823 (1972), recognizing that misdemeanors authorizing a sentence of incarceration are criminal offenses and criminal procedures must be followed.)

Rule 5.02 governs the appointment of the public defender for indigent defendants (See ABA Standards, Pre-Trial Release, 4.2 (Approved Draft, 1968).)

The prior rule reflected a policy decision that all indigent defendants charged with felony or gross misdemeanor offenses would have counsel appointed for them. While the prior rule did not reflect the right of the defendant to waive counsel in felony and gross misdemeanor cases, the comments to the rule did acknowledge the right of defendants to represent themselves. Faretta v. California, 422 U.S. 806 (1975). The current rule includes language which makes this right clear. The decision in Faretta v. California found that it was permissible for the state to appoint counsel over the defendant's objection, to assist and consult if requested to do so by the defendant. The revised rule also sets forth standards for appointing "advisory counsel" in cases where the defendant waives counsel and the court believes it is appropriate to appoint "advisory counsel".

This rule contains the requirement that the court advise defendants appearing without counsel of their right to counsel, Minn. Stat. § 611.15, and the right "at any time" to request the appointment of the public defender. Minn. Stat. §611.16.

Faretta v. California recognized the constitutional right of the accused in a criminal proceeding to voluntarily and intelligently waive the right to counsel and represent himself or herself. In ensuring a voluntary and intelligent waiver, the court must warn the defendant of the "dangers and disadvantages of self-representation." The rule provides that when a defendant wishes to waive the right to counsel, the court must ensure that the defendant makes a voluntary and intelligent waiver of counsel by conducting a penetrating and comprehensive examination of the defendant's understanding of the factors involved in this decision. The provision sets forth a minimum list of the factors to be considered. See Von Moltke v. Gillies, 332 U.S. 708 (1948).

Another way for the court to assure itself that the waiver of counsel is voluntary and intelligent is to appoint temporary counsel to advise and consult with the defendant as to the waiver. This is in accord with ABA Standards, Providing Defense Services, 5-7.3 (1980).

Minnesota law requires that a waiver of counsel be in writing unless the defendant refuses to sign the written waiver form. In that case a record of the waiver is permitted. Minn. Stat. §611.19. In practice, a Petition to Proceed As Pro Se Counsel may fulfill the dual requirements of providing the defendant with the information necessary to make a voluntary and intelligent waiver of the right to counsel as well as providing a written waiver. See Form 11. Also see Appendix C to Rule 15 for the Petition to Enter Plea of Guilty by Pro Se Defendant.

Faretta v. California also recognized that a state may, over the objection of the accused, appoint what has been called "standby counsel" to aid the accused if and when the accused requests help and to be available to represent the accused in the event termination of the defendant's self-representation is necessary because the defendant "deliberately engages in serious and obstructionist misconduct."

In most cases, the primary role of counsel appointed over the objection of the accused is fundamentally advisory. In fewer cases, the role of appointed counsel may be to take over representation of the defendant during trial either because of a request of the defendant because of the length or complexity of the trial, or because the defendant's disruptive behavior constituted a waiver of the right of self-representation. While Faretta refers to counsel taking representation upon termination of the right of self-representation, in most cases this is not the primary role of such counsel and may not be either feasible or desirable. The absolute control over the defense placed in the hands of the accused by Faretta may prevent appointed advisory counsel from being able to be ready to step in and continue the trial if the defendant is unable or unwilling to continue to represent himself or herself. The accused, not appointed counsel, controls the plan--or lack of plan--for the presentation of the defense. The term "standby counsel" is too broad a term to cover the role of appointed counsel in every case or even most cases where counsel is appointed over the objection of the defendant. Because the primary purpose of counsel appointed over the objection of the defendant is to help the accused understand and negotiate through the basic procedures of the trial and "to relieve the trial judge of the need to explain and enforce basic rules of [the] courtroom," counsel appointed over the objection of the accused may be more properly called "advisory counsel".

There appear to be two main reasons for appointing advisory counsel for defendants who wish to represent themselves: (1) the many concerns surrounding the fairness of a criminal process where lay people choose to represent themselves--to aid the court in fulfilling its responsibility for insuring a fair trial, to further the public interest in an orderly, rational trial, or if the court appoints advisory counsel to assist the pro se defendant--and (2) the concerns over the disruption of the criminal process prior to its completion caused by the removal of an unruly defendant or a request for counsel during a long or complicated trial.

These general reasons for the appointment of counsel to the pro se defendant suggest a natural expectation of the level of readiness of advisory counsel. If the court appoints advisory counsel as a safeguard to the fairness of the proceeding, it would not be expected that counsel would be asked to take over the representation of the defendant during the trial and counsel should not be expected and need not be prepared to take over representation should this be requested or become necessary. If this unexpected event occurred and a short recess of the proceeding were sufficient to allow counsel to take over representation, the court could enter that order. If the circumstances constituted a manifest injustice to continue with the trial, a mistrial could be granted and a date for a new trial, allowing counsel time to prepare, could be set. The court could also deny the request to allow counsel to take over representation if the circumstances would not make this feasible or practical.

If the court appoints advisory counsel because of the complexity of the case or the length of the trial or the possibility that the defendant may be removed from the trial because of disruptive behavior, advisory counsel must be expected to be prepared to take over as counsel in the middle of the trial so long as the interests of justice are served.

Whenever counsel is appointed over the defendant's objection, counsel's participation must not be allowed to destroy the jury's perception that the accused is representing himself or herself. In all proceedings, especially those before the jury, advisory counsel must respect the defendant's right to control the case and not interfere with it. The accused must authorize appointed counsel before the counsel can be involved, render impromptu advice, or ever appear before the court. If the accused does not wish appointed counsel to participate, counsel must simply attend the trial.

Even where appointed counsel is not expected to be ready to take over representation in the middle of the proceedings, it is appropriate and necessary that all advisory counsel be served with the same disclosure and discovery items as counsel of record so that counsel can at least be familiar with this information in acting in an advisory role. All counsel appointed for the pro se defendant must be served with the pleadings, motions, and discovery.

It is essential that at the outset the trial court explain to the accused and counsel appointed in these situations what choices the accused has and what the consequences of those choices may be later in the proceedings. In State v. Richards, 552 N.W.2d 197, 206 (Minn. 1996), the Supreme Court repeated the rule it set in State v. Richards, 463 N.W.2d 499 (Minn. 1990): the defendant's request for the "substitution of standby counsel (shall not be granted) unless, in the trial court's discretion, his request is timely and reasonable and reflects extraordinary circumstances." Trial courts should consider the progress of the trial, the readiness of standby counsel, and the possible disruption of the proceedings. Statement of the expectations of advisory counsel at the outset should make it clear to all concerned about what will happen should there be a change in the representation of the defendant during the proceeding.

A defendant appearing pro se with advisory counsel should be informed that the duties and costs of investigation, legal research, and other matters associated with litigating a criminal matter are the responsibility of the defendant and not advisory counsel. It should be made clear to the pro se defendant that advisory counsel is not a functionary of the defendant who can be directed to perform tasks by the defendant. A motion pursuant to Minn. Stat. §611.21 is available to seek funds for hiring investigators and expert witnesses.

Rule 5.02, subd. 3 prescribes the standard to be applied by the court in determining whether a defendant is financially eligible for the appointment of the public defender. This standard is based upon the standards adopted by the Minnesota Legislature effective July 1, 2003, in Minn. Stat. § 611.27 (Supp. 2003) except that the statute expressly prohibits the appointment of the public defender as advisory counsel. This rule also recognizes the limited resources of district public defenders.

Under part (1), the defendant is eligible for public defender representation if they receive a means-tested government benefit or if they have a dependent who resides in their household and who receives such benefits. A means-tested benefit is one based upon an income and/or assets test.

Under part (2), the defendant is eligible for public defender representation if their income and/or assets are insufficient for them to pay the reasonable costs of private representation in that judicial district for a case of the nature at issue.

It is strongly recommended that the district court maintain a list of attorneys who wish to have cases referred to them and who are willing to try to make financial arrangements with defendants to permit them to accept representation. A number of organizations, including the Hennepin and Ramsey County Bar Associations and the Minnesota Association of Criminal Defense Lawyers, maintain lists of private attorneys who will accept criminal defense cases at a fee rate which will be determined after consideration of the defendant's ability to pay. The existence of such a referral list may not, however, be a basis for failing to appoint counsel for a defendant who is financially eligible for public defender representation under Parts (1) or (2) of this rule.

To assist the court in deciding whether to appoint the public defender, Rule 5.02, subd. 4 provides that whenever possible a financial inquiry should be conducted before the defendant's appearance in court. Such an inquiry may be combined with the pre-release investigation provided for in Rule 6.02, subd. 3. The rule also emphasizes the court’s obligation to jealously guard the resources of district public defense and outlines the extent to which the court must go to determine district public defense eligibility in accordance with In re Stuart, 646 N.W.2d 520 (Minn. 2002). In order to avoid the creation of conflicts of interest and to focus limited public defender resources on client representation, the public defender shall not be permitted or required to participate in determining whether particular defendants are eligible for public defender representation.

Rule 5.02, subd. 5 provides that the ability of a defendant to pay part of the cost of adequate representation when charges are pending shall not preclude the court from appointing the public defender. This provision is included to make clear that the public defender can be appointed for the person of moderate means who would be subject to substantial financial hardship if forced to pay the full cost of adequate representation. In such circumstances the court may require the defendant to the extent able to compensate the governmental unit charged with paying the expense of the appointed public defender.

Rule 5.02, subd. 5 is in accord with ABA Standards, Providing Defense Services, 6.3 (Approved Draft, 1968) and with Minn. Stat. §611.20.

Under Rule 5.03, if the defendant is charged with a felony or gross misdemeanor, a date shall be fixed by the judge or judicial officer for the defendant's appearance in the district court under Rule 8, where the defendant will be arraigned upon the complaint or, where permitted, the tab charge (Rules 8.01, 12), and if a guilty plea is not entered, a date will be fixed by the district court (Rule 8.04) for the Omnibus Hearing provided for by Rule 11.

The date fixed by the judge or judicial officer (Rule 5.03) for the defendant's appearance before the district court under Rule 8 shall be not more than 14 days after the defendant's initial appearance (Rule 5), but the district court may extend the time for good cause (Rule 5.03). The judge or judicial officer shall set the date in accordance with a time schedule or other order or directive previously furnished or made by the district court (Rule 5.03).

In certain circumstances a separate appearance to fulfill the requirements of Rule 8 may serve very little purpose. Originally these rules required the appearance under Rule 5 to be in the county court and the appearance under Rule 8 to be in the district court. Now, both appearances are held in the district court. The additional time and judicial resources invested in a separate appearance under Rule 8 may yield little or no benefit. Therefore, Rule 5.03 permits the appearances required by Rule 5 and Rule 8 to be consolidated upon request of the defendant.

When the appearances are consolidated under Rule 5.03, all of the provisions in Rule 8 are applied to the consolidated hearing. This means that under Rule 8.04 the Omnibus Hearing provided for by Rule 11 must be scheduled for a date not later than 28 days after the consolidated hearing. This requirement is subject however to the power of the court under Rule 8.04(c) to extend the time for good cause related to the particular case upon motion of the defendant or the prosecution or upon the court's initiative. Also, the notice of evidence and identification procedures required by Rule 7.01 must be given at or before the consolidated hearing.

By Rule 5.04, after a complaint has been issued or a tab charge entered on the record as authorized under Rule 4.02, subd. 5(3), the defendant shall be arraigned in open court under Rule 5.04 or may be given time to plead. This is in accord with Minn. Stat. § 630.13 (1971). The defendant has an absolute right to appear by counsel to enter a plea of not guilty and set a trial date.

To the extent Minn. Stat. § 630.01 (1971) might require the permission of the court to make such an appearance by counsel, it is superseded. See also Rule 14.02, subd. 2 (plea of guilty by counsel); Rule 15.03, subd. 2 (petition to plead guilty); Rule 26.03, subd. 1(3) (defendant's presence at trial and sentencing); and Rule 27.03, subd. 2 (defendant's presence at sentencing). The requirement that the arraignment be conducted in open court is taken from F.R.Crim.P. 10 and follows Minn. Stat. § 630.01 (1971). The appearance of a corporation by counsel or an officer continues present Minnesota practice under Minn. Stat. § 630.16 (1971).

If the defendant pleads guilty in a misdemeanor case the procedure prescribed by Rule 15 shall be followed and thereafter the pre-sentencing and sentencing procedures provided by these rules shall be followed.

Following a plea of guilty a defendant or defense counsel under Rule 5.04, subd. 2 may request permission for the defendant to enter a plea of guilty to any other misdemeanor committed within the state which is under the jurisdiction of another court. The procedure for entering such pleas is set forth in Rule 15.10. Also see the comments on that rule. If the defendant has permission to enter the plea from the prosecuting attorney of the governmental unit authorized to prosecute the offense, then the court may accept the plea provided it is otherwise proper. Before accepting the plea, the defendant must be charged with the offense, but that could be done simply by a tab charge pursuant to Rule 4.02, subd. 5(3). By entering a plea under Rule 5.04, subd. 2 the defendant waives any right to object to the venue of the court which is accepting the plea. Following acceptance of the plea, the court has the power to sentence the defendant just as if it originally had jurisdiction over the offense. This rule was originally taken from ABA Standards, Pleas of Guilty, 1.2 (Approved Draft, 1968) and permits a defendant to dispose of a number of charges pending against the defendant throughout the state without the necessity and expense of being taken to each court personally while in custody. If any fines are collected upon entry of a guilty plea to an offense arising in another jurisdiction, the money is to be forwarded to the clerk of the court which originally had jurisdiction over the offense. Disbursement of such fines by the clerk of the court of original jurisdiction shall be as if the plea had actually been entered and the fine collected in the court of original jurisdiction. As to disbursement of such fines see Minn. Stat. §§ 487.31 and 487.33, subds. 1 and 5 (County Courts); 488A.03, subd. 6(a) and (d) and 488A.03, subd. 11(d) (Hennepin County Municipal Court); and 488A.20, subd. 4 (Ramsey County Municipal Court).

A defendant pleading not guilty who is entitled to a jury trial shall be asked under Rule 5.04, subd. 3 to exercise or waive that right. The defendant with the approval of the court has an absolute right to waive a jury trial under Rules 5.04, subd. 3 and 26.01, subd. 1(2)(a) in a misdemeanor case. A prosecutor who objects to the judge selected to try the case may file a notice to remove the judge. Rule 26.03, subd. 13; State v. Kraska, 294 Minn. 540, 201 N.W.2d 742 (1972). See also Rule 26.01, subd. 1(2)(b) as to waiver of jury trial when there is prejudicial publicity and Rule 26.01, subd. 1(3) as to withdrawal of the waiver. Rule 5.04, subd. 3 permits a defendant to waive a jury trial either in writing or orally in open court on the record. This is contrary to Minn. Stat.§ 631.01 which permitted only a written waiver. See Rule 26.01(1) as to a misdemeanor defendant's right to a jury trial and Rule 6.06 as to the time within which a trial must be held on a misdemeanor charge.

Under Rule 5.04, subd. 4 if the defendant pleads not guilty in a misdemeanor case and the prosecution has given the notice of evidence and identification prescribed by Rule 7.01, then both the defendant and the prosecution shall either waive or demand a Rasmussen (State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 141 N.W.2d 3 (1965)) hearing. The waiver or demand is necessary only in cases where a jury trial is to be held since the notice is not required under Rule 7.01 if no jury trial is to be held in a misdemeanor case. Under Rule 7.01 the notice must be given at least 7 days before trial or by the conclusion of the pretrial conference if held. The waiver or demand shall be made at the first court appearance after notice is given and if given during a court appearance the waiver or demand should be made at that appearance. If no court appearance intervenes between the giving of notice and the trial, then waiver or demand shall be made immediately before trial. The waiver or demand of a hearing may be made either in writing or orally on the record. See Rule 12.04, subd. 3 as to the time of any evidentiary hearing demanded.

Rule 5.04, subd. 5 abolishes special appearances in misdemeanor cases. The purpose of such an appearance in the past has been to avoid waiver of a challenge to the personal jurisdiction of the court. Rules 10.02 and 17.06, subd. 4(1), however, reverse prior case law and provide a procedure for challenging the personal jurisdiction of the court after a complaint has been issued and a not guilty plea entered. See the Comments to Rule 10.02 as to this procedure.

By Rule 5.05 the judge or judicial officer shall set the conditions for the defendant's release under Rule 6.02. Under Rule 5.06 minutes of the proceedings at an arraignment or first appearance in court must be kept unless the judge or judicial officer directs that a verbatim record shall be made. The method of taking the minutes is within the discretion of the court. Where a guilty plea is entered to a misdemeanor offense punishable by incarceration, however, Rules 13.05 and 15.03 require either that a verbatim record be made or a petition to plead guilty be filed. This requirement is prescribed in light of State v. Casarez, 295 Minn. 534, 203 N.W.2d 406 (1973) where the court applied the holding of Boykin v. Alabama, 395 U.S. 238 (1969) to misdemeanor cases saying, "A guilty plea must appear on the record to have been voluntarily and intelligently made. If not, the plea must be vacated."

From the time of the defendant's initial appearance in court under Rule 5 until the Omnibus Hearing (Rule 11), the following schedule of events shall take place in felony and gross misdemeanor cases in which the appearances under Rule 5 and Rule 8 have not been consolidated pursuant to Rule 5.03:

1. Defendant's Initial Appearance before the court under Rule 5.

2. Service of Rasmussen (State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 141 N.W.2d 3 (1965)) notice (Rule 7.01) on the defendant on or before the date of the appearance in the district court under Rule 8.

3. Appearance in the district court under Rule 8 (within 14 days after the initial appearance under Rule 5 unless the appearances under Rules 5 and 8 are consolidated pursuant to Rule 5.03).

4. Service of Spreigl (State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965)), State v. Billstrom, 276 Minn. 174, 149 N.W.2d 281 (1967) notice on the defendant (Rule 7.02) on or before the date of the Omnibus Hearing (Rule 11).

5. Completion of discovery required of prosecution and defendant without order of court (Rules 9.01, subd. 1; 9.02, subd. 1) before the Omnibus Hearing (Rule 7.03).

6. Service of pretrial motions (Rules 10, 9.01, subd. 2; 9.02, subd. 2; 9.03, subd. 3; 18.02, subd. 2; 17.03, subd. 3 and subd. 4; 17.06; 20.01, subd. 2; 20.03, subd. 1) to be heard at the Omnibus Hearing (3 days before the Omnibus Hearing (Rule 10.04, subd. 1).)

7. Omnibus Hearing under Rule 11 within 28 days after defendant's appearance in the district court under Rule 8 and within 42 days after defendant's initial appearance under Rule 5 when the Rule 5 and Rule 8 appearances are not consolidated.

From the time of the defendant's initial appearance in court until the trial, the following schedule of events shall take place in misdemeanor cases:

1. Defendant's initial appearance (Rule 5).

2. Arraignment (Rule 5).

3. Notice of challenge to jurisdiction of the court following issuance of complaint and entry of not guilty plea. Notice must be given within 7 days after entry of not guilty plea (Rule 10.02).

4. Service of Rasmussen notice (Rule 7.01) on or before the pretrial conference if held under Rule 12.01, or seven days before trial if no such conference is held.

5. Waiver or demand of Rasmussen hearing by prosecution and defendant at first court appearance following service of the Rasmussen notice (Rule 5.04, subd. 6).

6. Service of Spreigl (State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965), State v. Billstrom, 276 Minn. 174, 149 N.W.2d 281 (1967)) notice on the defendant (Rule 7.02) on or before the date of the pretrial conference (Rule 5.04, subd. 6) if held or at least seven days before trial if no such conference is held.

7. Service of pretrial motions (Rules 10; 17.03, subds. 3 and 4; 17.06; 17.06, subd. 3 and motions to suspend criminal proceedings for mental incompetency and motions to disclose medical reports under Rule 20.04) at least three days before the pretrial conference or three days before trial if no pretrial conference is held, but no more than 30 days after the arraignment unless the court extends the time for good cause (Rule 10.04).

8. Pretrial conference may be held at such time as the court may order (Rule 12.01).

9. Pretrial motions heard at pretrial conference or just before trial if no such conference is held (Rule 10.04, subd. 2).

10. Discovery may be conducted at any time before trial as permitted by Rule 7.03.

11. Rasmussen hearing held immediately prior to jury trial unless otherwise ordered by the court for good cause and upon a trial to the court the hearing may be held as part of the trial (Rule 12.04, subd. 3).

12. Trial to be held within 60 days from the date of demand or within 10 days of demand if the defendant is in custody.

Rule 6. Pretrial Release

Rule 6.01 Release on Citation by Law Enforcement Officer Acting Without Warrant

Subd. 1. Mandatory Issuance of Citation.

(1) For Misdemeanors.

(a) By Arresting Officers. Law enforcement officers acting without a warrant, who have decided to proceed with prosecution, shall issue citations to persons subject to lawful arrest for misdemeanors, unless it reasonably appears to the officer that arrest or detention is necessary to prevent bodily harm to the accused or another or further criminal conduct, or that there is a substantial likelihood that the accused will fail to respond to a citation. The citation may be issued in lieu of an arrest, or if an arrest has been made, in lieu of continued detention. If the defendant is detained, the officer shall report to the court the reasons for the detention. Ordinarily, for misdemeanors not punishable by incarceration, a citation shall be issued.

(b) At Place of Detention. When a person arrested without a warrant for a misdemeanor or misdemeanors, is brought to a police station or county jail, the officer in charge of the police station or the county sheriff in charge of the jail or an officer designated by the sheriff shall issue a citation in lieu of continued detention unless it reasonably appears to the officer that detention is necessary to prevent bodily harm to the accused or another or further criminal conduct or that there is a substantial likelihood that the accused will fail to respond to a citation. If the defendant is detained, the officer in charge shall report to the court the reasons for the detention. Provided, however, that for misdemeanors not punishable by incarceration, a citation shall be issued.

(2) For Misdemeanors, Gross Misdemeanors and Felonies When Ordered by Prosecuting Attorney or Judge. An arresting officer acting without a warrant or the officer in charge of a police station or other authorized place of detention to which a person arrested without a warrant has been brought shall issue a citation in lieu of continued detention if so ordered by the prosecuting attorney or by the judge of a district court or by any person designated by the court to perform that function.

Subd. 2. Permissive Authority to Issue Citations for Gross Misdemeanors and Felonies. When a law enforcement officer acting without a warrant is entitled to make an arrest for a felony or gross misdemeanor or a person arrested without a warrant for a felony or gross misdemeanor is brought to a police station or county jail, the officer in charge of the police station or the county sheriff in charge of the jail or an officer designated by the sheriff may issue a citation in lieu of arrest or in lieu of continued detention if an arrest has been made, unless it reasonably appears to the officer that arrest or detention is necessary to prevent bodily harm to the accused or another or further criminal conduct or that the accused may fail to appear in response to the citation.

Subd. 3. Form of Citation. A citation shall direct the accused to appear before a designated court or violations bureau at a specified time and place or to contact the court or violations bureau to schedule an appearance. The citation shall state that if the defendant fails to appear at or contact the court or violations bureau as directed in response to the citation, a warrant of arrest may issue. A summons or warrant issued because of a defendant's failure to respond to a citation may be based upon sworn facts establishing probable cause as set forth in or with the citation and attached to the complaint.

Subd. 4. Lawful Searches. The issuance of a citation does not affect a law enforcement officer's authority to conduct an otherwise lawful search.

Subd. 5. Persons in Need of Care. Notwithstanding the issuance of a citation, a law enforcement officer may take the cited person to an appropriate medical facility if that person appears mentally or physically incapable of self care.

Comment—Rule 6

Rule 6.02 Release by Judge, Judicial Officer or Court

Subd. 1. Conditions of Release. Any person charged with an offense shall be released without bail pending the first court appearance when ordered by the prosecuting attorney, the judge of a district court, or by any person designated by the court to perform that function. Upon appearance before a judge, judicial officer, or court, a person so charged shall be ordered released pending trial or hearing on personal recognizance or on order to appear or upon the execution of an unsecured appearance bond in a specified amount, unless the court, judge or judicial officer determines, in the exercise of discretion, that such a release will be inimical of public safety or will not reasonably assure the appearance of the person as required. When such a determination is made, the court, judge or judicial officer shall, either in lieu of or in addition to the above methods of release, impose the first of the following conditions of release which will reasonably assure the appearance of the person for trial or hearing, or when otherwise required, or, if no single condition gives that assurance, any combination of the following conditions:

(a) Place the person in the care and supervision of a designated person or organization agreeing to supervise the person;

(b) Place restrictions on the travel, association or place of abode during the period of release;

(c) Require the execution of an appearance bond in an amount set by the court with sufficient solvent sureties, or the deposit of cash or other sufficient security in lieu thereof; or

(d) Impose any other condition deemed reasonably necessary to assure appearance as required, including a condition requiring that the person return to custody after specified hours.

If such conditions of release, aside from an appearance bond, are imposed by the court, the court shall issue a written order containing those conditions of release. A copy of any such order shall be provided to the defendant and immediately to the law enforcement agency that has or had custody of the defendant. Such law enforcement agency shall also be provided by the court with any available information on the location of the named victim.

In any event, the court shall also fix the amount of money bail without other conditions upon which the defendant may obtain release either by posting cash or by sufficient sureties.

The defendant's release shall be conditioned on appearance at trial or hearing, including the Omnibus Hearing, evidentiary hearing and the pretrial conference prescribed by these rules, or at the taking of any deposition that may be ordered by the court.

Subd. 2. Determining Factors. In determining which conditions of release will reasonably assure such appearance, the judge, judicial officer or court shall on the basis of available information, take into account the nature and circumstances of the offense charged, the weight of the evidence against the accused, the accused's family ties, employment, financial resources, character and mental condition, length of residence in the community, record of convictions, record of appearance at court proceedings or flight to avoid prosecution, and the safety of any other person or of the community.

Subd. 3. Pre-Release Investigation. In order to acquire the information required for determining the conditions of release, an investigation into the accused's background may be made prior to or contemporaneously with the defendant's appearance before the court, judge or judicial officer. The court's probation service or other qualified facility available to the court may be directed to conduct the investigation. Any information obtained from the defendant in response to an inquiry during the course of the investigation and any evidence derived from such information, shall not be used against the defendant at trial. This shall not preclude the use of evidence obtained by other independent investigation.

Subd. 4. Review of Conditions of Release. Upon motion, the court before which the case is pending shall review the conditions of release.

Comment—Rule 6

Rule 6.03. Violation of Conditions of Release

Subd. 1a. Summons. Upon an application of the prosecuting attorney, court services or probation officer alleging probable cause that a defendant has violated the conditions of release, the judge, judicial officer or court that released the defendant may issue a summons directing the defendant to appear before such judge, judicial officer or court at a specified time. A summons shall be issued instead of a warrant unless a warrant is authorized under subdivision 1b of this rule.

Subd. 1b. Warrant. Upon application of the prosecuting attorney, court services or probation officer alleging probable cause that a defendant has violated the conditions of release, the judge, judicial officer or court that released the defendant may issue a warrant instead of a summons if it reasonably appears that there is a substantial likelihood that the defendant will fail to respond to a summons, or that the continued release of the defendant will endanger the safety of any person or the community, or that the location of the defendant is unknown. The warrant shall direct that the defendant be arrested and taken forthwith before such judge, judicial officer or court.

Subd. 2. Arrest Without Warrant. When a law enforcement officer has probable cause to believe that a released defendant has violated the conditions of release and it reasonably appears that the defendant’s continued release will endanger the safety of any person or the community, the officer may arrest the defendant and take the defendant forthwith before a judge, judicial officer or court if it is impracticable to secure a warrant or summons as provided in this rule.

Subd. 3. Hearing. After hearing and upon finding that the defendant has violated conditions imposed on release, the judge, judicial officer or court shall continue the release upon the same conditions or impose different or additional conditions for the defendant’s possible release as provided for in Rule 6.02, subd. 1.

Subd. 4. Commission of Crime. When it is shown that a complaint has been filed or indictment returned charging a defendant with the commission of a crime while released pending adjudication of a prior charge, the court with jurisdiction over the prior charge may, after notice and hearing, review and revise the conditions of possible release as provided for in Rule 6.02, subd. 1.

Comment—Rule 6

Rule 6.04 Forfeiture

The procedure for forfeiture of an appearance bond shall be as provided by the law.

Comment—Rule 6

Rule 6.05 Supervision of Detention

The trial court shall exercise supervision over the detention of defendants within the court's jurisdiction for the purpose of eliminating all unnecessary detention. The officer in charge of a detention facility shall make at least bi-weekly reports to the prosecuting attorney and to the court having jurisdiction over the prisoners listing each defendant who has been held in custody pending criminal charges, arraignment, trial, sentence or revocation of probation or parole for a period in excess of ten (10) days in felony and gross misdemeanor cases, and in excess of two (2) days in misdemeanor cases.

Comment—Rule 6

Rule 6.06 Trial Date in Misdemeanor Cases

A defendant shall be tried as soon as possible after entry of a not guilty plea. On demand made in writing or orally on the record by the prosecuting attorney or the defendant, the trial shall be commenced within sixty (60) days from the date of the demand unless good cause is shown upon the prosecuting attorney's or the defendant's motion or upon the court's initiative why the defendant should not be brought to trial within that period. The time period shall not begin to run earlier than the date of the not guilty plea. Where the defendant is in custody, trial shall be commenced within ten (10) days of demand and if not so commenced, the defendant shall be released subject to such nonmonetary release conditions as may be required by the court under Rule 6.02, subd. 1.

Comment—Rule 6

In misdemeanor cases a citation ordinarily must be issued if the misdemeanor charged is not punishable by incarceration. It is the opinion of the Advisory Committee that where possible, a person should not be taken into custody for an offense for which the person could not be incarcerated even if found guilty.

Rule 6.01 adopts the policy expressed in ABA Standards, Pre-Trial Release, 2.1 (Approved Draft, 1968) favoring the issuance of citations in lieu of arrest or of continued custody after an arrest by an officer acting without a warrant.

Rule 6.01, subd. 1(1)(a) and (b) make it mandatory upon the arresting or detaining officer and officer-in-charge of the stationhouse to issue a citation to any person who is subject to lawful arrest without a warrant for misdemeanors, including ordinance violations, or who has been arrested without a warrant for those offenses, unless it reasonably appears to the officer that arrest or detention is necessary to prevent bodily harm to the accused or another or to prevent further criminal conduct, or that there is a substantial likelihood that the accused will fail to respond to a citation. The uniform traffic ticket may be used for this purpose. Minn. Stat. § 169.99 (1971).

The initial determination of whether to issue a citation is to be made by the arresting or detaining officer in the field from the information available on the spot. If that officer decides not to issue a citation, the officer-in-charge of the stationhouse will then make a determination from all the information that may then be available, including any additional information disclosed by further interrogation and investigation.

In making their determination of whether to issue a citation, the officers may take into account the defendant's place and length of residence, family relationships, references, present and past employment, criminal record, past history of response to criminal process, and such facts as have a bearing on the likelihood of harmful or criminal conduct. (See ABA Standards, Pre-Trial Release 2.2, 2.3 (Approved Draft, 1968).)

By Rule 6.01, subd. 1(1), if a citation is not issued and an arrest is made, the officer shall report to the court the reasons for not issuing it, but the failure to issue a citation is not jurisdictional. The reasons for failing to issue a citation should be specified particularly for the defendant involved. It is not sufficient to simply use a checklist or only the words of the rule to justify the failure to issue a citation. Under these rules an arrest for a misdemeanor should be considered the exception rather than the normal practice.

Under present Minnesota statutory law (Minn. Stat. §§ 492.01 to 492.06, 487.28 (1971)), citations may be issued for traffic and specified ordinance violations for which a traffic and ordinance violations bureau has been established. Traffic tickets for traffic violations may be issued under Minn. Stat. § 169.91 (1971). Rule 6.01, subd. 1 extends the authority to issue citations for all misdemeanors and ordinance violations and makes it mandatory unless it reasonably appears to the arresting or detaining officer or officer-in-charge of the stationhouse that detention is necessary to prevent harmful or criminal conduct or that there is substantial likelihood that the defendant will not appear in response to a citation.

Rule 6.01, subd. 1(2) requires that a citation be issued for any offense whenever ordered by the prosecuting attorney or by a district court judge.

Rule 6.01, subd. 2 gives the officer-in-charge of the stationhouse permissive authority to issue citations for gross misdemeanors and felonies unless it reasonably appears that detention is necessary to prevent harmful or criminal conduct or that the defendant may not appear in response to a citation. (This follows in substance the recommendation of ABA Standards, Pre-Trial Release 2.3(a) (Approved Draft, 1968).)

The form of citation prescribed by Rule 6.01, subd. 3 follows ABA Standards, Pre-Trial Release, 1.4(a) (Approved Draft, 1968), except that the provision for a written promise to appear has been eliminated. It is the belief of the Advisory Committee that requiring a written promise to appear will add very little additional assurance that the defendant will appear and may cause an unnecessary confrontation between the defendant and the law enforcement officer. If it reasonably appears to the law enforcement officer that there is a substantial likelihood that the accused will fail to respond to the citation, an arrest may be made. If the defendant does not respond to the citation as directed and a summons or warrant is necessary, the facts establishing probable cause need not be set forth separately in the complaint as is otherwise required by Rule 2.01. Rather, the citation may be attached to the complaint which is then sworn to by the complainant. This is in accord with the current practice in many courts. If such a complaint is issued the defendant still retains the right under Rule 4.02, subd. 5(3) to demand a complaint that complies with the requirements of Rule 2.01.

Rule 6.01, subd. 4 that the issuance of a citation does not prevent or affect an otherwise lawful search adopts ABA Standards, Pre-Trial Release 2.4 (Approved Draft, 1968).

Rule 6.01, subd. 5 authorizing an officer who issues a citation to take the accused to a medical facility adopts ABA Standards, Pre-Trial Release 2.5 (Approved Draft, 1968). Rule 6.01, subd. 5 is intended merely to stress that the issuance of a citation in lieu of a custodial arrest or continued detention does not affect the statutory rights of a law enforcement officer to transport a person in need of care to an appropriate medical facility. The extent of a law enforcement officer's powers to transport a person for such purposes will still be governed by statute and is neither expanded nor contracted by Rule 6.01, subd. 5. See, e.g., Minn. Stat. § 609.06(8) regarding the right to use reasonable force, in certain situations, toward mentally ill or mentally defective persons and Minn. Stat. § 253A.04, subd. 2 governing the right of a health or peace officer to transport mentally ill or intoxicated persons to various places for care.

These rules do not prescribe the consequences of a failure to obey a citation. The remedy available is the issuance of a warrant or summons upon a complaint.

These rules do not require the adoption of a bail schedule. The purpose of these rules is to assure that whenever reasonably possible defendant will be released without bail. Any bail schedule adopted pursuant to Minn. Stat. § 629.71 (1971) should be applied only in those cases where the defendant would not otherwise be released without bail or upon issuance of a citation under these rules. The maximum cash bail which can be required for misdemeanors will continue to be twice the highest possible cash fine upon conviction as prescribed by Minn. Stat. § 629.47 (1971).

Rule 6.02, subd. 1 specifying the conditions of release that may be imposed upon a defendant at the first appearance before a judge, judicial officer, or court (Rule 5.05, See also Rules 6.02, subd. 4, 19.05) is taken from the Bail Reform Act of 1966, 18 U.S.C. §§ 3141- 3152, and in general follows ABA Standards, Pre-Trial Release 5.1, 5.3 (Approved Draft, 1968). If conditions of release are endorsed on the warrant (Rule 3.02, subd. 1), the defendant should be released on meeting those conditions.

Rule 6.02, subd. 1 substantially follows the language of § 3146(a). The rule directs that the defendant shall be released on personal recognizance, or on order to appear, or on the execution of an unsecured appearance bond unless the judge or judicial officer determines, in the exercise of discretion, that release by one of those methods will not reasonably assure the defendant's appearance.

Release on "personal recognizance" is a release without bail upon defendant's written promise to appear at appropriate times. (See ABA Standards, Pre-Trial Release 1.4(d) (Approved Draft, 1968).) An "Order to Appear" is an order issued by the court releasing the defendant from custody or continuing the defendant at large pending disposition of the case, but requiring the defendant to appear in court or in some other place at all appropriate times. (See ABA Standards, Pre-Trial Release, 1.4(c) (Approved Draft, 1968).)

If the court determines that release on personal recognizance, order to appear, or on an unsecured appearance bond will be inimical of public safety or will not reasonably secure the defendant's appearance, the court shall in lieu of or in addition to those methods of release impose the first or any combination of the four conditions specified in Rule 6.02, subd. 1 that will assure appearance.

Basically these conditions are taken from 18 U.S.C. § 3146 and ABA Standards, Pre-Trial Release, 5.2, 5.3 (Approved Draft, 1968). They emphasize that the conditions of release should proceed from the least restrictive to the ultimate imposition of cash bail depending on the circumstances in each case. Release on monetary conditions should be reduced to minimal proportions. It should be required only in cases in which no other conditions will reasonably insure the defendant's appearance. When monetary conditions are imposed, bail should be set at the lowest level necessary to ensure the defendant's reappearance.

Rule 341(g)(2) of the Uniform Rules of Criminal Procedure (1987) and Standard 10-5.3(d) of the American Bar Association Standards for Criminal Justice (1985) provide for release upon posting of ten percent of the face value of an unsecured bond and upon posting of a secured bond by an uncompensated surety. Although Rule 6.02 does not expressly authorize these options, the rule is broad enough to permit the court to set such conditions of release in an unusual case. If the ten percent cash option is authorized by the trial court, it should be in lieu of, not in addition to, an unsecured bond, because there is generally no reasonable expectation of collecting on the unsecured bond and the public should not be deluded into thinking it will be collected. The judge should consider the availability of a reliable person, to help assure the appearance of the defendant. If cash bail is deposited with the court it is deemed to be the property of the defendant pursuant to Minn. Stat. § 629.53 (1993) and according to that statute the court may apply the deposit to any fine or restitution imposed.

For certain driving while intoxicated prosecutions under Minn. Stat. § 169.121 where the defendant has prior convictions under that or related statutes, the court may impose the conditions of release set forth in Minn. Stat. § 169.121, subd. 1c (1997). Those conditions could include alcohol testing and impoundment of license plates. However, Rule 6.02 subd. 1 requires that even though the court sets conditions other than money bail upon which the defendant may be released, or even though the court prescribes other conditions in addition to money bail, the court shall also fix the amount of money bail (secured by cash, property, or qualified sureties) without any other conditions upon which the defendant may obtain release. The Advisory Committee was of the opinion that this is required by the defendant's constitutional right to bail. Minn. Const. Art. 1, § 7 makes all persons bailable by sufficient sureties for all offenses. It would violate this constitutional provision for the court to require that the monetary bail could be satisfied only by a cash deposit. The defendant must also be given the option of satisfying the monetary bail by sufficient sureties. State v. Brooks, 604 N.W.2d 345 (Minn. 2000).

If the court sets conditions of release, aside from an appearance bond, then the court must issue a written order stating those conditions. Any such written order should be issued promptly and the defendant's release should not be unnecessarily delayed. In addition to providing a copy of any such order to the defendant, the court must immediately provide it to the law enforcement agency that has or had custody of the defendant along with information about the named victim's whereabouts. This provision for a written order is in accord with Minn. Stat. § 629.715 (1997) which concerns conditions of release for defendants charged with crimes against persons. Such written orders are required because it is important that the defendant, as well as other concerned persons and law enforcement officers, know precisely what conditions govern the defendant's release.

In connection with the setting of bail or other conditions of release, see Minn. Stat. § 629.72, subd. 7 and Minn. Stat. § 629.725 as to the duty of the court to provide notice of a hearing on the release of the defendant from pretrial detention in domestic abuse, harassment or crimes of violence cases. Also see Minn. Stat. § 629.72, subd. 6 and Minn. Stat. § 629.73 as to the duty of the law enforcement agency having custody of the defendant in such cases to provide notice of the defendant's impending release.

Under Rule 6.02, subd. 1, defendant's release, in whatever form, shall be conditioned on appearance at trial or hearing, including the Omnibus Hearing under Rule 11, and at the taking of depositions under Rule 21.01.

Rule 6.02, subd. 2 enumerates the factors that a court shall take into account in determining the conditions of release (including personal recognizance, order to appear, or unsecured bond) that will reasonably assure the defendant's appearance. This rule follows the language of 18 U.S.C. § 3146(b) and ABA Standards, Pre-Trial Release, 5.1 (Approved Draft, 1968). It also permits the court to consider the safety of any other person or the community in determining the conditions of release to be imposed.

Recommendation 5, concerning sexual assault, in the Final Report of the Minnesota Supreme Court Task Force on Gender Fairness in the Courts, 15 Wm.Mitchell L.Rev. 827 (1989), states that "Minnesota judges should not distinguish in setting bail, conditions of release, or sentencing in non-familial criminal sexual conduct cases on the basis of whether the victim and defendant were acquainted." This prohibition should be applied in setting bail in other cases as well.

Rule 6.02, subd. 3 authorizing a pre-release investigation to obtain the necessary information for making the release decision is in accord with ABA Standards, Pre-Trial Release, 4.5 (Approved Draft, 1968).

Under Rule 6.02, subd. 4 the court which initially set conditions of release may on motion re-examine them if the case is still pending before that court, and may continue or revise the conditions in accordance with Rule 6.02, subds. 1 and 2. If the case is not pending before that court, the conditions of release may on motion be reviewed and continued or revised under the provisions of Rule 6.02, subds. 1 and 2 by the court before which the case is then pending. This is generally in accord with 18 U.S.C. § 3147(a) and ABA Standards, Pre-Trial Release, 5.9(b) (Approved Draft, 1968).

NOTE: The rule does not cover appeal of the release decision nor does it include release following a conviction. Appeal of the release decision is permitted under Rules 28 and 29. These rules also set standards and procedures for the release of a defendant following conviction.

Rule 6.03 prescribes the procedures to be followed upon violation of conditions of release. The rule is substantially in accord with the ABA Standards, Pre-Trial Release, 10-5.6 (Approved Draft, 2002), except that by Rule 6.03, subd. 3, the court is not authorized to revoke the defendant's release without setting bail because such action is not permitted under Minn. Const. Art. 1, § 5. The court must continue or revise the release conditions, governed by the considerations set forth in Rule 6.02, subds. 1 and 2. Under those rules, the court may increase the defendant's bail. If the defendant is unable to post the increased bail or to meet alternative conditions of release, the defendant may be kept in custody. Also, Rule 6.03 requires the issuance of a summons rather than a warrant under circumstances similar to those required under Rule 3.01. Rule 6.03, subd. 2, permits a warrantless arrest for violating conditions of release if it reasonably appears that the defendant’s continued release will endanger the safety of any person or the community, but only if it is impracticable to secure a warrant or summons as provided by the rule. Rule 6.03, subd. 3, requires only an informal hearing and does not require a showing of willful default, but leaves it to the discretion of the court to determine under all of the circumstances whether to continue or revise the conditions of possible release.

There are no provisions similar to Rule 6.03 in existing Minnesota statutory law except Minn. Stat. § 629.58 (1971) which provides that if a defendant fails to perform the conditions of a recognizance, process shall be issued against the persons bound thereby. Rule 6.03, subds. 1 and 2 take the place of that statute.

Minn. Stat. § 629.63 (1971) providing for surrender of the defendant by the surety on the defendant's bond is not affected by Rule 6.03. To the extent that it is inconsistent with Rule 6.03 and Rule 6.02, subds. 1 and 2, however, Minn. Stat. § 629.64, requiring that in the event a defendant is surrendered by such surety money bail shall be set, is superseded.

Rule 6.03, subd. 4 follows in substance ABA Standards, Pre-Trial Release, 5.8 (Approved Draft, 1968). The rule provides for a review of release conditions when the defendant has been subsequently charged by complaint or indictment with a crime (other than that upon which initially released). The rule provides that the court with jurisdiction over the prior charge shall review the release conditions upon that charge and may continue or revise them (governed by the considerations set forth in Rule 6.02, subds. 1 and 2).

Rule 6.04 continues the existing procedures for forfeiture of an appearance bond (Minn. Stat. §§ 629.48, 629.58-60 (1971)).

Rule 6.05 providing for the trial court's supervision and review--on the court's own motion--of the detention of defendants under the court's jurisdiction, is in accord with ABA Standards, Pre-Trial Release, 5.9(c) (Approved Draft, 1968).

Rule 6.06 provides that in misdemeanor cases a defendant shall be brought to trial within 60 days after demand therefor is made by the prosecuting attorney or defendant, unless good cause is shown for a delay, but regardless of a demand the defendant shall be tried as soon as possible. The trial may be postponed upon request of the prosecuting attorney or the defendant, or upon the court's initiative. Good cause for the delay does not include court calendar congestion unless exceptional circumstances exist. As to sanctions for violation of these speedy trial provisions see State v. Kasper, 411 N.W.2d 182 (Minn.1987) and State v. Friberg, 435 N.W.2d 509 (Minn.1989). In misdemeanor cases Rule 6.06 supersedes Minn. Stat. § 611.04 (1971) which required the defendant to be brought to trial at the next term of court. As to the right to a speedy trial generally, see the comments to Rule 11.10.

Rule 7. Notice by Prosecuting Attorney of Evidence and Identification Procedures; Completion of Discovery

Rule 7.01 Notice of Evidence and Identification Procedures

In any case where a jury trial is to be held, when the prosecution has (1) any evidence against the defendant obtained as a result of a search, search and seizure, wiretapping, or any form of electronic or mechanical eavesdropping; (2) any confessions, admissions or statements in the nature of confessions made by the defendant; (3) any evidence against the defendant discovered as a result of confessions, admissions or statements in the nature of confessions made by the defendant; or (4) when in the investigation of the case against the defendant, any identification procedures were followed, including but not limited to lineups or other observations of the defendant and the exhibition of photographs of the defendant or of any other persons, the prosecuting attorney shall notify the defendant or defense counsel of such evidence and identification procedures. In felony and gross misdemeanor cases notice shall be given in writing on or before the date set for the defendant's initial appearance in the district court as provided by Rule 5.03. In misdemeanor cases, notice shall be given either in writing or orally on the record in court on or before the date set for the defendant's pretrial conference if one is scheduled or seven (7) days before trial if no pretrial conference is to be held.

Such written notice may be given either personally or by ordinary mail to the defendant's or defense counsel's last known residential or business address or by leaving it at such address with a person of suitable age and discretion then residing or working there.

Comment—Rule 7

See comment following Rule 7.03.

Rule 7.02 Notice of Additional Offenses

The prosecuting attorney shall notify the defendant or defense counsel in writing of any additional offenses, the evidence of which may be offered at the trial under any exceptions to the general exclusionary rule. In cases of felonies and gross misdemeanors, the notice shall be given at or before the Omnibus Hearing under Rule 11 or as soon after the Omnibus Hearing as the offenses become known to the prosecuting attorney. In misdemeanor cases, the notice shall be given at or before the pretrial conference under Rule 12 if held or as soon thereafter as the offense becomes known to the prosecuting attorney. If no pretrial conference is held, then the notice shall be given at least seven (7) days before trial or as soon thereafter as known to the prosecuting attorney. Such additional offenses shall be described with sufficient particularity to enable the defendant to prepare for trial. The notice need not include offenses for which the defendant has been previously prosecuted or those that may be offered in rebuttal of the defendant's character witnesses or as a part of the occurrence or episode out of which the offense charged against defendant arose.

Comment—Rule 7

See comment following Rule 7.03.

Rule 7.03 Completion of Discovery

Before the date set for the Omnibus Hearing, in felonies and gross misdemeanor cases, the prosecution and defendant shall complete the discovery that is required by Rule 9.01 and Rule 9.02 to be made without the necessity of an order of court.

In misdemeanor cases, without order of the court the prosecuting attorney on request of the defendant or defense counsel shall, prior to arraignment or at any time before trial, permit the defendant or defense counsel to inspect the police investigatory reports. Upon request, the defendant or defense counsel also shall be entitled to receive a reproduction of the police investigatory reports after the arraignment. this obligation to provide a reproduction of the police investigatory reports may be satisfied by any method that provides to the defendant or defense counsel an exact reproduction of such reports, including E-mail, facsimile transmission, or similar method if that method is available to both parties. A reasonable charge may be made to cover the actual costs of reproduction unless the defendant is represented by the public defender or an attorney working for a public defense corporation under Minn. Stat. § 611.216 or is determined by the court to be financially unable to obtain counsel pursuant to Rule 5.02. Any other discovery shall be by consent of the parties or by motion to the court.

Comment—Rule 7

Under Rule 7.01 the Rasmussen notice (State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 141 N.W.2d 3 (1965)) of evidence obtained from the defendant and of identification procedures shall be given on or before the defendant's appearance in the district court under Rule 8 (within 14 days after the first appearance in the court under Rule 5) in order that the defendant may determine at the time of the appearance in the district court under Rule 8 whether to waive or demand a Rasmussen hearing (Rule 8.03). If the defendant then demands a Rasmussen hearing, it will be included in the Omnibus Hearing (Rule 11) no more than 28 days later. It is permissible for the prosecuting attorney to attach to a complaint for service a notice under Rule 7.01 or a discovery request under Rule 9.02.

In misdemeanor cases under Rule 7.01, the Rasmussen notice of evidence obtained from the defendant and of identification procedures may be given at arraignment and in such a case the waiver or demand of a hearing takes place at that time (Rule 5.04, subd. 4). However, since misdemeanor arraignments are often within one day or even a few hours of an arrest, a prosecutor may not have sufficient knowledge of the case to issue a Rasmussen notice at that time. Rather than discourage such prompt arraignments, this rule provides that the Rasmussen notice may be served as late as the pre-trial conference, if held, or at least seven days before trial if no pre-trial conference is held. The Rasmussen notice procedure is required only where a jury trial is to be held. This continues present law under City of St. Paul v. Page, 285 Minn. 374, 173 N.W.2d 460 (1969). Even where no notice is required, however, it is anticipated that the discovery permitted by Rule 7.03 will give the defendant and defense counsel notice of any evidentiary or identification issues that would have been the subject of a formal Rasmussen notice.

The notice required by Rule 7.01 must be in writing in felony and gross misdemeanor cases and may be either in writing or oral on the record in misdemeanor cases. Any written notice may be delivered either personally or by ordinary mail to the defendant's or defense counsel's last known residential or business address or by leaving it at such address with a person of suitable age and discretion then residing or working there. If the notice is not actually received, the court may grant a continuance to prevent any prejudice due to surprise.

Rule 7.02 requires that the Spreigl notice (State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965), State v. Billstrom, 276 Minn. 174, 149 N.W.2d 281 (1967)) of additional offenses be given on or before the date of the Omnibus Hearing (Rule 11) in order that any issues that may arise as to the admissibility of the evidence of these offenses at trial may be ascertained and determined at the Omnibus Hearing. (Rule 11.04.) If the prosecuting attorney learns of any such offenses after the Omnibus Hearing, the prosecuting attorney shall immediately give notice thereof to the defendant.

Rule 7.03 requires that the discovery provided by Rules 9.01, subd. 1; 9.02, subd. 1 to be made without order of court shall be completed by the prosecution and defense before the Omnibus Hearing (Rule 11). This will permit the court to resolve at the Omnibus Hearing any issues that may have arisen between the parties with respect to discovery (Rules 9.03, subd. 8; 11.04). It may also result in a plea of guilty at the Omnibus Hearing (Rule 11.07). All notices under Rule 7 shall also be filed with the court (Rule 33.04).

Rule 7.03, in misdemeanor cases, requires the prosecutor upon request of the defendant or defense counsel at any time before trial to permit inspection of the police investigatory reports in the case. Additionally, upon request of the defendant or defense counsel, the prosecutor is obligated to provide a reproduction of the police investigatory reports to defendants or defense counsel after the arraignment. This obligation of the prosecutor to provide a reproduction of such reports may be satisfied not just by photocopying, but by other existing or future methods that permit transmission of an exact reproduction to the defendant or defense counsel. This would include E-mail or facsimile transmission if the defendant or defense counsel has the equipment necessary to receive such transmissions. The provision of the rule permitting free copies to public defenders and attorneys working for public defense corporation under Minn. Stat. § 611.216 is in accord with Minn. Stat. § 611.271. Under this rule the prosecutor should reveal not only the reports physically in the prosecutor's possession, but also those concerning the case which are yet in the possession of the police. This disclosure of investigatory reports is already the practice of many prosecutors and in most misdemeanor cases should be sufficient discovery. This type of discovery is particularly important in misdemeanor cases where prosecution can be initiated upon a tab charge (Rule 4.02, subd. 5(3)) without a complaint or indictment. A defendant, of course, may request a complaint under Rule 4.02, subd. 5(3) to be better informed of the charges, but it is expected that complaints will seldom be requested when the investigatory reports are disclosed to the defendant.

In those rare cases where additional discovery is considered necessary by either party, it shall be by consent of the parties or by motion to the court. In such cases it is expected that the parties and the court will be guided by the extensive discovery provisions of these rules. Rule 9 provides guidelines for deciding any such motions, but they are not mandatory and the decision is within the discretion of the trial judge. State v. Davis, 592 N.W.2d 457 (Minn. 1999).

Rule 8. Defendant’s Initial Appearance Before the District Court Following the Complaint or Tab Charge in Felony and Gross Misdemeanor Cases

Rule 8.01 Place of Appearance and Arraignment

The defendant's initial appearance following the complaint or, for a designated gross misdemeanor as defined by Rule 1.04(b), a tab charge under this rule shall be held in the district court of the judicial district where the alleged offense was committed.

Unless the offense charged in the complaint is a homicide and the prosecuting attorney notifies the court that the case will be presented to a grand jury, or the offense is punishable by life imprisonment, the defendant shall be arraigned upon the complaint or the complaint as it may be amended or, for designated gross misdemeanors, the tab charge, but may only enter a plea of guilty at that time. If the defendant does not wish to plead guilty, no other plea shall be called for and the arraignment shall be continued until the Omnibus Hearing when pursuant to Rule 11.10 the defendant shall plead to the complaint or the complaint as amended or be given additional time within which to plead. If the offense charged in the complaint is a homicide and the prosecuting attorney notifies the court that the case will be presented to the grand jury, or if the offense is punishable by life imprisonment, the presentation of the case to the grand jury shall commence within 14 days from the date of defendant's appearance in the court under this rule, and an indictment or report of no indictment shall be returned within a reasonable time. If an indictment is returned, the Omnibus Hearing under Rule 11 shall be held as provided by Rule 19.04, subd. 5.

Comment—Rule 8

Rule 8.02 Plea of Guilty

At an initial appearance under this rule, the defendant may enter a plea of guilty to a felony, a gross misdemeanor, or a misdemeanor as permitted under Rule 15. If the defendant enters a plea of guilty, the pre-sentencing and sentencing procedures provided by these rules shall be followed.

Comment—Rule 8

Rule 8.03 Demand or Waiver of Hearing

If the defendant does not plead guilty, the defendant and the prosecution shall each either waive or demand a hearing as provided by Rule 11.02 on the admissibility at trial of any of the evidence specified in the notice given by the prosecuting attorney under Rule 7.01 or the admissibility of any evidence obtained as a result of such evidence.

Comment—Rule 8

Rule 8.04 Plea and Time and Place of Omnibus Hearing

(a) If the defendant does not plead guilty, the Omnibus Hearing on the issues as provided for by Rules 11.03 and 11.04, shall be held within the time hereinafter specified.

(b) If hearing on either of the issues set forth in Rule 8.03 is demanded, the Omnibus Hearing shall also include the issues provided for by Rule 11.02.

(c) The Omnibus Hearing provided for by Rule 11 shall be scheduled for a date not later than twenty-eight (28) days after the defendant's appearance before the court under this rule. The court may extend such time for good cause related to the particular case upon motion of the prosecuting attorney or defendant or upon the court's initiative.

Comment—Rule 8

Rule 8.05 Record

A verbatim record shall be made of the proceedings at the defendant's initial appearance before the court under this rule.

Comment—Rule 8

Rule 8.06 Conditions of Release

In accordance with the rules governing bail or release, the court may continue or amend those conditions for defendant's release set by the court previously.

Comment—Rule 8

Unless the offense charged in the complaint is a homicide and the prosecuting attorney notifies the court that the case will be presented to a grand jury, or the offense is punishable by life imprisonment, upon the defendant's initial appearance before the court under this rule following a complaint charging a felony or gross misdemeanor or a tab charge charging a designated gross misdemeanor as defined by Rule 1.04(b) (within 14 days after the first appearance under Rule 5), the defendant shall, upon request, be permitted to plead guilty to the complaint, tab charge or amended complaint (See Rules 3.04, subd. 2; 17.05) as provided by Rule 15. At this stage of the proceeding, the tab charge or complaint which was filed in the court, or that complaint as it may be amended (Rule 17.05) or superseded (Rule 3.04, subd. 2), takes the place of the information under existing Minnesota law (Minn. Stat. §§ 628.29- 629.33 (1971)) and provides the basis for the court's jurisdiction over the prosecution and the offenses charged in the complaint or the tab charge. Under Rule 4.02, subd. 5(3) a prosecution for a designated gross misdemeanor may be commenced by tab charge, but a complaint must be served and filed within 48 hours of the defendant's appearance on the tab charge if the defendant is in custody or within 10 days of the defendant's appearance on the tab charge if the defendant is not in custody. Therefore, if the separate Rule 8 appearance occurs later than those time limits, as will usually be the case, a complaint must have been served and filed for such a gross misdemeanor or prosecution to continue. However, if the Rule 5 and Rule 8 appearances were consolidated under Rule 5.03, it would be possible for the tab charge to still be effective at the time of the Rule 8 appearance.

If the defendant pleads guilty the procedures provided by Rule 15 shall be followed.

The defendant is not required to enter a plea upon the appearance in court under Rule 8. The defendant may, however, plead guilty.

Under Rule 8.03, if the defendant does not plead guilty, and if the prosecution has given the notice prescribed by Rule 7.01 both the defendant and the prosecution shall be required to either waive or demand a Rasmussen (State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 141 N.W.2d 3 (1965)) hearing. (Rule 8.03).

If the Rasmussen hearing is waived by both the prosecution and the defense, the Omnibus Hearing provided by Rule 11 shall be held without a Rasmussen hearing. (See the initial comments to Rule 11 describing the three parts of an Omnibus Hearing.)

If the Rasmussen hearing is demanded, the hearing shall be held as part of the Omnibus Hearing as provided by Rule 11.02.

The Omnibus Hearing shall be commenced not later than 28 days after the defendant's initial appearance in court under Rule 8 unless the time is extended for good cause related to the particular case. (Rule 8.04). If the time is extended, the Omnibus Hearing must still be completed and the issues decided within 30 days after the defendant's initial appearance before the court under Rule 8 unless extended by the Court for good cause related to the particular case. See Rules 11.04 and 11.07 and the comments to Rule 11. See Minn. Stat. § 611A.033 regarding the prosecutor's duties under the Victim's Rights Act to make reasonable efforts to provide advance notice of any change in the schedule of court proceedings. This would include the Omnibus Hearing as well as trial or any other hearing.

Under Rule 8.01, if the offense charged in the complaint is punishable by life imprisonment, or if it is a homicide and the prosecuting attorney notifies the court the case will be presented to the grand jury, the defendant shall not be arraigned upon the complaint, and the case shall be presented to the grand jury as provided by Rule 8.01. If an indictment is returned, the Omnibus Hearing shall be held as provided by Rule 19.04, subd. 5.

Rule 8.05 provides for a verbatim record of the proceedings under Rule 8.

Under Rule 8.06 the court may in accordance with the provisions of Rule 6.02 continue or amend the bail or conditions of release set by the court previously.

Rule 9. Discovery in Felony and Gross Misdemeanor Cases

Rule 9.01 Disclosure by Prosecution

Subd. 1. Disclosure by Prosecution Without Order of Court. Without order of court and except as provided in Rule 9.01, subd. 3, the prosecuting attorney on request of defense counsel shall, before the date set for Omnibus Hearing provided for by Rule 11, allow access at any reasonable time to all matters within the prosecuting attorney's possession or control which relate to the case and make the following disclosures:

(1) Trial Witnesses; Grand Jury Witnesses; Other Persons.

(a) The prosecuting attorney shall disclose to defense counsel the names and addresses of the persons intended to be called as witnesses at the trial together with their prior record of convictions, if any, within the prosecuting attorney's actual knowledge. The prosecuting attorney shall permit defense counsel to inspect and reproduce such witnesses' relevant written or recorded statements and any written summaries within the prosecuting attorney's knowledge of the substance of relevant oral statements made by such witnesses to prosecution agents.

(b) The fact that the prosecution has supplied the name of a trial witness to defense counsel shall not be commented on in the presence of the jury.

(c) If the defendant is charged by indictment, the prosecuting attorney shall disclose to defense counsel the names and addresses of the witnesses who testified before the grand jury in the case against the defendant.

(d) The prosecuting attorney shall disclose to defense counsel the names and the addresses of persons having information relating to the case.

(2) Statements. The prosecuting attorney shall disclose and permit defense counsel to inspect and reproduce any relevant written or recorded statements which relate to the case within the possession or control of the prosecution, the existence of which is known by the prosecuting attorney, and shall provide defense counsel with the substance of any oral statements which relate to the case.

(3) Documents and Tangible Objects. The prosecuting attorney shall disclose and permit defense counsel to inspect and reproduce books, grand jury minutes or transcripts, law enforcement officer reports, reports on prospective jurors, papers, documents, photographs and tangible objects which relate to the case and the prosecuting attorney shall also permit defense counsel to inspect and photograph buildings or places which relate to the case.

(4) Reports of Examinations and Tests. The prosecuting attorney shall disclose and permit defense counsel to inspect and reproduce any results or reports of physical or mental examinations, scientific tests, experiments or comparisons made in connection with the particular case. The prosecuting attorney shall allow the defendant to have reasonable tests made. If a scientific test or experiment of any matter, except those conducted under Minn. Stat. Ch. 169, may preclude any further tests or experiments, the prosecuting attorney shall give the defendant reasonable notice and an opportunity to have a qualified expert observe the test or experiment.

(5) Criminal Record of Defendant and Defense Witnesses. The prosecuting attorney shall inform defense counsel of the records of prior convictions of the defendant and of any defense witnesses disclosed under Rule 9.02, subd. 1(3)(a) that are known to the prosecuting attorney provided the defense counsel informs the prosecuting attorney of any such records known to the defendant.

(6) Exculpatory Information. The prosecuting attorney shall disclose to defense counsel any material or information within the prosecuting attorney's possession and control that tends to negate or reduce the guilt of the accused as to the offense charged.

(7) Scope of Prosecutor's Obligations. The prosecuting attorney's obligations under this rule extend to material and information in the possession or control of members of the prosecution staff and of any others who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported to the prosecuting attorney's office.

Subd. 2. Discretionary Disclosure Upon Order of Court.

(1) Matters Possessed by Other Governmental Agencies. Upon motion of the defendant, the court for good cause shown shall require the prosecuting attorney, except as provided by Rule 9.01, subd. 3, to assist the defendant in seeking access to specified matters relating to the case which are within the possession or control of an official or employee of any governmental agency, but which are not within the control of the prosecuting attorney. The prosecuting attorney shall use diligent good faith efforts to cause the official or employee to allow the defendant access at any reasonable time and in any reasonable manner to inspect, photograph, copy, or have reasonable tests made.

(2) Nontestimonial Evidence from Defendant on Defendant's Motion. Upon motion of the defendant who has been arrested, cited or charged under these rules, the court for good cause shown may require the prosecuting attorney to provide for defendant to participate in a lineup, to speak for identification by witnesses or to participate in other procedures which would require a court order to accomplish.

(3) Other Relevant Material. Upon motion of the defendant, the trial court at any time before trial may, in its discretion, require the prosecuting attorney to disclose to defense counsel and to permit the inspection, reproduction or testing of any relevant material and information not subject to disclosure without order of court under Rule 9.01, subd. 1, provided, however, a showing is made that the information may relate to the guilt or innocence of the defendant or negate the guilt or reduce the culpability of the defendant as to the offense charged. If the motion is denied, the court upon application of the defendant shall inspect and preserve any such relevant material and information.

Subd. 3. Information Non-Discoverable. The following information shall not be discoverable by the defendant:

(1) Work Product.

(a) Opinions, Theories or Conclusions. Unless otherwise provided by these rules, legal research, records, correspondence, reports or memoranda to the extent that they contain the opinions, theories or conclusions of the prosecuting attorney or members of the prosecution staff or officials or official agencies participating in the prosecution.

(b) Reports. Except as provided in Rules 9.01, subd. 1(1) to (6), reports, memoranda or internal documents made by the prosecuting attorney or members of the prosecution staff or by prosecution agents in connection with the investigation or prosecution of the case against the defendant.

(2) Prosecution Witnesses Under Prosecuting Attorney's Certificate. The information relative to the witnesses and persons described in Rules 9.01, subd. 1(1), (2) shall not be subject to disclosure if the prosecuting attorney files a written certificate with the trial court that to do so may endanger the integrity of a continuing investigation or subject such witnesses or persons or others to physical harm or coercion, provided, however, that non-disclosure under this rule shall not extend beyond the time the witnesses or persons are sworn to testify at the trial.

Comment—Rule 9

See comment following Rule 9.03.

Rule 9.02 Disclosure by Defendant

Subd. 1. Information Subject to Discovery Without Order of Court. Without order of court, the defendant on request of the prosecuting attorney shall, before the date set for the Omnibus Hearing provided for by Rule 11, make the following disclosures:

(1) Documents and Tangible Objects. The defendant shall disclose and permit the prosecuting attorney to inspect and reproduce books, papers, documents, photographs, and tangible objects which the defendant intends to introduce in evidence at the trial or concerning which the defendant intends to offer evidence at the trial, and shall also permit the prosecuting attorney to inspect and reproduce reports on prospective jurors and to inspect and photograph buildings or places concerning which the defendant intends to offer evidence at trial.

(2) Reports of Examinations and Tests. The defendant shall disclose and permit the prosecuting attorney to inspect and reproduce any results or reports of physical or mental examinations, scientific tests, experiments and comparisons made in connection with the particular case within the possession or control of the defendant which the defendant intends to introduce in evidence at the trial or which were prepared by a witness whom the defendant intends to call at the trial when the results or reports relate to testimony of the witness.

(3) Notice of Defense and Defense Witnesses and Criminal Record.

(a) Notice of Defense. The defendant shall inform the prosecuting attorney in writing of any defense, other than that of not guilty, on which the defendant intends to rely at the trial, including but not limited to the defense of self-defense, entrapment, mental illness or deficiency, duress, alibi, double jeopardy, statute of limitations, collateral estoppel, defense under Minn. Stat. § 609.035, or intoxication. The defendant shall supply the prosecuting attorney with the names and addresses of persons whom the defendant intends to call as witnesses at the trial together with their record of convictions, if any, within the defendant's actual knowledge.

A defendant who gives notice of intent to rely on the defense of mental illness or mental deficiency shall also notify the prosecuting attorney of any intent to additionally rely on the defense of not guilty.

(b) Statements of Defense and Prosecution Witnesses. The defendant shall permit the prosecuting attorney to inspect and reproduce any relevant written or recorded statements of the persons whom the defendant intends to call as witnesses at the trial and also statements of prosecution witnesses obtained by the defendant, defense counsel, or persons participating in the defense, and which are within the possession or control of the defendant and shall permit the prosecuting attorney to inspect and reproduce any written summaries within the defendant's knowledge of the substance of any oral statements made by such witnesses to defense counsel or obtained by the defendant at the direction of defense counsel. This provision does not require disclosure of the statements made by the defendant to defense counsel or agents of defense counsel that are protected by the attorney-client privilege or by state or federal constitutional guarantees.

(c) Alibi. If the defendant intends to offer evidence of an alibi, the defendant shall also inform the prosecuting attorney of the specific place or places where the defendant contends to have been when the alleged offense occurred and shall inform the prosecuting attorney of the names and addresses of the witnesses the defendant intends to call at the trial in support of the alibi.

As soon as practicable, the prosecuting attorney shall then inform the defendant of the names and addresses of the witnesses the prosecuting attorney intends to call at the trial to rebut the testimony of any of the defendant's alibi witnesses.

(d) Criminal Record. Defense counsel shall inform the prosecuting attorney of any prior convictions of the defendant provided the prosecuting attorney informs defense counsel of the record of prior convictions known to the prosecuting attorneys.

(e) Entrapment. A defendant who gives notice of intention to rely on the defense of entrapment, shall include in the notice a statement of the facts forming the basis for the defense, and elect whether to have the defense submitted to the court or to the jury.

The entrapment defense may not be submitted to the court unless the defendant waives jury trial upon that issue as provided by Rule 26.01, subd. 1(2).

If the entrapment defense is submitted to the court, the hearing thereon shall be included in the Omnibus Hearing under Rule 11 or in the evidentiary hearing provided for by Rule 12. The court shall make findings of fact and conclusions of law on the record supporting its decision.

Subd. 2. Discovery Upon Order of Court.

(1) Disclosures Permitted. Upon motion of the prosecuting attorney with notice to defense counsel and a showing that one or more of the discovery procedures hereafter described will be of material aid in determining whether the defendant committed the offense charged, the trial court at any time before trial may, subject to constitutional limitations, order a defendant to:

(a) Appear in a lineup;

(b) Speak for identification by witnesses to an offense or for the purpose of taking voice prints;

(d) Permit measurements of the defendant's body to be taken;

(e) Pose for photographs not involving re-enactment of a scene;

(f) Permit the taking of samples of the defendant's blood, hair, saliva, urine, and other materials of the defendant's body which involve no unreasonable intrusion thereof; provided, however, that the court shall not permit a blood test to be taken except upon a showing of probable cause to believe that the test will aid in establishing the guilt of the defendant;

(g) Provide specimens of the defendant's handwriting; and

(h) Submit to reasonable physical or medical inspection of the defendant's body.

(2) Notice of Time and Place of Disclosures. Whenever the personal appearance of the defendant is required for the foregoing purposes, reasonable notice of the time and place thereof shall be given by the prosecuting attorney to defense counsel.

(3) Medical Supervision. Blood tests shall be conducted under medical supervision, and the court may require medical supervision for any other test ordered pursuant to this rule when the court deems such supervision necessary. Upon motion of the defendant, the court may order the defendant's appearance delayed for a reasonable time or may order that it take place at the defendant's residence, or some other convenient place.

(4) Notice of Results of Disclosure. Unless otherwise ordered by the court, the prosecuting attorney, within five (5) days from the date the results of the discovery procedures provided by this rule become known, shall make available to defense counsel a report of the results.

(5) Other Methods Not Excluded. The discovery procedures provided for by this rule do not exclude other lawful methods available for obtaining the evidence discoverable under the rule.

Subd. 3. Information Not Subject to Disclosure by Defendant; Work Product. Unless otherwise provided by these rules, legal research, records, correspondence, reports or memoranda to the extent they contain the opinions, theories, or conclusions of the defendant or defense counsel or persons participating in the defense are not subject to disclosure.

Subd. 4. Failure to Call Witness. The fact that a witness' name is on a list furnished by defendant to the prosecution under this rule shall not be commented on in the presence of the jury.

Comment—Rule 9

See comment following Rule 9.03.

Rule 9.03 Regulation of Discovery

Subd. 1. Investigations Not to be Impeded. Except as otherwise provided as to matters not subject to discovery or covered by protective orders, neither the counsel for the parties nor other prosecution or defense personnel shall advise persons having relevant material or information (except the accused) to refrain from discussing the case with opposing counsel or from showing opposing counsel any relevant materials, nor shall they otherwise impede opposing counsel's investigation of the case.

Subd. 2. Continuing Duty to Disclose.

(a) If subsequent to compliance with any discovery rule or order, a party discovers additional material, information or witnesses subject to disclosure, that party shall promptly notify the other party of the existence of the additional material or information and the identity of the witnesses.

(b) Each party shall have a continuing duty at all times before and during trial to supply the materials and information required by these rules.

Subd. 3. Time, Place and Manner of Discovery and Inspection. An order of the court granting discovery shall specify the time, place and manner of making the discovery and inspection permitted and may prescribe such terms and conditions as are just.

Subd. 4. Custody of Materials. Any materials furnished to an attorney under discovery rules or orders shall remain in the custody of and be used by the attorney only for the purpose of conducting that attorney's side of the case, and shall be subject to such other terms and conditions as the court may prescribe.

Subd. 5. Protective Orders. Upon a showing of cause, the trial court may at any time order that specified disclosures be restricted or deferred, or make such other order as is appropriate. All material and information to which a party is entitled must be disclosed in time to afford counsel the opportunity to make beneficial use of it.

Subd. 6. In Camera Proceedings. Upon application of any party with notice to the adverse party, the trial court upon a showing of good cause therefor may permit any showing of cause for denial or regulation of discovery, or portion of such showing, to be made in camera. A record shall be made of the proceedings. If the court enters an order granting relief following a showing in camera, the entire record of such showing shall be sealed and preserved in the records of the court, to be made available to the reviewing court in the event of an appeal, habeas corpus proceedings, or post-conviction proceedings under Minn. Stat. §§ 590.01- 590.06 (1971).

Subd. 7. Excision. When some parts of certain material are discoverable under these rules, and other parts not discoverable, as much of the material shall be disclosed as is consistent with discovery rules. Material excised pursuant to judicial order shall be sealed and preserved in the records of the court to be made available to the reviewing court in the event of an appeal, habeas corpus proceeding, or post-conviction proceedings under Minn. Stat. §§ 590.01- 590.06 (1971).

Subd. 8. Sanctions. If at any time it is brought to the attention of the trial court that a party has failed to comply with an applicable discovery rule or order, the court may upon motion and notice order such party to permit the discovery or inspection, grant a continuance, or enter such order as it deems just in the circumstances. Any person who willfully disobeys a court order under these discovery rules may be held in contempt.

Subd. 9. Filing. Unless the court orders otherwise for the purpose of a hearing or trial, discovery disclosures made pursuant to Rule 9 shall not be filed under the provisions of Rule 33.04.

The party making the disclosures shall prepare an itemized descriptive list identifying the disclosures without disclosing their contents and shall file the list as provided by Rule 33.04.

Subd. 10. Reproduction. Whenever a party has an obligation to permit reproduction of a report, statement, document or other tangible thing, discoverable under this rule, that obligation may be satisfied by any method that provides to the other party an exact reproduction of that item, including E-mail, facsimile transmission, or similar method if that method is available to both parties. A reasonable charge may be made to cover the actual costs of reproduction, except that no charge may be assessed to a defendant represented by the public defender or by an attorney working for a public defense corporation under Minn. Stat. § 611.216 or to a defendant determined by the court to be financially unable to obtain counsel pursuant to Rule 5.02.

Comment—Rule 9

Rule 9, with Rules 7.01, 19.04, subd. 6(1) (Rasmussen notice of evidence obtained from the defendant and of identification procedures), Rules 7.02, 19.04, subd. 6(2) (Spreigl notice of additional offenses to be offered at trial), and Rule 18.05, subds. 1 and 2 (recorded testimony of grand jury witnesses), provide a comprehensive method of discovery by the prosecution (Rule 9.01) and defendant (Rule 9.02). The rules are intended to give the defendant and prosecution as complete discovery as is possible under constitutional limitations.

It is the object of the rules that these discovery procedures shall be completed so far as possible by the time of the Omnibus Hearing under Rule 11, which will be held within 42 days after the defendant's first appearance in court following a complaint under Rule 5, where the Rule 5 and Rule 8 appearances are not consolidated, or within 14 days after the first appearance in district court following an indictment (Rule 19.04) and that all issues arising from the discovery process, including the need for additional discovery, will be resolved at the Omnibus Hearing (Rules 11.04; 9.01, subd. 2; 9.03, subd. 8).

While a pre-trial conference originally was not specifically provided for by these rules (Compare ABA Standards, Discovery and Procedure Before Trial, 5.4 (Approved Draft, 1970) containing a specific provision for a pre-trial conference), Rule 11.04 now expressly permits the court in its discretion to hold a pre-trial dispositional conference as a part of the Omnibus Hearing if it determines there is a need for it. (See F.R.Crim.P. 17.1.)

Rule 9.01, subd. 1 provides for the disclosures that shall be made before the Omnibus Hearing by the prosecution upon request of the defense without an order of court. As to the prosecution's duty to disclose under the rule see State v. Smith, 313 N.W.2d 429 (Minn.1981), State v. Zeimet, 310 N.W.2d 552 (Minn.1981), State v. Schwantes, 314 N.W.2d 243 (Minn.1982), and State v. Hall, 315 N.W.2d 223 (Minn.1982).

Rule 9.01, subd. 1 provides generally for access by defense counsel to unprotected materials in the prosecution file and also for numerous specific disclosures which must be made by the prosecuting attorney upon request of defense counsel. The general "open file" policy established by the rule is based on Unif.R.Crim.P. 421(a) (1987). Of course, this "open file" policy does not require the prosecuting attorney to give defense counsel access to any information that would be deemed non-discoverable under Rule 9.01, subd. 3.

No specific form of request is required by Rule 9.01, subd. 1. It is anticipated that the discovery provided for by Rule 9.01, subd. 1 as well as the disclosures required of the defense by Rule 9.02 without order of court will be accomplished informally between the prosecuting attorney and defense counsel. (See ABA Standards, Discovery and Procedure Before Trial, 1.3(a), 1.4(b) (Approved Draft, 1970).)

Rule 9.01, subd. 1(1)(a), providing for the discovery of the prosecution's trial witnesses, with their written or recorded statements and written summaries of oral statements, and their criminal records, substantially follows ABA Standards, Discovery and Procedure Before Trial, 2.1(a)(i)(ii)(vi) (Approved Draft, 1970) and Preliminary Draft of Proposed Amendments to F.R.Crim.P. 16(a)(i)(vi) (1970) (48 F.R.D. 553, 587-589). The policy of this rule is to permit discovery of "written and recorded statements in whatever form they may have been preserved". (See Comments ABA Standards, Discovery and Procedure Before Trial, 2.1, p. 62 (Approved Draft, 1970).)

Discovery under Rule 9.01, subd. 1(1)(a) is subject to the provisions of Rule 9.01, subd. 3(2) (prosecutor's certificate for the protection of witnesses) and Rule 9.03, subd. 5 (protective orders).

Rule 9.01, subd. 1(1)(b), forbidding comment to the jury on the fact that a person was named on the list of prosecution witnesses, is taken from Preliminary Draft of Proposed Amendments to F.R.Crim.P. 16(4) (1970) (48 F.R.D. 553, 590). This rule is not intended to affect any right defense counsel may have by existing law to comment on the fact that the prosecution has failed to call a particular witness, but prevents defense counsel from commenting on the fact that the witness was on the prosecution's list.

Rule 9.01, subd. 1(1)(c), requiring the prosecution to disclose the names and addresses of grand jury witnesses, is in accord with the requirements of existing law (Minn. Stat. § 628.08 (1971)). Rule 18.05, subd. 2 provides the method for discovery of their grand jury testimony. (This follows substantially the recommendations of ABA Standards, Discovery and Procedure Before Trial, 2.1(a)(iii) (Approved Draft, 1970).)

Rule 9.01, subd. 1(1)(d) requiring the disclosure of the names of all persons having information related to the case is taken from Unif.R.Crim.P. 421(a) (1987). Additionally, the other specific items required to be disclosed by Unif.R.Crim.P. 421(a) (1987) are included in Rule 9.01, subd. 1.

Rule 9.01, subd. 1(2), as originally promulgated followed substantially ABA Standards, Discovery and Procedure Before Trial, 2.1(a)(ii) (Approved Draft, 1970). As revised it is in accord with Unif.R.Crim.P. 421(a) and requires the disclosure of written or recorded statements of all persons (whether or not the statements will be offered in evidence) and also requires disclosure of the substance of any oral statements which relate to the case.

Rule 9.01, subd. 1(2) differs from ABA Standards, Discovery and Procedure Before Trial, 2.1(a)(ii) (Approved Draft, 1970) in that the rule covers the written or recorded statements of accomplices and co-defendants whether or not they are to be tried jointly with the defendant.

Rule 9.01, subd. 1(3), providing for discovery of documents and tangible objects, was originally taken from ABA Standards, Discovery and Procedure Before Trial, 2.1(a)(v) (Approved Draft, 1970), Fed.R.Crim.P. 16(6), and Preliminary Draft of Proposed Amendments to F.R.Crim.P. 16(iv) (1970), 48 F.R.D. 553, 588 to 599. It has been broadened based on Unif.R.Crim.P. 421(a) (1987) to include grand jury minutes or transcripts, law enforcement officer reports, and reports on prospective jurors. Additionally, the items which must be disclosed need only relate to the case, whether or not the prosecuting attorney intends to offer evidence about them at trial. This rule permits the defendant to obtain from the prosecuting attorney grand jury transcripts possessed by the prosecuting attorney. If the defendant wants portions of the grand jury record not yet transcribed or possessed by the prosecuting attorney, it is necessary to request that of the court under Rule 18.05 and to meet the standards under that rule.

Rule 9.01, subd. 1(4) for discovery of reports of examinations and tests follows F.R.Crim.P. 16(a)(2) and ABA Standards, Discovery and Procedure Before Trial, 2.1(a)(iv) (Approved Draft, 1970). The provision in this rule for reasonable tests by the defendant is taken from Unif.R.Crim.P. 421(a) (1987). If a test or experiment done by the prosecution does not destroy the evidence and preclude further tests or experiments, it is not necessary under this rule to notify the defendant or to allow a defense expert to observe the test or experiment.

Rule 9.01, subd. 1(5) and Rule 9.02, subd. 1(3)(d) providing for reciprocal discovery of the defendant's criminal record between prosecution and defendant is taken from Preliminary Draft of Proposed Amendments to F.R.Crim.P. 16(a)(1)(iii) (1970) 48 F.R.D. 553, 588.

Rule 9.01, subd. 1(5) also provides for the reciprocal discovery of the criminal records of any defense witness disclosed to the prosecution under Rule 9.02, subd. 1(3)(a). Under Rule 9.03, subd. 2 there is a continuing duty to disclose such information up through trial. If the prosecutor intends to impeach the defendant or any defense witnesses with evidence of prior convictions the prosecutor is required by State v. Wenberg, 289 N.W.2d 503 (Minn.1980) to request a pretrial hearing on the admissibility of such evidence under the Rules of Evidence. The pretrial hearing may be made a part of the Omnibus Hearing under Rule 11 or the pretrial conference under Rule 12. See Rule 609 of the Minnesota Rules of Evidence for the standards governing the use of criminal convictions to impeach a witness.

Rule 9.01, subd. 1(6) provides for the pre-trial disclosure of exculpatory material which is constitutionally required at trial. (See Brady v. Maryland, 373 U.S. 83, 87-88 (1963); ABA Standards, Discovery and Procedure Before Trial, 2.1(c) (Approved Draft, 1970).)

The scope of the prosecutor's obligations (Rule 9.01, subd. 1(7)) to make the disclosure required by Rule 9.01, subd. 1 is taken from ABA Standards, Discovery and Procedure Before Trial, 2.1(d) (Approved Draft, 1970).

Rule 9.01, subd. 2 provides for additional discretionary disclosure upon order of the court. A motion seeking such an order must be served on the other party as required by Rules 10.04, subd. 1 and 33.01. The first paragraph of Rule 9.01, subd. 2 requires the prosecuting attorney under certain circumstances to assist the defendant in seeking access to materials related to the case which are in the control of other governmental agencies. This provision of the rule does not allow a defendant access to materials possessed by other governmental agencies that are protected by the Minnesota government data practices act in Minn. Stat. Ch. 13 or by other legislation. This provision is similar to Unif.R.Crim.P. 421(d) (1987) except that under Rule 9.01, subd. 2 a court order is required upon a showing of good cause. The second paragraph of this rule permitting the defendant to request the court to order a lineup, voice identification test or similar procedure requiring a court order is based on Unif.R.Crim.P. 435 (1987) and ALI Model Code of Pre-Arraignment Procedure § 170.2(8) (1975). The defendant who is convinced that such nontestimonial evidence would "clear" him or her may desire to proceed under this rule, although most nontestimonial evidence procedures could be conducted by the defendant without using this rule. Reference is made to the defendant being arrested or cited because there may be need to obtain nontestimonial evidence before a complaint is filed. The standard for issuing the order differs slightly from that utilized in Rule 9.02, subd. 2(1) upon a similar motion by the prosecuting attorney. The "good cause" standard used here minimizes the possibility that the defendant will be required to offer potentially incriminating evidence in order to utilize this rule. The third paragraph of Rule 9.01, subd. 2, following ABA Standards, Discovery and Procedure Before Trial, 2.5(a) (Approved Draft, 1970), permits disclosure by order of court of relevant material not covered by Rule 9.01, subd. 1. This rule does not permit the discovery of material non-discoverable under Rule 9.01, subd. 3 and is not intended as one of the exceptions referred to in Rule 9.01, subd. 3(1)(a).

Requests or motions for discovery under Rule 9.01, subd. 2 should be made before (Rule 10.04) or at the Omnibus Hearing under Rule 11 (Rules 11.03, 11.04).

Rule 9.01, subd. 3 enumerates the material that is not discoverable from the prosecution.

Rule 9.01, subd. 3(1)(a), defining non-discoverable work product is taken from ABA Standards, Discovery and Procedure Before Trial, 2.6(a) (Approved Draft, 1970) and excludes material containing opinions, theories, or conclusions of the prosecutor and the prosecution staff and official investigators with the exception of the material specifically made discoverable by Rule 9.01, subd. 1. Rule 9.01, subd. 2 providing for discretionary discovery by order of court is not intended as one of the exceptions to the work product rule.

Rule 9.01, subd. 3(1)(b), following substantially F.R.Crim.P. 16(b), excludes from discovery internal prosecution reports with the exception of the material specifically covered by Rule 9.01, subd. 1.

Rule 9.01, subd. 3(2), precluding discovery of the identity and statements of prosecution witnesses and those persons referred to in Rule 9.01, subd. 1(1) and (2) if the prosecutor certifies that they or other persons may be subject to harm, is taken from Preliminary Draft of Proposed Amendments to F.R.Crim.P. 16(vi) (1970) 48 F.R.D. 553, 589. ABA Standards, Discovery and Procedure Before Trial, 2.5(b) (Approved Draft, 1970) authorizes the court to deny discretionary disclosure in similar circumstances. The prohibition contained in this rule does not extend beyond the time when the witnesses are sworn to testify at the trial, thus continuing in Minnesota the application of the Jencks rule (353 U.S. 657 (1957)). (See State v. Thompson, 273 Minn. 1, 139 N.W.2d 490, 508-512 (1966), State v. Grunau, 273 Minn. 315, 141 N.W.2d 815, 823 (1966).) This rule does not prohibit discovery of a defendant's own statement.

Rule 9.02, covering disclosure by the defendant, is based upon ABA Standards, Discovery and Procedure Before Trial, 3.1, 3.2, 3.3 (Approved Draft, 1970). (See also Preliminary Draft of Proposed Amendments to F.R.Crim.P. 16(b)(1) (1970), 48 F.R.D. 553, 591.) The sanctions and remedies for failure of the prosecution or defense to make discovery are provided for by Rule 9.03, subd. 8.

Rule 9.02, subd. 1 lists the information and material the defendant shall disclose without order of court before the Omnibus Hearing (Rule 11) on request of the prosecution.

Rule 9.02, subd. 1(1) for disclosure of documents and tangible objects to be introduced at trial follows the original language of the parallel rule (Rule 9.01, subd. 1(3)) for prosecution disclosure of similar material. (See F.R.Crim.P. 16(c); Preliminary Draft of Proposed Amendments to F.R.Crim.P. 16(b)(1)(i) (1970), 48 F.R.D. 553, 591.) The requirement to disclose reports on prospective jurors does not require disclosure of opinions or conclusions concerning jurors given by persons assisting counsel on the case. Such material would be protected as work product under Rule 9.02, subd. 3.

Rule 9.02, subd. 1(2) for disclosure of reports of examinations and tests follows the parallel prosecution disclosure rule (Rule 9.01, subd. 1(4)), except that under Rule 9.02, subd. 1(2) the information subject to defense disclosure is restricted to that to be offered at trial. This restriction on mandatory disclosure by the defendant was considered necessary to avoid the possibility of infringement on the privilege against self-incrimination. (See Jones v. Superior Court of Nevada County, 58 Cal.2d 56, 22 Cal.Rptr. 879, 372 P.2d 919 (1962); Williams v. Florida, 399 U.S. 78 (1970); ABA Standards, Discovery and Procedure Before Trial, 3.2 (Approved Draft, 1970); Preliminary Draft of Proposed Amendments to F.R.Crim.P. 16(b)(1)(ii) (1970), 48 F.R.D. 553, 591.)

Rule 9.02, subd. 1(3)(b) for disclosure of the statements of defense trial witnesses also follows the parallel prosecution disclosure Rule 9.01, subd. 1(1)(a). Rule 9.02, subd. 1(3)(b), which requires the defense to disclose statements of defense and prosecution witnesses, does not require the disclosure of a defendant’s statements made to defense counsel or agents of defense counsel where such information is protected by state and federal constitutional guarantees or the attorney-client privilege. See Minn. Stat. § 595.02, subd. 1(b).

Rule 9.02, subd. 1(3)(a) requires written notice of any defense other than not guilty on which the defendant intends to rely at the trial with the names and addresses of the witnesses the defendant intends to call at the trial. This rule is based on ABA Standards, Discovery and Procedure Before Trial, 3.3 (Approved Draft, 1970). The defendant is not required to indicate the witnesses intended to be used for each defense except in the case of the defense of alibi (Rule 9.02, subd. 1(3)(c)). Illustrations of the kinds of defenses requiring notice are set forth in Rule 9.02, subd. 1(3)(a). (See Williams v. Florida, 90 S.Ct. 1893, 399 U.S. 78, 26 L.Ed.2d 446 (1970) sustaining the constitutionality of the Florida notice-of-alibi statute.) (This rule expands present Minnesota statutory law covering notice of alibi. Minn. Stat. § 630.14 (1971).)

Under Rule 9.02, subd. 1(3)(a), a defendant who gives notice of intention to rely on the defense of mental illness or mental deficiency, shall notify the prosecution of any intention to rely also on the defense of not guilty. This notice is necessary for the purposes of Rule 20.02, subd. 6(1) and (2) governing the procedure following a mental examination when the defense is mental illness or mental deficiency.

In addition to Rule 9.02, subd. 1(3)(a), case law may establish notice requirements with which a defendant must comply in order to raise certain defenses. In State v. Grilli, 304 Minn. 80, 230 N.W.2d 445 (1975), the Court established the requirement that a defendant raising the defense of entrapment must notify the trial court and the prosecutor of the basis for the defense in reasonable detail and whether the defendant elects to have the issue of entrapment tried to the court or to a jury.

Rule 9.02, subd. 1(3)(d) for disclosure of the defendant's criminal record is similar to Rule 9.01, subd. 1(5) for prosecution disclosure of the record.

The procedures set forth in Rule 9.02, subd. 1(3)(e) for asserting the entrapment defense are taken from State v. Grilli, 304 Minn. 80, 230 N.W.2d 445 (1975). That case further requires that upon submission of the defense to court or jury, the defendant has the burden of proving by a fair preponderance of the evidence inducement by government agents to commit the crime charged, whereupon the burden rests on the state to prove beyond a reasonable doubt predisposition by defendant to commit the offense.

If the defendant asserts the defense of violation of due process with the entrapment defense or separately, the defense shall be heard and determined by the court. The concept of fundamental fairness inherent in the due process requirement will prevent conviction of even a predisposed defendant if the conduct of the government in participating in or inducing the commission of the crime is outrageous. As to this due process defense see Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), State v. Ford, 276 N.W.2d 178 (Minn.1979), and State v. Morris, 272 N.W.2d 35 (Minn.1978).

Rule 9.02, subd. 2, requiring the defendant upon order of court to personally submit to the non-testimonial identification and other procedures described in the rule, is based upon ABA Standards, Discovery and Procedure Before Trial, 3.1 (Approved Draft, 1970) and Preliminary Draft of Proposed Amendments to F.R.Crim.P. 41.1 (1971), 52 F.R.D. 409, 462-467. (See also, Schmerber v. California, 384 U.S. 757 (1966), Davis v. Mississippi, 394 U.S. 721, 727-728 (1969).) This rule is intended to be applicable only after an indictment has been returned, or a complaint filed upon which probable cause for the arrest of the defendant has been found.

Following indictment, the order under Rule 9.02, subd. 2 may be obtained from the district court at any time before trial, but preferably it should be sought at or before the Omnibus Hearing under Rule 11.

Following a complaint charging a felony or gross misdemeanor, the order may be obtained at the first appearance of the defendant under Rules 4.02, subd. 5(1) and 5, or at or before the Omnibus Hearing under Rule 11 from the court before which that hearing is held. It may be obtained from the district court at any time before trial, but preferably at or before the Omnibus Hearing.

Rule 9.02, subd. 2(2), requiring notice to defense counsel of the time and place for the personal appearance of the defendant, would include the defendant if the defendant represents herself or himself or is unrepresented. This rule is taken from ABA Standards, Discovery and Procedure Before Trial, 3.1(b) (Approved Draft, 1970).

Rule 9.02, subd. 2(3) providing for medical supervision and for modifications of the order as to time and place is based on Preliminary Draft of Proposed Amendments to F.R.Crim.P. 41.1(e)(i) (1971), 52 F.R.D. 409, 464-465.

Rule 9.02, subd. 2(4), providing for notice to defense counsel of the results of the examination, is based on Preliminary Draft of Proposed Amendments to F.R.Crim.P. 41.1(j) (1971), 52 F.R.D. 409, 465.

Rule 9.02, subd. 2(5) provides that the method prescribed by Rule 9.02, subd. 2 for obtaining the identification and other evidence from the defendant under order of court is not intended to exclude other lawful measures, such as a lawful search and seizure, by which the evidence may be obtained.

Rule 9.02, subd. 3, paralleling the language of Rule 9.01, subd. 3(1)(a) governing work product of the prosecution, defines the work product that is not subject to disclosure by the defendant, except as provided in Rules 9.02, subds. 1, 2 and 3.

Rule 9.03, governing the regulation of discovery is based on ABA Standards, Discovery and Procedure Before Trial, 4.1-4.7 (Approved Draft, 1970) and F.R.Crim.P. 16(e)(g).

Rule 9.03, subd. 1 follows substantially the language of ABA Standards, Discovery and Procedure Before Trial, 4.1 (Approved Draft, 1970) protecting interference with discovery.

The first sentence of Rule 9.03, subd. 2 providing for a continuing duty of disclosure is taken from ABA Standards, Discovery and Procedure Before Trial, 4.2 (Approved Draft, 1970) and F.R.Crim.P. 16(g). The second sentence is intended to make it clear that each party has a continuing duty before and at trial to make the disclosures required by Rules 9.01, subd. 1 and 9.02, subd. 1 regardless of whether the party has previously made discovery under the rules or on order of court. A party who fails to make discovery when under a duty to do so may be ordered to comply under Rule 9.03, subd. 8.

Rule 9.03, subd. 3, governing court orders for regulation of discovery, is taken from F.R.Crim.P. 16(d).

Rule 9.03, subd. 4, providing for the custody of discovered materials, comes from ABA Standards, Discovery and Procedure Before Trial, 4.3 (Approved Draft, 1970).

Rule 9.03, subd. 5, authorizing protective orders, follows ABA Standards, Discovery and Procedure Before Trial, 4.4 (Approved Draft, 1970). (See also F.R.Crim.P. 16(e).) In commenting on this standard (see Comment ABA Standards, Discovery and Procedure Before Trial, 4.4, p. 101 (Approved Draft, 1970)) the Committee stated as follows: "This standard permits application by the party concerned to the court for a protective order which can be tailored to the particular circumstances of the case. It is anticipated that it will ordinarily be needed with respect to those matters for which discovery is mandated, rather than matters where the court in the first instance can exercise discretion upon application of the defense and thus take exceptional circumstances into account at that time."

In making protective orders under Rule 9.03, subd. 5 or in ruling on motions to compel discovery under Rules 9.01, subd. 2 and 9.03, subd. 8, the court may avail itself of Rule 9.03, subd. 6 and subd. 7 authorizing in camera proceedings and excision.

Rule 9.03, subd. 6 and subd. 7 are taken from ABA Standards, Discovery and Procedure Before Trial, 4.5 and 4.6 (Approved Draft, 1970) and F.R.Crim.P. 16(e).

Rule 9.03, subd. 8 providing for sanctions follows ABA Standards, Discovery and Procedure Before Trial, 4.7 (Approved Draft, 1970).

Under Rule 9.03, subd. 10, the obligation of the defendant or the prosecutor to permit reproduction of items discoverable under Rule 9 may be satisfied not just by photocopying, but also by any other existing or future technology that permits transmission of an exact reproduction of the item. This would include E-mail or facsimile transmission if the other party has the equipment necessary to receive such transmissions. The provision in this rule permitting free copies to public defenders and attorneys working for public defense corporations under Minn. Stat. § 611.216 is in accord with Minn. Stat. § 611.271.

Rule 10. Pleadings and Motions Before Trial; Defenses and Objections

Rule 10.01 Pleadings and Motions

Pleadings in criminal proceedings shall be by the indictment, complaint or tab charge and the pleas prescribed by these rules. Defenses, objections, issues, or requests which are capable of determination without trial on the merits shall be asserted or made before trial by a motion to dismiss or to grant appropriate relief.

Comment—Rule 10

See comment following Rule 10.04.

Rule 10.02 Motions Attacking Jurisdiction of the Court in Misdemeanor Cases

A motion to dismiss for want of personal jurisdiction shall not be made until after a complaint is filed and a not guilty plea entered unless the motion is heard and determined summarily. Notice of such a motion shall be given either orally on the record in court or in writing to the prosecution. Such notice shall be given no more than seven (7) days after entry of the not guilty plea or any challenge to the personal jurisdiction of the court is waived unless the court for good cause shown grants relief from the waiver. The motion shall be served, heard and determined.

Comment—Rule 10

See comment following Rule 10.04.

Rule 10.03 Waiver

The motion shall include all defenses, objections, issues and requests then available to the moving party. Failure to include any of them in the motion constitutes a waiver thereof, but the court for good cause shown may grant relief from the waiver. However, lack of jurisdiction over the offense or the failure of the indictment or complaint to charge an offense shall be noticed by the court at any time during the pendency of the proceeding. The defendant does not waive any defenses or objections by including them in any motion with other defenses, objections or issues.

Comment—Rule 10

See comment following Rule 10.04.

Rule 10.04 Service of Motions; Hearing Date

Subd. 1. Service. In felony and gross misdemeanor cases, motions shall be made in writing and served upon opposing counsel not later than three (3) days before the Omnibus Hearing unless the court for good cause shown permits the motion to be made and served at a later time.

In misdemeanor cases, except as otherwise permitted by Rule 10.04, subd. 2, motions shall be made in writing and along with any supporting affidavits shall be served upon opposing counsel at least three (3) days before they are to be heard and no more than thirty (30) days after the arraignment unless the court for good cause shown permits the motion to be made and served at a later time.

Subd. 2. Hearing Date. In felony and gross misdemeanor cases, unless the motion is served after the Omnibus Hearing, it shall be heard at that hearing and shall be determined as provided by Rule 11.07.

In misdemeanor cases, if a pretrial conference is held, the motion shall be heard there unless the court directs otherwise for the purpose of hearing witnesses or for other good cause. If the motion is not heard at a pretrial conference, it shall be heard immediately prior to trial, provided that the court may upon agreement by the prosecutor and defense counsel summarily hear and determine the motion at arraignment. If the motion is heard at the arraignment, it need not be in writing, but a record shall be made of the proceedings and in the court's discretion witnesses may be called. The motion shall be determined before trial as provided by Rule 12.07.

Comment—Rule 10

Under Rule 10.01 the prosecution's pleadings consist of the indictment, complaint or tab charge. (The filing of a complaint does not, however, preclude an indictment (Rule 17.01).) The complaint continues to be the accusatory pleading for misdemeanors and also takes the place of the information (Minn. Stat. § 628.29 (1971)) for felonies and gross misdemeanors.

As provided by Rule 14 the defendant's pleadings are the pleas of guilty, not guilty, not guilty by reason of mental illness or mental deficiency, and double jeopardy, or that prosecution is barred by Minn. Stat. § 609.035 (1971). The entry of any of these pleas does not relieve the defendant of the requirements of Rule 9.02, subd. 1(3)(a) for service of notice of the defenses on which the defendant intends to rely. Rule 14 adopts the pleas provided by Minn. Stat. § 630.28 except for the bar of § 609.035, and except that the plea of not guilty by reason of mental illness or deficiency is added for the purposes of Rule 20.02 governing the procedures upon a defense of mental illness or mental deficiency.

That portion of Rule 10.01 providing that all pre-trial defenses, objections, and requests, determinable without trial on the merits, shall be asserted by motion to dismiss or to grant appropriate relief is taken from F.R.Crim.P. 12. The motion to dismiss or to grant appropriate relief will take the place of the demurrer (Minn. Stat. §§ 630.22, 630.23 (1971)) and motion to quash or set aside the indictment (Minn. Stat. § 630.18 (1971)). (See also, Rules 18.02, subd. 2; 17.06, subd. 2). The rule does not require pre-trial motions to be made before a plea is entered.

Rule 5.04, subd. 5 abolishes special appearances as the method for challenging the personal jurisdiction of the court and Rule 10.02 establishes a different procedure for making such a challenge. As to the basis for such a challenge see City of St. Paul v. Webb, 256 Minn. 210, 97 N.W.2d 638 (1959).

As a general rule under Rule 10.02 no challenge to the personal jurisdiction of the court may be made in a misdemeanor case until after a complaint has been filed. Therefore, a defendant who has been tab charged, must first demand a complaint under Rule 4.02, subd. 5(3) before raising the jurisdictional challenge. If no complaint is issued, the charge must be dismissed under Rule 4.02, subd. 5(3). If a complaint is issued, it will often make any possible challenge moot, since a valid complaint would give the court jurisdiction even if the arrest was illegal. See City of St. Paul v. Webb, supra. Once the complaint is issued, the jurisdictional challenge becomes a question of the sufficiency of the complaint.

Rule 10.02 also provides that a motion to dismiss for want of personal jurisdiction shall be made after entry of a not guilty plea, and the entry of that plea does not waive the jurisdictional challenge. This reverses prior Minnesota case law providing that any plea waived a challenge to the court's jurisdiction. See State v. Stark, 288 Minn. 286, 179 N.W.2d 597 (1970); State v. Mastrian, 285 Minn. 51, 171 N.W.2d 695 (1969); State v. Burch, 285 Minn. 300, 170 N.W.2d 543 (1969). But see also State v. Harbitz, 293 Minn. 224, 198 N.W.2d 342 (1972) where the defendant following a trial on the merits was permitted to challenge on appeal the trial court's denial of the defendant's pretrial motion to quash an improper indictment.

To initiate the challenge to the court's personal jurisdiction, notice must be given that a motion to dismiss for want of personal jurisdiction will be made. This notice must be given no more than 7 days after entry of the not guilty plea or the challenge is waived unless the court for good cause shown grants relief from the waiver. The notice may be given either orally in court or in writing directly to the prosecution. The challenge then proceeds as in any other motion to dismiss under Rule 10.04. Therefore, under Rule 10.04, subd. 1, a written motion together with any necessary affidavits must be served at least three days before the motion is to be heard and no more than 30 days after the arraignment. Under Rule 10.04, subd. 2 if a pretrial is held, the motion is normally heard there based on affidavits if available. If it is necessary to hear testimony on the matter, or for other good cause, the motion need not be heard at the pretrial. If the motion is not heard at the pretrial, it will be heard immediately prior to trial when any necessary witnesses will most likely be present.

If the defendant's motion to dismiss is denied, Rule 17.06, subd. 4(1) provides that the defendant may continue to raise the jurisdictional issue on direct appeal if convicted following a trial. This procedure avoids the necessity of seeking review by an extraordinary writ which oftentimes would delay a trial otherwise ready to proceed. This procedure reverses prior case law. See State v. Stark, supra.

Rule 10.03 providing for waiver of defenses, objections, and requests not included in a motion under Rule 10.01 and then available--except lack of jurisdiction or failure to charge an offense (See also Minn. Stat. § 630.27 (1971).)--is based on ABA Standards, Discovery and Procedure Before Trial, 5.3(b) (Approved Draft, 1970) and substantially follows the language of F.R.Crim.P. 12(b)(2).

The effect of a determination of a motion to dismiss under this rule is covered by Rule 17.06, subd. 4.

That portion of Rule 10.03 providing that the defendant does not waive defenses and objections by including them with other defenses and objections is based on Minn.R.Civ.P. 12.02.

Under Rule 10.04, subd. 1 and subd. 2, the pre-trial motions shall be in writing and shall be served upon opposing counsel not later than three (3) days before the Omnibus Hearing to be held under Rule 11 (unless the time is extended for good cause) in order that the issues raised by the motion may be heard at that hearing as provided by Rule 11.03. Rule 10.04, subd. 1 should not prevent the court from hearing at the Omnibus Hearing on the court's initiative (See Rule 11.04.) those issues which first appear or arise at that time if the parties do not need additional time to prepare.

Under Rule 10.04, subd. 2, pre-trial motions heard at the Omnibus Hearing and those heard afterward shall be determined by the time as provided by Rule 11.07, which requires the Omnibus Hearing to be completed and all issues decided within 30 days after the defendant's appearance under Rule 8 unless a later time is justified by good cause related to the particular case. In misdemeanor cases, under Rule 10.04, subd. 2, pre-trial motions shall be determined as provided by Rule 12.07.

Rule 10.04, subd. 2 also provides in misdemeanor cases an alternative method for disposing of a motion to dismiss (including a motion to dismiss for want of personal jurisdiction) at the time of arraignment. If agreed to by the prosecutor and defense counsel, the court may summarily hear and determine a motion to dismiss at the arraignment. In such cases the motion need not be in writing, but a record shall be made of the proceedings and, in the court's discretion, witnesses may be called. For those cases in which there is no dispute over the facts, and the law can be quickly and adequately argued, this alternative procedure could provide an immediate disposition avoiding the delay and expense of further court appearances.

Rule 11. Omnibus Hearing in Felony and Gross Misdemeanor Cases

If the defendant does not plead guilty at the initial appearance before the district court following a complaint or, for a designated gross misdemeanor as defined by Rule 1.04(b), following a tab charge, a hearing shall be held as follows:

Rule 11.01 Place of Hearing

The hearing shall be held in the district court in the judicial district wherein the alleged offense was committed.

Comment—Rule 11

Rule 11.02 Hearing on Evidentiary Issues

Subd. 1. Evidence. If the defendant or prosecution has demanded a hearing on either of the issues specified by Rule 8.03, the court shall hear and determine them upon such evidence as may be offered by the prosecution or the defense. If either party offers into evidence a videotape or audiotape exhibit, that party may also provide to the court a transcript of the proposed exhibit which will be made a part of the record.

Subd. 2. Cross-Examination. Upon such hearing, the defendant and the prosecution may cross-examine the other's witnesses.

Comment—Rule 11

Rule 11.03 Motions

The court shall hear and determine all motions made by the defendant or prosecution, including a motion that there is an insufficient showing of probable cause to believe that the defendant committed the offense charged in the complaint, and receive such evidence as may be offered in support or opposition. Each party may cross-examine any witnesses produced by the other. A finding by the court of probable cause shall be based upon the entire record including reliable hearsay in whole or in part. Evidence considered on the issue of probable cause shall be subject to the requirements of Rule 18.06, subd. 1.

Comment—Rule 11

Rule 11.04 Other Issues

The Omnibus Hearing may include a pretrial dispositional conference to determine whether the case can be resolved without scheduling it for trial. The court shall ascertain any other constitutional, evidentiary, procedural or other issues that may be heard or disposed of before trial and such other matters as will promote a fair and expeditious trial, and shall hear and determine them, or continue the hearing for that purpose as permitted by Rule 11.07.

If the prosecution has given notice under Rule 7.02 of intention to offer evidence of additional offenses, upon motion a hearing shall be held to determine their admissibility under Rule 404(b) of the Minnesota Rules of Evidence and whether there is clear and convincing evidence that defendant committed the offenses.

If the defendant intends to offer evidence of a victim's previous sexual conduct in a prosecution for violation of Minn. Stat. § 609.342 to 609.346, a motion shall be made pursuant to the procedures prescribed by Rule 412 of the Minnesota Rules of Evidence.

Comment—Rule 11

Rule 11.05 Amendment of Complaint

The complaint may be amended as prescribed by these rules.

Comment—Rule 11

Rule 11.06 Pleas

At the hearing the defendant may be permitted to plead to the offense charged in the complaint or to a lesser included offense, or an offense of lesser degree as permitted by Rule 15.

Comment—Rule 11

Rule 11.07 Continuances; Determination of Issues

Upon motion of the prosecuting attorney or the defendant or upon the court's initiative, the court may continue the hearing or any part thereof from time to time as may be necessary for good cause related to the particular case. All issues presented at the Omnibus Hearing shall be determined within 30 days after the defendant's appearance under Rule 8 unless a later determination is required for good cause related to the particular case. When issues are determined, the court shall make appropriate findings in writing or orally on the record. The issues presented at the Omnibus Hearing shall be consolidated for hearing except as otherwise permitted by these rules.

Comment—Rule 11

Rule 11.08 Record

Subd. 1. Recording. A verbatim record of the proceedings shall be made.

Subd. 2. Transcript. Upon timely application to the reporter, counsel for the defendant or for the prosecution shall be furnished with a transcript of the proceedings upon the following conditions:

(a) If the transcript is to be furnished to defense counsel, the costs thereof shall be prepaid except when the defendant is represented by the public defender or assigned counsel, or when the defendant makes a sufficient affidavit of inability to pay or secure the costs and the court orders that the defendant be supplied with the transcript at the expense of the appropriate governmental unit.

(b) The prosecution shall be furnished with the transcript without prepayment of costs.

Subd. 3. Filing. The record and all papers and exhibits in the proceeding shall be filed or placed in the custody of the clerk of the court. Upon order of the court any exhibit may be returned to the party producing it.

Comment—Rule 11

Rule 11.09 [Deleted.]

Rule 11.10 Plea; Trial Date

If the defendant is not discharged the defendant shall plead to the complaint or be given additional time within which to plead. If the defendant so requests, the court shall allow the defendant at the Omnibus Hearing to enter a plea, including a not guilty plea, even if the Omnibus Hearing is continued or Omnibus Hearing issues are still pending for decision by the court. The entry of a plea other than guilty in that situation does not waive any pending jurisdictional or other issues that the defendant may have raised for determination by the court at the Omnibus Hearing. If the defendant enters a plea other than guilty, a trial date shall then be set. A defendant shall be tried as soon as possible after entry of a plea other than guilty. On demand made in writing or orally on the record by the prosecuting attorney or the defendant, the trial shall be commenced within sixty (60) days from the date of the demand unless good cause is shown upon the prosecuting attorney's or the defendant's motion or upon the court's initiative why the defendant should not be brought to trial within that period. The time period shall not begin to run earlier than the date of the plea other than guilty. If trial is not commenced within 120 days after such demand is made and such a plea is entered, the defendant, except in exigent circumstances, shall be released subject to such nonmonetary release conditions as may be required by the court under Rule 6.01, subd. 1.

Comment—Rule 11

Rule 11.11 Exclusion of Witnesses

Before or during any Omnibus or other pretrial hearing or proceeding, witnesses may be sequestered or excluded from the courtroom, prior to their appearance, in the discretion of the court.

Comment—Rule 11

If a defendant does not plead guilty at the initial appearance before the district court under Rule 8, the Omnibus Hearing provided by Rule 11 shall be held. The initial appearance may be continued, and if the defendant does not then plead guilty, the Omnibus Hearing shall be held as provided by the rule.

The Omnibus Hearing provided by this rule is divided into three parts: (1) the Rasmussen hearing (Rule 11.02); (2) the hearing of pre-trial motions of the defendant and prosecution (Rule 11.04); (3) the hearing on other pre-trial issues brought up on the court's initiative (Rule 11.04). The hearings on any of these parts may be combined and heard simultaneously (Rule 11.07).

The current statutory hearing on probable cause has been replaced under these rules by a motion to dismiss the complaint for lack of probable cause which is to be made in accordance with Rule 10 and heard at the Omnibus Hearing pursuant to Rule 11.03. If such a motion is made, the court shall base its probable cause determination upon the evidence set forth in Rule 18.06, subd. 1. In State v. Florence, 306 Minn. 442, 239 N.W.2d 892 (1976), the Supreme Court discussed the type of evidence that may be presented and considered on a motion to dismiss the complaint for lack of probable cause. Nothing in that case or in the rule prohibits a defendant from calling any witness to testify for the purpose of showing an absence of probable cause. In determining whether to dismiss a complaint under Rule 11.03 for lack of probable cause, the trial court is not simply reassessing whether or not probable cause existed to warrant the arrest. Rather, under Florence the trial court must determine based upon the facts disclosed by the record whether it is fair and reasonable to require the defendant to stand trial.

If the defendant does not plead guilty upon the initial appearance in the district court under Rule 8 following a complaint or, where permitted, a tab charge or upon arraignment in the district court under Rule 19.04, subd. 5 following an indictment, the Omnibus Hearing (See ABA Standards, Discovery and Procedure Before Trial, 1.1, 5.1-5.3 (Approved Draft, 1970)) shall be held as provided by Rule 11 not later than twenty-eight (28) days after the initial appearance or arraignment, unless the period is extended for good cause related to the particular case (Rules 8.04; 19.04, subd. 5).

By that time, the prosecution will have given the Rasmussen and Spreigl notices (Rules 7.01; 7.02; 19.04, subd. 6(1) and (2)); the Rasmussen hearing will have been either waived or demanded (Rule 8.03); the discovery required without order of court will have been completed (Rules 7.03; 19.04, subd. 7; 9.01, subd. 1; 9.02, subd. 1); and pre-trial motions will have been served (Rules 10.04, subd. 1; 9.01, subd. 2; 9.02, subd. 2; 9.03, subd. 8; 18.02, subd. 2; 18.05, subds. 1 and 2; 17.03, subds. 3 and 4; 17.04; 17.06, subd. 3; 20.01, subd. 2; 20.03, subd. 1). (In the case of an indictment the pre-trial motions should include any motion to suppress based on the disclosures contained in the Rasmussen notice under Rule 19.04, subd. 6(1).)

The purpose of the Omnibus Hearing is to avoid a multiplicity of court appearances and hearings upon these issues with a duplication of evidence and to combine all of the issues that can be disposed of without trial into one appearance and hearing. (See ABA Standards, Discovery and Procedure Before Trial, 1.1, 5.3 (Approved Draft, 1970).) Early resolution of motions provides for more efficient handling of criminal cases at subsequent stages. This includes suppression motions, evidentiary motions, and nonevidentiary motions such as motions to disclose the identity of an informant or to consolidate or sever trials or co-defendants. Early resolution of these motions also helps to focus the lawyers' attention on a smaller number of witnesses, including law enforcement officers and victims of crimes. When such motions are resolved early, uncertainty with respect to many significant issues in a case are removed. This early resolution of motions also permits timely and meaningful pretrial dispositional conferences at which time the parties can engage in significant plea agreement discussions. Setting a firm trial date and commencing a trial on that date are also important factors in minimizing delays. Firm trial dates are most likely to be found in courts that achieve early resolution of pretrial motions. Achieving early resolution of pretrial motions requires the cooperation of the court, the local bar and law enforcement agencies. When courts take early control of criminal cases with meaningful pretrial events it benefits all people within the criminal justice system and serves the efficient administration of justice.

If a Rasmussen hearing has been demanded under Rule 8.03 or other similar evidentiary issues presented by motion or otherwise (Rules 11.02, subd. 1; 11.03; 11.04), they should be combined for hearing if possible (Rule 11.07).

Rule 11.02 covers the Rasmussen hearing demanded under Rule 8.03 (or required by a motion to suppress in the case of an indictment). Upon the Rasmussen hearing under Rule 11.02 both parties may offer evidence and cross-examine the other's witnesses. The rule leaves to judicial interpretation the consequences of the defendant's testimony at a Rasmussen or similar evidentiary hearing, that is, whether it may be used against the defendant at trial substantively (See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)) or by way of impeachment (cf. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971)).

Rule 11.02, subd. 1 permits any party offering a videotape or audiotape exhibit to also provide to the court a transcript of the tape. This rule does not govern whether any such transcript is admissible as evidence in the case. That issue is governed by Article 10 of the Minnesota Rules of Evidence. However, upon an appeal of the proceedings, the transcript of the exhibit will be part of the record if the other party stipulates to the accuracy of the tape transcript as provided in Rule 28.02, subd. 9.

In State v. Scales, 518 N.W.2d 587 (Minn. 1994), the court held that all custodial interrogation including any information about rights, any waiver of those rights, and all questioning must be electronically recorded in a place of detention and, if feasible, in any other place. Any "substantial" violation of this recording requirement requires suppression of any statements thereby obtained.

By Rule 11.03 the court shall also hear all motions made by the parties under Rule 10 (See also Rules 9.01, subd. 2; 9.02, subd. 2; 9.03, subd. 5; 9.03, subd. 8; 18.02, subd. 2; 18.05, subd. 1 and subd. 2; 17.03, subd. 3 and subd. 4; 17.04; 17.06; 17.06, subd. 3; 20.01, subd. 2; 20.03, subd. 1.) Motions not made upon grounds then known and available to the parties are waived, except lack of jurisdiction or failure of the complaint or indictment to state an offense, unless the court grants an exception to the waiver (Rule 10.03).

Rule 11.03 specifically permits a motion to dismiss a complaint for lack of probable cause, but does not permit a motion to dismiss an indictment upon this ground. See Rule 19.04, subd. 5.

The court shall also on its initiative under Rule 11.04 ascertain and hear any other issues that can be heard and disposed of before trial and any other matters that would promote a fair and expeditious trial. This would include requests or issues arising respecting discovery (Rule 9), evidentiary issues arising from the Spreigl notice (Rules 7.01, 19.04, subd. 6(2)), or other evidentiary issues, and expressly permits a pretrial dispositional conference if the court considers it necessary. (See F.R.Crim.P. 17.1.) Many judicial districts already make widespread and effective use of pretrial dispositional conferences to resolve cases at the earliest possible time. If such resolution is not possible, the conference may be used to determine the nature of the case so that further hearings or trial may be scheduled as appropriate. The use of such dispositional conferences, is commendable and highly recommended by the Advisory Committee. To assure that the pretrial dispositional conference portion of the Omnibus Hearing is meaningful, trial courts should insist on timely discovery by the parties before the date of the Omnibus Hearing as required by Rule 9.01, subd. 1. The Advisory Committee also strongly commends the practice, now in effect in some counties, of preparing the Sentencing Guidelines Worksheet prior to the Omnibus Hearing. This may be done in connection with a pre-release investigation under Rule 6.02, subd. 3 and later may be included with any presentence investigation report required under Rule 27.03, subd. 1.

By Rule 11.05 the complaint may be amended at the Omnibus Hearing as provided by Rule 17.05. (See also Rules 3.04, subd. 2; 17.06, subd. 4.)

One of the issues that should be determined at the Omnibus Hearing is the admissibility of the testimony, of any proposed witness who has been subjected to a hypnotic interview concerning the facts of the case. Ordinarily under State v. Mack, 292 N.W.2d 764 (Minn.1980) the testimony of a previously hypnotized witness concerning the subject matter adduced at a pretrial hypnotic interview may not be admitted in a criminal proceeding. Such testimony may be elicited only to the extent that it covers matters previously and unequivocally disclosed by the witness to the authorities before the hypnosis.

Under State v. Wenberg, 289 N.W.2d 503 (Minn.1980), if the prosecutor intends to impeach the defendant or any defense witness with evidence of prior convictions, the prosecutor must request a pretrial hearing on the admissibility of such evidence. If possible this issue should be heard at the Omnibus Hearing. See Rule 9.01, subd. 1(5) as to the reciprocal duties of the prosecutor and defense counsel to disclose the criminal records of the defendant and any defense witnesses. As to the standards for determining the admissibility of the impeachment evidence see Rule 609 of the Minnesota Rules of Evidence, State v. Jones, 271 N.W.2d 534 (Minn.1978), and State v. Brouillette, 286 N.W.2d 702 (Minn.1979).

If requested by motion under Rule 10, a hearing on the admissibility of evidence of additional offenses shall be held as part of the Omnibus Hearing. Before such evidence may be considered admissible it must be clear and convincing. Additionally, according to State v. Billstrom, 276 Minn. 174, 149 N.W.2d 281 (1967) such evidence is admissible only if the prosecution's case is otherwise weak. Because it may not be possible to determine the strength of the prosecution's case until trial, it may be necessary to continue final determination of this issue under Rule 11.07 until that time. The court, however, should determine at the Omnibus Hearing whether the evidence to be presented is clear and convincing. If it does not meet that standard or the other requirements of Rule 404(b) of the Minnesota Rules of Evidence then the court should determine before trial that the evidence is inadmissible. Unless a later determination is justified by good cause related to the particular case, Rule 11.07 requires that all issues presented to the court at the Omnibus Hearing must be decided within 30 days after the defendant's initial appearance before the court under Rule 8.

Under Rule 11.06 the defendant at the Omnibus Hearing may plead to the complaint or indictment or to a lesser or different offense as provided by Rules 14 and 15. See Rules 15.07 and 15.08 as to the standards and procedure for entering a plea to a lesser or a different offense.

By Rule 11.07 the Omnibus Hearing or any part thereof may be continued if necessary to dispose of the issues presented. At any dispositional conference portion of an Omnibus Hearing it is permissible under Rule 11.07 to continue the evidence suppression portion of the Omnibus Hearing until the day of trial if the court determines that resolution of the evidentiary issues would not dispose of the case. Such a continuance would be "for good cause related to the particular case" under Rule 11.07 and under that rule the court could enter an order continuing both the Omnibus Hearing and the court's decision on the evidentiary issues until the day of trial. Other grounds may also support such a continuance and as long as the court finds that the good cause is related to the particular case the continuance is justified under the rule. However, the court should not as a general rule or practice bifurcate the Omnibus Hearing or delay the hearing or any part of it until the day of trial when that is not justified by the circumstances of the particular case. To do so violates the purpose of these rules. See Rule 1.02 and the comments thereto. All issues presented at the Omnibus Hearing shall be determined within 30 days after the defendants initial appearance under Rule 8 unless a later determination is required for good cause related to the particular case. (See also Rule 10.04, subd. 2). See Minn. Stat. § 611A.033 regarding the prosecutor's duties under the Victim's Rights Act to make reasonable efforts to provide advance notice of any change in the schedule of court proceedings. This would include the Omnibus Hearing as well as trial or any other hearing.

Rule 11.07 requires appropriate findings upon the determinations made on the issues presented at the Omnibus Hearing in order that the basis for the determinations may clearly appear.

Rule 11.08, subd. 1, requires that a record of the Omnibus Hearing shall be made, and Rule 11.08, subd. 2 prescribes the circumstances in which a transcript may be furnished to the parties. The verbatim record required by Rule 11.08, subd. 1, may be made by a court reporter or recording equipment.

The intent of the Omnibus Hearing rules is that all issues that can be determined before trial shall be heard at the Omnibus Hearing and decided before trial. Consequently, when the Omnibus Hearing is held before a judge other than the trial judge, the trial judge, except in extraordinary circumstances will adhere to the findings and determinations of the Omnibus Hearing judge. See State v. Coe, 298 N.W.2d 770 (Minn.1980) and State v. Hamling, 314 N.W.2d 224 (Minn.1982), where this issue was discussed, but not decided.

A defendant who is not discharged following the Omnibus Hearing shall plead to the indictment or complaint in the district court or be given additional time within which to plead. If the defendant pleads not guilty, not guilty by reason of mental illness or mental deficiency, or double jeopardy or that prosecution is barred by Minn. Stat. § 609.035, a trial date shall be set. (Rule 11.10.) If the Omnibus Hearing or any part of it is continued pursuant to Rule 11.07, Rule 11.10 further provides that the defendant may enter a plea including a not guilty plea at the first Omnibus Hearing appearance. This assures that if a defendant wishes to demand a speedy trial under Rule 11.10, the running of the time limit for that will not be delayed by continuing the plea until the continued Omnibus Hearing. If the trial date is continued, see Minn. Stat. § 611A.033 regarding the prosecuting attorney's duties under the Victim's Rights Act to make reasonable efforts to provide advance notice of the continuance.

Rule 11.10 provides that a defendant shall be brought to trial within 60 days after demand therefor is made by the prosecuting attorney or defendant, unless good cause is shown for a delay, but regardless of a demand, the defendant shall be tried as soon as possible. (Rule 11.10 supersedes Minn. Stat. § 611.04 (1971) requiring the defendant to be brought to trial at the next term of court.) See Minn. Stat. § 611A.033 regarding the prosecutor's duties under the Victim's Rights Act in relation to speedy trial demands.

For good cause the trial may be postponed beyond the 60-day time limit upon request of the prosecuting attorney or the defendant or upon the court's initiative. Good cause for the delay does not include court calendar congestion unless exceptional circumstances exist. See McIntosh v. Davis, 441 N.W.2d 115 (Minn.1989). Even if good cause exists for postponing the trial beyond the 60-day time limit, the defendant, except in exigent circumstances, must be released, subject to such nonmonetary release conditions as may be required by the court under Rule 6.02, subd. 1, if trial has not yet commenced within 120 days after the demand is made and the not guilty plea entered. Other sanctions for violation of these speedy trial provisions are left to case law. See State v. Kasper, 411 N.W.2d 182 (Minn.1987) and State v. Friberg, 435 N.W.2d 509 (Minn.1989).

Rule 11.10 does not attempt to set arbitrary time limits (other than those resulting from the demand), because they would have to be circumscribed by numerous specific exclusions (See ABA Standards, Speedy Trial, 2.3 (Approved Draft, 1968)) which are covered in any event by the more general terms of the rule. (See ABA Standards, Speedy Trial, 2.3(h) (Approved Draft, 1968).)

Rule 11.10 does not specify the consequences of a failure to bring the defendant to trial within the time limits set by the rule. (This differs from ABA Standards, Speedy Trial, 4.1, Pre-Trial Release, 5.10 (Approved Drafts, 1968) in which the consequences are set forth.)

The consequences and the time limits beyond which a defendant is considered to have been denied the constitutional right to a speedy trial are left to judicial decision. (See Barker v. Wingo, 407 U.S. 514 (1972).) The constitutional right to a speedy trial is triggered not when the plea is entered but when a charge is issued or an arrest is made. State v. Jones, 391 N.W.2d 224 (Minn. 1986). The existence or absence of the demand under Rule 11.10 provides a factor that may be taken into account in determining whether the defendant has been unconstitutionally denied a speedy trial. (See Barker v. Wingo, supra.)

Under Rule 11.10 the time period following the demand does not begin to run earlier than the date of the plea of not guilty, not guilty be reason of mental illness or mental deficiency, or double jeopardy or that prosecution is barred by Minn. Stat. § 609.035. However, under Rule 11.10, the defendant may insist on the right to enter such a plea at the first Omnibus Hearing appearance even if the hearing is continued. This will assure that a defendant can get the speedy trial time limit running even if some Omnibus Hearing issues are continued for later decision by the court. The plea other than guilty was selected as the crucial date because the defendant is not required to so plead until at or after the Omnibus Hearing (Rules 8.03; 11.06; 11.10) and by that time all discovery and pre-trial proceedings will have been substantially completed. If demand is made before such plea, the 60-day period starts to run upon entry of the plea. It is contemplated that when the pre-trial proceedings have been completed, the court will require the defendant to enter a plea, if the defendant has not already done so, in order that the defendant cannot delay the trial by intentionally delaying the plea. (Rule 11).

Rule 12. Pretrial Conference and Evidentiary Hearing in Misdemeanor Cases

Rule 12.01 Pretrial Conference

A pretrial conference may be held in such cases and at such time as the court orders to consider the motions and other issues referred to in Rules 12.02 and 12.03. Such motions and other issues shall be heard immediately prior to trial whenever there has been no pretrial conference or whenever the court has so ordered for the purpose of hearing witnesses or for other good cause.

Comment—Rule 12

Rule 12.02 Motions

The court shall hear and determine all motions made by the defendant or prosecution and receive such evidence as may be offered in support or opposition. The defendant may offer evidence in defense, and the defendant and prosecution may cross-examine the other's witnesses.

Comment—Rule 12

Rule 12.03 Other Issues

The court shall ascertain any other constitutional, evidentiary, procedural or other issues that may be heard or disposed of before trial and such other matters as will promote a fair and expeditious trial, and shall hear and determine them, or continue the hearing for that purpose.

Comment—Rule 12

Rule 12.04 Hearing on Evidentiary Issues

Subd. 1. Evidence. If the defendant or the prosecution has demanded a hearing on the issue specified by Rule 7.01, the court shall hear and determine the issue upon such evidence as may be offered by the prosecutor or the defense. If either party offers into evidence a videotape or audiotape exhibit, that party may also provide to the court a transcript of the proposed exhibit which will be made a part of the record.

Subd. 2. Cross-Examination. Upon such hearing, the defendant and the prosecution may cross-examine the other's witnesses as to the evidentiary and identification issues raised as specified in Rule 7.01.

Subd. 3. Time. Any evidentiary hearing shall be held separately from the trial when the trial is to be before a jury and in the discretion of the court may be held either separately or as part of the trial when the trial is to the court. Any separate hearing shall be held immediately prior to trial unless the court for good cause otherwise orders.

Comment—Rule 12

Rule 12.05 Amendment of Complaint

The complaint, if any, may be amended at the pretrial conference as prescribed by these rules.

Comment—Rule 12

Rule 12.06 Pleas

At the pretrial conference the defendant may be permitted to withdraw any prior plea and to enter a plea of guilty to the offense charged or such other different offense as permitted in Rule 15.08.

Comment—Rule 12

Rule 12.07 Continuances; Determination of Issues

The court may continue the pretrial conference as necessary and for the purpose of taking testimony or other good cause, and may continue the determination of any issues or motions until the day of trial. All motions and issues including those raised at the evidentiary hearing shall be determined before trial begins unless otherwise agreed to by the prosecution and the defense. When the motions and issues are determined, the court shall make appropriate findings in writing or orally on the record.

Comment—Rule 12

Rule 12.08 Record

Subd. 1. Record. Unless waived by counsel, a verbatim record of the proceedings at the evidentiary hearing shall be made.

Subd. 2. Transcript and Filing. Transcript and filing shall be governed by the provisions of Rule 11.08, subd. 2 and subd. 3.

Comment—Rule 12

There will be no Omnibus Hearing required for misdemeanors (see Rule 11). There is no necessity for a probable cause determination for misdemeanors. A Rasmussen hearing usually can be conducted on the same day as the trial.

The multiplicity of court appearances and hearings which prompted the establishment of an Omnibus

Hearing for felonies and gross misdemeanors (see the comments to Rule 11) is not a problem in misdemeanor cases. Thus, no Omnibus Hearing is necessary. Rather, this rule prescribes that a pre-trial conference may be held in such cases and at such times as the court may order and any Rasmussen hearing will ordinarily be conducted immediately prior to trial.

Trial courts are encouraged to hold pretrial conferences, especially in jury cases. Since a jury trial would normally last a day or longer, requiring the investment of time and expense, a pretrial conference which may settle the case without a trial, appears justified. If a pretrial conference is scheduled, it should be held at such times as the court orders and ordinarily the courts should order it held before the day of trial so that witnesses and jurors will be spared the inconvenience of appearing for trial in a case that is settled. At the conference the court will consider the same matters upon which an Omnibus Hearing must be held in felony and gross misdemeanor cases (see Rule 11). Under Rule 12.02 the court should hear and determine all motions made under Rule 10 (see also Rules 7.03; 17.03, subds. 3 and 4; 17.04; 17.06; 17.06, subd. 3; and 17) by the prosecutor or the defendant and receive any evidence subject to cross-examination by the other party, unless the court grants an exception to the waiver (Rule 10.03). Motions that are not made upon grounds then known and available to the parties are waived, with the exception of those for lack of jurisdiction over the offense or failure of the complaint to state an offense. At the conference the court on its initiative under Rule 12.03 shall also ascertain and hear any other issues that can be heard and disposed of before trial. This would include requests or issues arising from the Spreigl notice (Rule 7.02), and any other matters which would promote a fair and expeditious trial. If no pretrial conference is held, any motions and issues under Rules 12.02 and 12.03 which arise should be heard (Rule 12.01) and determined (Rule 12.07) immediately prior to trial.

Under State v. Wenberg, 289 N.W.2d 503 (Minn.1980), if the prosecutor intends to impeach the defendant or any defense witness with evidence of prior convictions, the prosecutor must request a pretrial hearing on the admissibility of such evidence. See Rule 609 of the Minnesota Rules of Evidence, State v. Jones, 271 N.W.2d 534 (Minn.1978), and State v. Brouillette, 286 N.W.2d 702 (Minn.1979) as to the standards for determining the admissibility of such impeachment evidence.

If requested by motion under Rule 10, a hearing on the admissibility of evidence of additional offenses shall be held pursuant to Rule 12.03. Before such evidence may be considered admissible it must be clear and convincing. Additionally, according to State v. Billstrom, 276 Minn. 174, 149 N.W.2d 281 (1967) such evidence is admissible only if the prosecution's case is otherwise weak. Because it may not be possible to determine the strength of the prosecution's case until trial, it may be necessary to continue final determination of this issue under Rule 12.07 until that time. The court, however, should determine before trial whether the evidence to be presented is clear and convincing. If it does not meet that standard or the other requirements of Rule 404(b) of the Minnesota Rules of Evidence then the court should determine before trial that the evidence is inadmissible. Unless it is not possible to do so, Rule 12.07 requires that all issues presented to the court under Rule 12 must be decided before trial.

Either at or before a pretrial conference, or at least seven days before trial if no conference is held, the prosecutor must serve the Rasmussen and Spreigl notice (Rules 7.01 and 7.02). Any other pretrial motions should be served at least three days before the conference or at least three days before trial if no conference is held (Rules 7.03; 10.04, subd. 1; 17.03, subds. 3 and 4; 17.04; 17.06; 17.06, subd. 3; and 17).

Rule 12.04 covers the Rasmussen hearing demanded under Rule 5.04, subd. 4. Under Rule 12.04, subd. 3 any Rasmussen hearing would be held separately from any jury trial, but may be held either separately or as part of the trial when trial is to the court. Any separate hearing should be held immediately prior to trial unless the court for good cause orders that it be held at a different time. This procedure continues substantially the present practice under City of St. Paul v. Page, 285 Minn. 374, 173 N.W.2d 460 (1969).

At the Rasmussen hearing, both parties may offer evidence (Rule 12.04, subd. 2) and cross-examine the other's witnesses (Rule 12.04, subd. 3). The rule leaves to judicial interpretation the consequences of the defendant's testimony at a Rasmussen or similar evidentiary hearing as to whether it can be used against the defendant at trial substantively (see Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)) or by way of impeachment (cf. Harris v. New York, 401 U.S. 222 (1971)).

Rule 12.04, subd. 1 permits any party offering a videotape or audiotape exhibit to also provide to the court a transcript of the tape. This rule does not govern whether any such transcript is admissible as evidence in the case. That issue is governed by Article 10 of the Minnesota Rules of Evidence. However, upon an appeal of the proceedings, the transcript of the exhibit will be part of the record if the other party stipulated to the accuracy of the tape transcript as provided in Rule 28.02, subd. 9.

By Rule 12.05 the complaint may be amended at the pre-trial conference as provided by Rule 17.05 (see also Rules 3.04, subd. 2 and 17.06, subd. 4).

By Rule 12.06 the defendant at the pretrial conference may plead to the complaint or tab charge or to such other different offense as is permitted by Rule 15.08.

Rule 12.07 provides for the continuation of the pretrial conference if necessary to dispose of the issues presented. For the purpose of taking testimony or other good cause the court may continue the determination of issues or motions until the day of trial. Such a continuance, where testimony is required, will save witnesses an additional court appearance where those witnesses would be testifying at trial. Where no pretrial conference is held, any motions raised by the parties shall be heard on the day of the trial (Rule 10.04, subd. 2). All motions and issues including those raised at a separate evidentiary hearing shall be determined before trial begins unless otherwise agreed to by the prosecution and the defense. Findings may be made either in writing or orally on the record.

Rule 12.08, subd. 1 requires that a verbatim record of the evidentiary hearing be made by a court reporter, or recording equipment. Rule 12.08, subd. 2 prescribes the circumstances in which a transcript may be furnished to the parties. The record and all papers shall be filed with the clerk of the court in which the proceedings took place (Rule 12.08, subd. 2).

Rule 13. Arraignment in Felony and Gross Misdemeanor Cases

The arraignment shall be conducted as follows:

Rule 13.01 In Open Court

The arraignment shall be conducted in open court.

Rule 13.02 Right to Counsel

If the defendant other than a corporation appears without counsel, the court shall advise the defendant of the right to counsel, and when required, shall appoint counsel pursuant to Rule 5.02.

Rule 13.03 Copy and Reading of Charges

The defendant shall be provided with a copy of the complaint or indictment if it has not been previously provided. The complaint or indictment shall be read to the defendant unless the reading is waived. For designated gross misdemeanors as defined by Rule 1.04(b) prosecuted by tab charge pursuant to Rule 4.02, subd. 5(3), the tab charge shall be read to the defendant.

Rule 13.04 Plea

The defendant shall be called on to plead or may be given time to plead.

Rule 13.05 Record

A verbatim record of the arraignment shall be made.

Comment—Rule 13

Arraignment as provided by Rule 13 will take place at the appearance of the defendant in the court under Rule 8 following a complaint charging a felony or gross misdemeanor or following entry of a tab charge for a designated gross misdemeanor as defined by Rule 1.04(b) or under Rule 19.04, subd. 4 and subd. 5 following an indictment. At that time the defendant may enter only a guilty plea. If the defendant does not wish to plead guilty, no other plea is to be entered then and the arraignment is continued until the Omnibus Hearing when pursuant to Rule 11.10 the defendant shall plead or be given additional time within which to plead. In the case of a complaint charging a felony or gross misdemeanor, the arraignment in the court under Rule 8.01 shall be held within 14 days after the defendant's initial appearance before a court (Rule 5.03), under Rule 5, and in the case of an indictment, within 7 days after the defendant's first appearance in the district court (Rule 19.04, subd. 1 and subd. 4). Of course the appearances under Rule 5 and Rule 8 could be consolidated pursuant to Rule 5.03 and the arraignment on the complaint or tab charge would then be held at that consolidated appearance.

The requirement of Rule 13.01 that the arraignment shall be conducted in open court is taken from F.R.Crim.P. 10 and follows present Minnesota practice (Minn. Stat. § 630.01 (1971)).

Rule 13.02 providing that the court shall advise the defendant of the right to counsel continues the requirements of Minn. Stat. §§ 611.15, 630.10 (1971).

If the defendant has the right to counsel (See ABA Standards, Providing Defense Services, 4.1 (Approved Draft, 1968); State v. Borst, 278 Minn. 388, 154 N.W.2d 888 (1967)), appears without counsel, and is financially unable to afford counsel, Rule 13.02 requires the court to appoint counsel unless the defendant knowingly and voluntarily waives the right (ABA Standards, Providing Defense Services, 7.1, 7.2 (Approved Draft, 1968)). The waiver shall be in writing (Minn. Stat. § 611.19 (1971); ABA Standards, Providing Defense Services, 7.3 (Approved Draft, 1968)) or under Rule 13.02 may be made orally before the court on the record.

Rule 13.03 requiring that the defendant be provided with a copy of the indictment or complaint and that the indictment or complaint be read to the defendant unless waived continues the practice under Minn. Stat. § 630.11 (1971).

Under Rule 13.04, the defendant shall be called on to plead (See F.R.Crim.P. 10), or shall be given such time as the court determines within which to plead. This follows present Minnesota practice (Minn. Stat. § 630.13 (1971)). If the defendant does not plead guilty, Rules 8.04 and 19.04, subd. 5 provide that an Omnibus Hearing under Rule 11 shall be scheduled within 28 days and 7 days respectively, and the defendant will not be required or permitted to plead earlier than that date.

By Rule 11.10, if the defendant is not discharged following the Omnibus Hearing, the defendant shall plead to the complaint or, when authorized, the tab charge promptly or may be given additional time.

When the defendant pleads not guilty, a trial date shall be set (See Rule 11.10).

When the defendant pleads guilty, the procedure prescribed by Rule 15 shall be followed.

Rule 14. Pleas

Rule 14.01 Pleas Permitted

A defendant may plead as follows:

(a) Guilty.

(b) Not guilty.

(d) Double jeopardy or that prosecution is barred by Minn. Stat. § 609.035 (1971), either of which may be pleaded with or without the plea of not guilty.

Comment—Rule 14

See comment following Rule 14.03.

Rule 14.02 Who May Plead

Subd. 1. By an Individual in Felony and Gross Misdemeanor Cases. A plea to an indictment or complaint or, for a designated gross misdemeanor as defined by Rule 1.04(b), a tab charge by an individual defendant shall be made orally on the record by the defendant in person.

Subd. 2. By an Individual in Misdemeanor Cases. A plea to a complaint or tab charge by an individual defendant shall be made orally on the record or by the petition to plead guilty provided for in Rule 15.03, subd. 2. If the court is satisfied that the defendant has knowingly and voluntarily waived the right to be present, the plea may be entered by counsel.

Subd. 3. By a Corporation. A plea by a corporate defendant shall be made by counsel or a corporate officer, and shall be made orally on the record or in writing.

Subd. 4. Defendant's Refusal to Plead. If the defendant stands mute or refuses to plead, or if the court refuses to accept a plea of guilty, the court shall proceed as if the defendant had entered a plea of not guilty.

If a defendant corporation fails to appear, the court upon proof of the commission of the offense charged may enter judgment of conviction and impose such sentence as may be appropriate.

Comment—Rule 14

See comment following Rule 14.03.

Rule 14.03 Time of Plea

At any time during the proceedings, except as provided by Rule 8.01, a defendant may appear before the court to enter a plea of guilty to the offense charged or to some other offense pursuant to a plea agreement reached under Rule 15.04. To schedule such an appearance, the defendant shall file a written request with the clerk of court indicating the offense to which the defendant wishes to plead guilty. Upon receiving such a request, the clerk shall schedule an appearance before the court at the earliest available date, which date, in any event, shall be not later than fourteen days after the filing of the request. The clerk shall then notify the defendant and the prosecuting attorney of the time and place of such court appearance.

Comment—Rule 14

Rule 14 adopts the pleas provided by Minn. Stat. § 630.28 (1971), and adds the plea of not guilty by reason of mental illness or mental deficiency as defined by Minn. Stat. § 611.026 (1971) with its judicial interpretations, and the plea of the bar provided by Minn. Stat. § 609.035 (1971). Notice of a defense or defenses under Rule 9.02, subd. 1(3)(a) does not obviate the necessity for a plea under Rule 14.

Rule 20.02, subd. 6(2) and (5), governing the procedure upon the defense of mental illness or mental deficiency, contemplate that a defendant shall plead both not guilty and not guilty by reason of mental illness or mental deficiency when intending to put in issue both guilt of the elements of the offense charged and mental responsibility by reason of mental illness or mental deficiency.

A conditional plea of guilty may not be entered whereby the defendant reserves the right to appeal the denial of a motion to suppress evidence or any other pretrial order. State v. Lothenbach, 296 N.W.2d 865 (Minn. 1980). One option, as authorized by Rule 26.01 subd. 3, is to plead not guilty, stipulate the facts, waive the jury trial, and, if there is a finding of guilty, appeal the judgment of conviction. Id. A guilty plea also waives any appellate challenge to an order certifying the defendant as an adult. Waynewood v. State, 552 N.W.2d 718 (Minn. 1996).

Rule 14.02, subd. 1 continues the requirement of Minn. Stat. § 630.28 (1971) that the plea shall be made orally on the record.

Rule 14.02, subd. 2, unlike Minn. Stat. § 630.29, permits a plea of guilty or not guilty to a misdemeanor to be made by counsel, with the permission of the court. Otherwise, the plea shall be made in person except in the case of a corporation. In misdemeanor cases, by Rule 14.02, subd. 2, before accepting such a plea through counsel, the court should determine whether counsel has advised the defendant of the rights and information contained in Rule 15.02, and whether the plea would be acceptable under Rule 15 if the defendant were present personally in court. The petition to plead guilty provided for in Rule 15.03, subd. 2 and in the Appendix B to Rule 15, if properly completed and filed with the court, constitutes a proper plea. The defendant need not be present when it is filed and accepted. See also Rule 26.03, subd. 1(3) (defendant's presence at trial and sentencing) and Rule 27.03, subd. 2 (defendant's presence at sentencing). If the court is satisfied that the defendant has knowingly and voluntarily decided to enter the plea and to waive the right to be present in court, then the court must allow the plea to be entered in the defendant's absence.

By Rule 14.02, subd. 3, a plea by a corporation may be made orally or in writing by counsel or a corporate officer. (See Minn. Stat. § 630.16 (1971).)

Rule 14.02, subd. 3 provides for the procedure when a corporation fails to appear in response to a summons or an order of court or otherwise. (This changes Minn. Stat. § 630.16 (1971).)

Rule 14.02, subd. 4 governing the procedure when a defendant refuses to plead or when the court refuses to accept a plea of guilty follows the substance of Minn. Stat. § 630.34 (1971). The court should not refuse to accept a plea merely because the defendant is not present. The procedure upon a plea of guilty is set forth in Rule 15.

Rule 15. Procedure Upon Plea of Guilty; Plea Agreements; Plea Withdrawal; Plea to Lesser Offense

Rule 15.01 Acceptance of Plea; Questioning Defendant; Felony and Gross Misdemeanor Cases

Before the court accepts a plea of guilty, the defendant shall be sworn and questioned by the court with the assistance of counsel as to the following:

1. Name, age and date and place of birth and whether the defendant is handicapped in communication and, if so, whether a qualified interpreter has been provided for the defendant.

2. Whether the defendant understands the crime charged.

3. Specifically, whether the defendant understands that the crime charged is (name of offense) committed on or about (month) (day) (year) in ________ County, Minnesota (and that the defendant is tendering a plea of guilty to the crime of (name of offense) which is a lesser degree or lesser included offense of the crime charged).

4. a. Whether the defendant has had sufficient time to discuss the case with defense counsel.

b. Whether the defendant is satisfied that defense counsel is fully informed as to the facts of the case, and that defense counsel has represented the defendant's interests and fully advised the defendant.

5. Whether the defendant has been told by defense counsel and understands that upon a plea of not guilty, there is a right to a trial by jury and that a finding of guilty is not possible unless all jurors agree.

6. a. Whether the defendant has been told by defense counsel and understands that there will not be a trial by either a jury or by a judge without a jury if the defendant pleads guilty.

b. Whether the defendant waives the right to a trial.

7. Whether the defendant has been told by defense counsel, and understands that if the defendant wishes to plead not guilty and have a trial by jury or by a judge, the defendant will be presumed to be innocent until guilt is proved beyond a reasonable doubt.

8. a. Whether the defendant has been told by defense counsel, and understands that if the defendant wishes to plead not guilty and have a trial, the prosecutor will be required to have the prosecution witnesses testify in open court in the defendant's presence, and that the defendant will have the right, through defense counsel, to question these witnesses.

b. Whether the defendant waives the right to have these witnesses testify in the defendant's presence in court and be questioned by defense counsel.

9. a. Whether the defendant has been told by defense counsel and understands that if the defendant wishes to plead not guilty and have a trial, the defendant will be entitled to require any defense witnesses to appear and testify.

b. Whether the defendant waives this right.

10. Whether defense counsel has told the defendant and the defendant understands:

a. That the maximum penalty that the court could impose for the crime charged (taking into consideration any prior conviction or convictions) is imprisonment for _____ years.

b. That if a minimum sentence is required by statute the court may impose a sentence of imprisonment of not less than _____ months for the crime charged.

c. that for felony driving while impaired offenses and most sex offenses, a mandatory period of conditional release will be imposed to follow any executed prison sentence, and violating the terms of that conditional release may increase the time the defendant serves in prison.

d. That if the defendant is not a citizen of the United States, a plea of guilty to the crime charged may result in deportation, exclusion from admission to the United States, or denial of naturalization as a United States citizen.

11. Whether defense counsel has told the defendant that the defendant discussed the case with one of the prosecuting attorneys, and that the respective attorneys agreed that if the defendant entered a plea of guilty the prosecutor will do the following: (state the substance of the plea agreement.)

12. Whether defense counsel has told the defendant and the defendant understands that if the court does not approve the plea agreement, the defendant has an absolute right to withdraw the plea of guilty and have a trial.

13. Whether, except for the plea agreement, any policeman, prosecutor, judge, defense counsel, or any other person, made any promises or threats to the defendant or any member of the defendant's family, or any of the defendant's friends, or other persons in order to obtain a plea of guilty.

14. Whether defense counsel has told the defendant and the defendant understands that if the plea of guilty is for any reason not accepted by the court, or is withdrawn by the defendant with the court's approval, or is withdrawn by court order on appeal or other review, that the defendant will stand trial on the original charge (charges) namely, (state the offense) (which would include any charges that were dismissed as a result of the plea agreement) and that the prosecution could proceed just as if there had never been any agreement.

15. a. Whether the defendant has been told by defense counsel and understands, that if the defendant wishes to plead not guilty and have a jury trial, the defendant can testify if the defendant wishes, but that if the defendant decided not to testify, neither the prosecutor nor the judge could comment to the jury about the failure to testify.

b. Whether the defendant waives this right, and agrees to tell the court about the facts of the crime.

16. Whether with knowledge and understanding of these rights the defendant still wishes to enter a plea of guilty or instead wishes to plead not guilty.

17. Whether the defendant makes any claim of innocence.

18. Whether the defendant is under the influence of intoxicating liquor or drugs or under mental disability or under medical or psychiatric treatment.

19. Whether the defendant has any questions to ask or anything to say before stating the facts of the crime.

20. What is the factual basis for the plea.

(NOTE: It is desirable that the defendant also be asked to acknowledge signing the Petition to Plead Guilty, suggested form of which is contained in Appendix A to these rules; that the defendant has read the questions set forth in the petition or that they have been read to the defendant, and that the defendant understands them; that the defendant gave the answers set forth in the petition; and that they are true.)

Comment—Rule 15

Rule 15.02 Acceptance of Plea; Questioning Defendant; Misdemeanor Cases

Before the court accepts a plea of guilty to any offense punishable upon conviction by incarceration, any plea agreement shall be explained in open court. The defendant shall then be questioned by the court or counsel in substance as follows:

1. Specifically whether the defendant understands that the crime charged is (name the offense) committed on or about (Month) (Day) (Year) in ________ County, Minnesota (and that the defendant is pleading guilty to the crime of (name of offense)).

2. Whether the defendant realizes that the maximum possible sentence is 90 days imprisonment and a fine in the amount allowed by applicable law. (Under the applicable law, if the maximum sentence is less, it should be so stated.) Further, whether the defendant realizes that, if the defendant is not a citizen of the United States, a plea of guilty to the crime charged may result in deportation, exclusion from admission to the United States, or denial of naturalization as a United States citizen.

3. Whether the defendant knows there is a right to the assistance of counsel at every stage of the proceedings and that counsel will be appointed for a defendant unable to afford counsel.

4. Whether the defendant knows of the right:

(a) to trial by the court or a jury and that a finding of guilty is not possible in a jury trial unless all jurors agree;

(b) to confront and cross-examine all prosecution witnesses;

(d) to testify or remain silent at trial or at any other time;

(e) to be presumed innocent and that the State must prove its case beyond a reasonable doubt; and

(f) to a pretrial hearing to contest the admissibility at trial of any confessions or admissions or of any evidence obtained from a search and seizure.

5. Whether the defendant waives these rights.

6. Whether the defendant understands the nature of the offense charged.

7. Whether the defendant believes that what the defendant did constitutes the offense to which the defendant is pleading guilty.

The court with the assistance of counsel, if any, shall then elicit sufficient facts from the defendant to determine whether there is a factual basis for all elements of the offense to which the defendant is pleading guilty.

Where the guilty plea is being entered at the defendant's first appearance in court, the statement as to the defendant's rights required by Rule 5.01 may be combined with the questioning required above prior to entry of a guilty plea.

Comment—Rule 15

Rule 15.03 Alternative Methods in Misdemeanor Cases

Subd. 1. Group Warnings. The court may advise a number of defendants at once as to the consequences of a plea and as to their constitutional rights as specified in questions 2, 3 and 4 above. Before such a procedure is followed the court shall first determine whether any defendant is handicapped in communication. If so, the court must provide the services of a qualified interpreter to any such defendant and should provide the warnings contemplated by this rule to any such defendant individually. The court's statement in a group warning shall be recorded and each defendant when called before the court shall be asked whether the defendant heard and understood the statement. The defendant shall then be questioned on the record as to the remaining matters specified in Rule 15.02.

Subd. 2. Petition to Plead Guilty. The defendant or defense counsel may file with the court a petition to plead guilty as provided for in the Appendix B to Rule 15 signed by the defendant indicating that the defendant is pleading guilty to the specified misdemeanor offense with the understanding and knowledge required of defendants personally entering a guilty plea under Rule 15.02.

Comment—Rule 15

Rule 15.04 Plea Discussion and Plea Agreements

Subd. 1. Propriety of Plea Discussions and Plea Agreements. In cases in which it appears that it would serve the interest of the public in the effective administration of criminal justice under the principles set forth in Rule 15.04, subd. 3(2), the prosecuting attorney may engage in plea discussions for the purpose of reaching a plea agreement. The prosecuting attorney shall engage in plea discussions and reach a plea agreement with the defendant only through defense counsel.

Subd. 2. Relationship Between Defense Counsel and Defendant. Defense counsel shall conclude a plea agreement only with the consent of the defendant and shall ensure that the decision to enter a plea of guilty is ultimately made by the defendant.

Subd. 3. Responsibilities of the Trial Court Judge.

(1) Disclosure of Plea Agreement. If a plea agreement has been reached which contemplates entry of a plea of guilty, the trial court judge may permit the disclosure of the agreement and the reasons therefor in advance of the time for tender of the plea. When such plea is tendered and the defendant questioned, the trial court judge shall reject or accept the plea of guilty on the terms of the plea agreement. The court may postpone its acceptance or rejection until it has received the results of a pre-sentence investigation. If the court rejects the plea agreement, it shall so advise the parties in open court and then call upon the defendant to either affirm or withdraw the plea.

(2) Consideration of Plea in Final Disposition. The court may accept a plea agreement of the parties when the interest of the public in the effective administration of justice would thereby be served. Among the considerations which are appropriate in determining whether such acceptance should be given are:

(a) That the defendant by pleading guilty has aided in ensuring the prompt and certain application of correctional measures;

(b) That the defendant has acknowledged guilt and shown a willingness to assume responsibility for the criminal conduct;

(c) That the concessions will make possible the application of alternative correctional measures which are better adapted to achieving rehabilitative, protective, deterrent or other purposes of correctional treatment, or will prevent undue harm to the defendant;

(d) That the defendant has made trial unnecessary when there are good reasons for not having a trial;

(e) That the defendant has given or offered cooperation which has resulted or may result in the successful prosecution of other offenders engaged in serious criminal conduct;

(f) That the defendant by pleading has aided in avoiding delay in the disposition of other cases and thereby has contributed to the efficient administration of criminal justice.

Comment—Rule 15

Rule 15.05 Plea Withdrawal

Subd. 1. To Correct Manifest Injustice. The court shall allow a defendant to withdraw a plea of guilty upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice. Such a motion is not barred solely because it is made after sentence. If a defendant is allowed to withdraw a plea after sentence, the court shall set aside the judgment and the plea.

Subd. 2. Before Sentence. In its discretion the court may also allow the defendant to withdraw a plea at any time before sentence if it is fair and just to do so, giving due consideration to the reasons advanced by the defendant in support of the motion and any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant's plea.

Subd. 3. Withdrawal of Guilty Plea Without Asserting Innocence. The defendant may move to withdraw a plea of guilty without an assertion of not guilty of the charge to which the plea was entered.

Comment—Rule 15

Rule 15.06 Plea Discussions and Agreements Not Admissible

If the defendant enters a plea of guilty which is not accepted or which is withdrawn, neither the plea discussions, nor the plea agreement, nor the plea shall be received in evidence against or in favor of the defendant in any criminal, civil, or administrative proceeding.

Comment—Rule 15

Rule 15.07 Plea to Lesser Offenses

With the consent of the prosecuting attorney and the approval of the court, the defendant shall be permitted to enter a plea of guilty to a lesser included offense or to an offense of lesser degree. Upon motion of the defendant and hearing thereon the court may accept a plea of guilty to a lesser included offense or to an offense of lesser degree, provided the court is satisfied following hearing that the prosecution cannot introduce evidence sufficient to justify the submission of the offense charged to the jury or that it would be a manifest injustice not to accept the plea. In either event, the plea may be entered without amendment of the indictment, complaint or tab charge. However, in felony cases, if the indictment or complaint is not amended, the reduction of the charge to an included offense or an offense of lesser degree shall be done in writing or on the record and if done only on the record, the proceedings shall be transcribed and filed.

Comment—Rule 15

Rule 15.08 Plea to Different Offense

With the consent of the prosecuting attorney and the defendant, the defendant may enter a plea of guilty to a different offense than that charged in the original tab charge, indictment, or complaint. If the different offense is a felony or gross misdemeanor, a new complaint shall be signed by the prosecuting attorney and filed in the district court. The complaint shall be in the form prescribed by Rule 2.01 and Rule 2.03 except that it need not be made upon oath and the facts establishing probable cause to believe the defendant committed the offense charged need not be provided. If the different offense is a misdemeanor , the defendant may be charged by complaint or tab charge as provided in Rule 4.02, subd. 5(3) with the new offense and the original charge shall be dismissed.

Comment—Rule 15

Rule 15.09 Record of Proceedings

Upon a guilty plea to an offense punishable by incarceration, either a verbatim record of the proceedings shall be made, or in the case of misdemeanors, a petition to enter a plea of guilty, as provided in the Appendix B to Rule 15, shall be filed with the court. If a written petition to enter a plea of guilty is submitted to the court, it shall be in the appropriate form as set forth in the Appendices to this rule. The defendant, prosecution, or any person may, at their expense, order a transcript of the verbatim record made in accordance with this rule. When requested, the transcript must be completed within 30 days of the date the transcript was requested in writing and satisfactory financial arrangements were made for the transcription.

Comment—Rule 15

Rule 15.10 Guilty Plea to Offenses From Other Jurisdictions

Following a plea of guilty or a verdict or finding of guilty, the defendant may request permission to plead guilty to any other offense committed by the defendant within the jurisdiction of other courts in the state. The offense must be charged by and the plea must be approved by the prosecuting attorney having authority to charge the offenses.

Any fines imposed and collected upon a guilty plea entered under this rule to an offense arising in another jurisdiction shall be remitted by the clerk of the court imposing the fine to the clerk of the court which originally had jurisdiction over the offense. The clerk of the court of original jurisdiction upon receiving the remittance shall disburse it as required by law for similar fines.

Comment—Rule 15

Rule 15.11 Use of Guilty Plea Petitions When Defendant Handicapped in Communications

In all cases in which a defendant is handicapped in communication because of difficulty in speaking or comprehending the English language, the court may not accept a guilty plea petition unless the defendant is first able to review it with the assistance of a qualified interpreter and the court establishes on the record that this has occurred. Whenever practicable, the court should use multilingual guilty plea petitions to insure that the defendant understands all rights being waived, the nature of the proceedings, and the petition.

Comment—Rule 15

Rule 15.01 adopts in principle ABA Standards, Pleas of Guilty, 1.4-1.6 (Approved Draft, 1968) as to the advice which shall be given to and the inquiry that shall be made of a defendant before acceptance of a plea of guilty to provide assurance that the defendant understands the nature of the charge and the consequences of the plea, including the relinquishment of constitutional rights (Boykin v. Alabama, 395 U.S. 238 (1969)); that the plea is voluntary; and that it has a factual basis. See also State v. Johnson, 279 Minn. 209, 156 N.W.2d 218 (1968).

Rule 15.01 differs from the ABA Standards and from F.R.Crim.P. 11 in that the Rule sets forth a detailed inquiry, following substantially that suggested in Jones, Minnesota Criminal Procedure, 3rd Edition, § 31, p. 80. (See also Preliminary Draft of Proposed Amendments to the F.R.Crim.P. 11 (1971), 52 F.R.D. 409, 415.) Although a failure to include all of the interrogation set forth in Rule 15.01 will not in and of itself invalidate a plea of guilty, a complete inquiry as provided for by the rule will in most cases assure and provide a record for a valid plea. Rule 15.01 also differs in its requirement that the court make certain that a defendant handicapped in communication has a qualified interpreter. This comports with the general requirement for interpreter services established in Rule 5.01 and Minn. Stat. §§ 611.31- 611.34 (1992) and emphasizes the critical importance of this service in the guilty plea process.

The inquiry required by paragraph 10.c. of Rule 15.01 and by paragraph 2 of Rule 15.02 concerning deportation and related consequences is similar to that required in a number of other states. See, e.g., California, Cal. Penal Code § 1016.5; Connecticut, Conn. Gen. Stat. Ann. § 54-1 j; Massachusetts, Mass. Gen. Laws Ann. ch. 278, § 29D; New York, N.Y. Crim. Proc. Law § 220.50 (7); Ohio, Ohio Rev. Code Ann. § 2943.031; Oregon, Or. Rev. Stat. § 135.385; Texas, Tex. Code Crim. Proc. Ann. art. 26.13; and Washington, Wash. Rev. Code Ann. § 10.40.200. In the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996), Congress extensively amended the Immigration and Nationality Act and greatly expanded the grounds for deportation of non-citizens convicted of crimes. Consequently, many non-citizens pleading guilty to felony charges and even to a number of non-felony charges will subject themselves to deportation proceedings. The consequences of such proceedings will often be more severe and more important to the non-citizen defendant than the consequences of the criminal proceedings. It is therefore appropriate that defense counsel advise non-citizen defendants of those consequences and that the court inquire to be sure that has been done. As to the obligation of defense counsel in such situations, see ABA Standards for Criminal Justice, Pleas of Guilty, 14-3.2 (2d ed. 1982). The requirement of inquiring into deportation and immigration consequences does not mean that other unanticipated non-criminal consequences of a guilty plea will justify later withdrawal of that plea. See Kim v. State, 434 N.W.2d 263 (Minn. 1989) (unanticipated employment consequences).

Before entry of a guilty plea, defense counsel should review with the defendant the effect of the Minnesota Sentencing Guidelines on the case. Further, it may be desirable for the court to order a pre-plea sentencing guidelines worksheet to be prepared so that the court, the defendant, and both counsel will be aware of the effect of the guidelines at the time the guilty plea is entered.

Rule 15.01 requires that the inquiry be made by the court with the assistance of the prosecuting attorney and defense counsel.

It is suggested by the Advisory Committee that it is desirable to have the defendant sign a Petition to Plead Guilty in the form of the petition appearing in the Appendices to these rules (which contain in even more detailed form the information showing the defendant's understanding of defense rights and the consequences of pleading), and that the defendant be asked upon the inquiry under Rule 15.01 to acknowledge signing the petition, that the defendant has read the questions set forth in the petition or that they have been read to the defendant and that the defendant understands them, that the defendant gave the answers set forth in the petition, and that they are true. This petition is presently in use in some counties in Minnesota.

Such extensive questioning in a misdemeanor case, Rule 15.02, would not be possible considering the large number of such cases. Nevertheless, where a defendant is subjected to the possibility of a fine and 90 days incarceration, justice requires that the court inform the defendant at least of fundamental constitutional rights, the elements of the offense charged, and the possible consequences of a guilty plea. The court in State v. Casarez, 295 Minn. 534, 203 N.W.2d 406 (1973) applied the Boykin standard to misdemeanors, holding that a misdemeanor guilty plea must be vacated where the record does not show a knowing and voluntary waiver of the defendant's constitutional rights. It is clear then that at least some limited inquiry is necessary on the record before a misdemeanor guilty plea is accepted, and Rule 15.02 prescribes the minimal standards for this questioning.

Care must be taken in accepting a misdemeanor guilty plea or the use of that conviction to aggravate a later misdemeanor to a gross misdemeanor may be endangered. A prior uncounseled guilty plea cannot be used to aggravate a later charge absent a valid waiver of counsel on the record for the earlier plea. State v. Nordstrom, 331 N.W.2d 901 (Minn.1983). Also, a prior guilty plea which lacks a factual basis on the record cannot be used to aggravate a later charge. State v. Stewart, 360 N.W.2d 463 (Minn.Ct.App.1985). Careful use of the Misdemeanor Petition to Enter Plea of Guilty set forth in Appendix B should avoid these problems.

Under Rule 15.03, subd. 1, the inquiry upon entry of a guilty plea may be conducted by the court, defense counsel or the prosecutor as the court may direct. The questioning shall cover in substance the defendant's knowledge of the offense charged; the potential sentence; and the waiver of the defendant's rights to counsel, to a jury trial, to confront witnesses, to subpoena witnesses, to remain silent, to the presumption of innocence, and to require proof of guilt beyond a reasonable doubt. The court shall also ask the defendant whether the defendant understands the nature of the offense charged and whether the defendant believes that what the defendant did constitutes the offense to which the defendant is pleading guilty. The court shall determine whether there is a factual basis for the plea. Since even this minimal inquiry, if conducted for each defendant, would cause much delay and repetition, alternative methods are provided by Rule 15.03, subd. 2. Where a number of defendants are to be arraigned consecutively and are all present in the courtroom, Rule 15.03, subd. 1 provides that the court may advise them as a group of the possible consequences of a guilty plea and of their constitutional rights. The court must first determine whether any of the defendants are handicapped in communication, as that term is defined in Rule 5.01 and Minn. Stat. § 611.31 (1992). If any are, the court must provide a qualified interpreter for each such defendant and both the need for this service and the provision of it for each defendant who requires it must be noted on the record. Rule 5.01; Minn. Stat. §§ 611.31- 611.34 (1992). The court must provide any such defendant with the information contained in the warning individually. If this procedure is followed, each defendant who has received a group warning, when appearing individually before the court must be asked whether the defendant heard and understood the earlier statement by the court. The defendant must then be individually questioned as to waiver of the constitutional rights previously explained; as to understanding the nature of the offense charged; as to believing that what the defendant did constitutes the offense to which the defendant is pleading guilty; and as to the factual basis for the plea. To further save time, the statement of rights required by Rule 5.01 upon a defendant's first appearance in court may be combined with the questioning required by this rule.

Rule 15.03, subd. 2(2) provides the second alternative method of entering a plea of guilty. Under this rule a "Petition to Enter Plea of Guilty" as provided for in the Appendix B to Rule 15, may be completed and filed with the court. This petition in written form contains in substance the information and questions required by Rule 15.03, subd. 1. When properly completed the petition may be filed by either the defendant or defense counsel and it is not necessary for the defendant to personally appear in court when the petition is presented to the court. (See Rule 15.03, subd. 2). See Mills v. Municipal Court, 110 Cal.Rptr. 329 (1973) where the California court approved the use of a similar petition. If the court is satisfied that the plea is being knowingly and voluntarily entered according to the standards of Rule 15.01, subd. 1 it shall dispose of the tendered plea in the same manner as if the defendant were entering the plea orally and in person.

The defendant's right to counsel at the proceedings under Rule 15 is covered by Rule 13.03 (Arraignment In Felony and Gross Misdemeanor Cases).

Rule 15.01, parts 10, 11, 12, following ABA Standards, Pleas of Guilty, 1.5 (Approved Draft, 1968), requires the court to ascertain whether there has been a plea agreement, what it is, whether the defendant understands it and also understands that if the court disapproves the agreement, the defendant has the absolute right to withdraw the plea. Under Rule 15.04, subd. 3(1), the court shall advise the defendant if the plea agreement is rejected (unless the court decides to postpone approval or rejection until the pre-sentence report is received), and shall give the defendant an opportunity to withdraw the plea, if one has been entered.

Rule 15.04, subd. 1 regarding the propriety of plea discussions and agreements follows the language of ABA Standards, Pleas of Guilty, 3.1(a) (Approved Draft, 1968). Instead of specifying what the subject matter of a plea agreement shall be (See ABA Standards, Pleas of Guilty, 3.1(b) (Approved Draft, 1968)) Rule 15.04, subd. 1 refers to the more general considerations which under Rule 15.04, subd. 3(2) shall govern the prosecuting attorney in determining whether to enter into a plea agreement. See Minn. Stat. § 611A.03 regarding the prosecutor's duties under the Victim's Rights Act to make a reasonable and good faith effort to inform of proposed plea agreements and to notify of the right to be present at sentencing to make any objection to the plea agreement or to the proposed disposition.

Rule 15.04, subd. 2, which refers to the relationship between defense counsel and the defendant in connection with a plea agreement, follows ABA Standards, Pleas of Guilty, 3.2(a) (Approved Draft, 1968).

Rule 15.04, subd. 3(1) is adapted from ABA Standards, Pleas of Guilty, 3.3(b) (Approved Draft, 1968) and authorizes the trial court to permit disclosure of a plea agreement in advance of the tender of the plea of guilty. When the defendant is questioned under Rule 15.01, the court shall inform the defendant if the plea agreement is rejected unless the court decides to postpone a decision on acceptance or rejection until the pre-sentence report is received, and shall give the defendant an opportunity to withdraw a plea of guilty, if entered. Whenever the court rejects the plea agreement, whether on tender of plea or after receipt of the pre-sentence report, or after plea, the court shall so inform the defendant and give the defendant an opportunity to affirm or withdraw the plea, if entered, and if the defendant has made factual disclosures tending to disclose guilt of the offense charged, the judge should disqualify himself or herself from the trial of the case.

Rule 15.04, subd. 3(2) sets forth the considerations that shall guide the prosecuting attorney in determining whether to enter into a plea agreement and what the plea agreement shall be, and it also contains the considerations that shall govern the court in deciding whether to accept the agreement. This rule is taken from ABA Standards, Pleas of Guilty, 1.8 (Approved Draft, 1968). Rule 15.04, subd. 3(2)(d) is intended to cover the situations in which innocent witnesses or victims, such as young children involved in sexual offenses, may be protected from unnecessary publicity.

Rule 15.05, subd. 1 authorizing the withdrawal of a plea of guilty to correct manifest injustice follows the principles set by ABA Standards, Pleas of Guilty, 2.1(a) (Approved Draft, 1968), but does not provide guidelines for determining whether a motion for withdrawal of the plea is timely or whether withdrawal is necessary to correct manifest injustice. (In this respect the rule differs from ABA Standards, Pleas of Guilty, 2.1(a)(i), (ii) (Approved Draft, 1968). This is left by the rule to judicial decision. (See, e.g., Chapman v. State, 282 Minn. 13, 162 N.W.2d 698 (1968).)

Whenever a plea agreement has been rejected, the defendant shall be afforded the opportunity to withdraw a plea of guilty, if entered (Rules 15.04, subd. 3(1); 15.01).

The court shall permit withdrawal of a plea of guilty to correct manifest injustice whether the motion is made before or after sentence. (Rule 15.05, subd. 1).

Rule 15.05, subd. 2 permits the court in its discretion to allow the defendant to withdraw a guilty plea before sentence under the conditions specified in the rule. (Compare Minn. Stat. § 630.29 (1971) which does not prescribe guidelines.)

Rule 15.05, subd. 3 permitting a motion to withdraw a plea of guilty without asserting innocence is taken from ABA Standards, Pleas of Guilty, 2.1(a)(iii) (Approved Draft, 1968).

Rule 15.06 making plea discussions and plea agreements inadmissible in evidence follows ABA Standards, Pleas of Guilty, 3.4 (Approved Draft, 1968). Rule 15.06 is consistent with Rule 410 of the Minnesota Rules of Evidence which also governs the admissibility of evidence of a withdrawn plea of guilty. Rule 410 is broader in that it makes inadmissible evidence relating to withdrawn pleas from other jurisdictions including withdrawn pleas of nolo contendere from those jurisdictions which allow such a plea.

Rule 15.07 permits a defendant to plead to a lesser offense with the approval of the court if the prosecuting attorney consents. (This is substantially the same as Minn. Stat. § 630.30 (1971) which requires the approval of the court.)

The rule also authorizes the court on defendant's motion and following a hearing thereon to permit the defendant to plead to a lesser offense without the consent of the prosecuting attorney. In accordance with State v. Carriere, 290 N.W.2d 618 (Minn.1980), such a plea is permitted only if the court is satisfied, following a hearing, that the prosecution could not present sufficient admissible evidence to justify submission of the offense charged to the jury. Under State v. Carriere, supra, the showing required of the prosecution in order to withstand the defendant's motion would be in the nature of an offer of proof. Further, the hearing must be in open court and the court's order must include a detailed statement of the reasons for its ruling on the motion. Rule 15.07 also permits a plea to a lesser offense over the prosecutor's objection to prevent a manifest injustice. Rule 15.07 does not require that the indictment or complaint be amended. (See State v. Oksanen, 276 Minn. 103, 149 N.W.2d 27 (1967).) However, if the indictment or complaint is not amended the rule requires that for felonies the reduction of the charge must be done in writing or on the record. If it is done only on record the proceedings must be transcribed and filed to assure that the court file will always reflect the disposition of all felony charges.

Rule 15.08 permits a plea of guilty to a different offense than that charged in the original complaint, tab charge or indictment with the consent of the defendant and prosecuting attorney. In that event for felonies and gross misdemeanors, other than those under Minn. Stat. § 169.121 or Minn. Stat. § 169.129, a new complaint shall be filed, but need not be made on oath and need not provide evidence establishing probable cause. (See also Rule 11.06). In misdemeanor cases and gross misdemeanor cases under Minn. Stat. § 169.121 or Minn. Stat. § 169.129, the procedure is also permitted, but the defendant will be tab charged with the new offense as provided by Rule 4.02, subd. 5(3), and the original charge or charges will be dismissed upon entry of the guilty plea to the new charge.

Rule 15.09, requiring a record of the proceedings on a plea of guilty, is in accord with ABA Standards, Pleas of Guilty, 1.7 (Approved Draft, 1968). In misdemeanor cases, the rule provides the alternative, however, of filing a petition to enter a guilty plea as provided for in Rule 15.03, subd. 2, and in the Appendix B to Rule 15. This provision for either a verbatim record or a petition is included to satisfy the constitutional requirement that a plea to a misdemeanor offense punishable by incarceration must be shown on the record to be knowingly and voluntarily entered. See State v. Casarez, 295 Minn. 534, 203 N.W.2d 406 (1973); Boykin v. Alabama, 89 S.Ct. 1709, 395 U.S. 238, 23 L.Ed.2d 274 (1969); and Mills v. Municipal Court, 110 Cal.Rptr. 329, 515 P.2d 273, 10 Cal.3d 288 (1973). The verbatim record may be made by a court reporter or recording equipment (see Minnesota Statutes, section 487.11, subd. 2 (1971)). The verbatim record need not be transcribed unless requested by the defendant, the prosecuting attorney, or any other person. If a transcript is requested, it then must be completed within 30 days after the request is made in writing and satisfactory arrangements are made for payment of the transcript.

Rule 15.10, which permits a defendant to plead guilty to misdemeanor, gross misdemeanor, or felony offenses from other jurisdictions in certain circumstances, is based on Unif.R.Crim.P. 444(e) (1987). It is similar to Rule 5.04, subd. 2, which previously authorized such pleas in misdemeanor cases, but is broader in that such pleas are permitted after a verdict or finding of guilty as well as after a guilty plea. Before proceeding under this rule, it is necessary for the prosecuting attorney having authority to charge the offense to charge the defendant in the jurisdiction having venue. This may be done by complaint or indictment or, for misdemeanors by tab charge. The charging document may be transmitted to the jurisdiction where the plea is to be entered by facsimile transmission under Rule 33.05.g

If the defendant is handicapped in communication due to difficulty in speaking or comprehending English, the court may not accept a guilty plea petition until the defendant has been able to review it with the assistance of a qualified interpreter, and the court establishes on the record that this has occurred. See Final Report of the Minnesota Supreme Court Task Force on Racial Bias in the Judicial System, Chapter 2, recommendation 11. It is strongly recommended that when the defendant is handicapped in communication due to difficulty in speaking or comprehending English, a multilingual guilty plea petition be used which would be both in English and a language in which the defendant is able to communicate. The use of a multilingual petition would help assure that the translation is accurate and is preferable to the use of a petition which contains only the language other than English.

Rule 16. Misdemeanor Prosecution by Indictment

In misdemeanor cases prosecuted by indictment, to the extent that Rule 19 conflicts with other rules, Rule 19 shall govern.

Comment—Rule 16

The grand jury, with its power under Minn. Stat. § 628.02 to inquire into all "public offenses", could indict a defendant on misdemeanor charges. In those rare cases, Rule 16 provides that the prosecution shall be governed by Rule 19 in those instances where Rule 19 conflicts with those rules that would otherwise govern the misdemeanor prosecution.

Rule 17. Indictment, Complaint and Tab Charge

Rule 17.01 Prosecution by Indictment, Complaint or Tab Charge

An offense which may be punished by life imprisonment shall be prosecuted by indictment, but the prosecution may proceed by a complaint following an arrest without a warrant or as the basis for the issuance of a warrant of arrest. The procedure thereafter shall be in accordance with the provisions of Rules 8 and 19. Any other offense defined by state law may be prosecuted by indictment or by a complaint as provided by Rule 2. Misdemeanors and designated gross misdemeanors as defined by Rule 1.04(b) may be prosecuted by tab charge, provided that for any such designated gross misdemeanors, a complaint shall be subsequently made, served and filed as required by Rule 4.02, subd. 5(3).

The arrest of a person under a warrant of arrest issued upon a complaint under Rule 3 or the filing of a complaint under Rule 4.02, subd. 5(2) against a person arrested without a warrant shall not preclude an indictment for the offense charged in the complaint or for an offense arising from the conduct upon which the charge in the complaint was based.

Comment—Rule 17

Rule 17.02 Nature and Contents

Subd. 1. Complaint. A complaint shall be substantially in the form prescribed by Rule 2.

Subd. 2. Indictment. An indictment shall contain a written statement of the essential facts constituting the offense charged. It shall be signed by the foreperson of the grand jury.

Subd. 3. Indictment and Complaint. The indictment or complaint shall state for each count the citation of the statute, rule, regulation or other provision of law which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal or for reversal of a conviction if the error or omission did not prejudice the defendant. Each count may charge only one offense. Allegations made in one count may be incorporated by reference in another count. An indictment or complaint may, but need not, contain counts for the different degrees of the same offense, or for any of such degrees, or counts for lesser or other included offenses, or for any of such offenses. The same indictment or complaint may contain counts for murder, and also for manslaughter, or different degrees of manslaughter. When the offense may have been committed by the use of different means, the indictment or complaint may allege in one count the means of committing the offense in the alternative or that the means by which the defendant committed the offense are unknown.

Subd. 4. Bill of Particulars. The bill of particulars is abolished.

Subd. 5. Indictment and Complaint Forms--Felony and Gross Misdemeanors. For all indictments and complaints charging a felony or gross misdemeanor offense the prosecuting attorney or such judge or judicial officer authorized by law to issue process pursuant to Rule 2.02 shall use an appropriate form authorized and supplied by the State Court Administrator or a word processor-produced complaint or indictment form in compliance with the supplied form and approved by Information Systems Office, State Court Administration. If for any reason such form is unavailable, failure to comply with this rule shall constitute harmless error under Rule 31.01.

Comment—Rule 17

Rule 17.03 Joinder of Offenses and of Defendants

Subd. 1. Joinder of Offenses. When the defendant's conduct constitutes more than one offense, each such offense may be charged in the same indictment or complaint in a separate count.

Subd. 2. Joinder of Defendants.

(1) Felony and Gross Misdemeanor Cases. When two or more defendants are jointly charged with a felony, they may be tried separately or jointly in the discretion of the court. In making its determination on whether to order joinder or separate trials, the court shall consider the nature of the offense charged, the impact on the victim, the potential prejudice to the defendant, and the interests of justice. In cases other than felonies, defendants jointly charged may be tried jointly or separately, in the discretion of the court. In all cases any one or more of said defendants may be convicted or acquitted.

(2) Misdemeanor Cases. Defendants jointly charged may be tried jointly or separately, in the discretion of the court. In all cases, any one or more of said defendants may be convicted or acquitted.

Subd. 3. Severance of Offenses or Defendants. Misjoinder of offenses or charges or defendants shall not be grounds for dismissal, but on motion, offenses or defendants improperly joined shall be severed for trial.

(1) Severance of Offenses. On motion of the prosecuting attorney or the defendant, the court shall sever offenses or charges if:

(a) the offenses or charges are not related;

(b) before trial, the court determines severance is appropriate to promote a fair determination of the defendant's guilt or innocence of each offense or charge; or

(c) during trial, with the defendant's consent or upon a finding of manifest necessity, the court determines severance is necessary to achieve a fair determination of the defendant's guilt or innocence of each crime.

(2) Severance from Codefendant because of Codefendant's Out-of-Court Statement. On motion of a defendant for severance from codefendant because a codefendant's out-of-court statement refers to, but is not admissible against, the defendant, the court shall determine whether the prosecuting attorney intends to offer the statement as evidence as part of its case in chief. If so, the court shall require the prosecuting attorney to elect one of the following options:

(a) a joint trial at which the statement is not received in evidence;

(b) a joint trial at which the statement is received in evidence only after all references to the defendant have been deleted, if admission of the statement with the deletions will not prejudice the defendant; or

(3) Severance of Defendants During Trial. The court shall sever defendants during trial with the defendant's consent or upon a finding of manifest necessity, if the court determines severance is necessary to achieve a fair determination of the guilt or innocence of one or more of the defendants.

Subd. 4. Consolidation of Indictments, Complaints or Tab Charges for Trial. The court on motion of the prosecution or on its initiative may order two or more indictments, complaints, tab charges or any combination thereof to be tried together if the offenses and the defendants, if there is more than one, could have been joined in a single indictment, complaint or tab charge. On motion of the defendant, the court may order two or more indictments, complaints, tab charges, or any combination thereof to be tried together even if the offenses and the defendants, if there be more than one, could not have been joined in a single indictment, complaint or tab charge. The procedure shall be the same as if the prosecution were under such single indictment, complaint or tab charge.

Subd. 5. Dual Representation. When two or more defendants are jointly charged or will be tried jointly under subdivisions 2 or 4 of this rule, and two or more of them are represented by the same counsel, the procedure hereafter outlined shall be followed before plea and trial.

(1) The court shall address each defendant personally on the record, advise the defendant of the potential danger of dual representation, and give the defendant an opportunity to question the court on the nature and consequences of dual representation.

(2) The court shall elicit from each defendant in a narrative statement that the defendant has been advised of the right to effective representation; that the defendant understands the details of defense counsel's possible conflict of interest and the potential perils of such a conflict; that the defendant has discussed the matter with defense counsel, or if the defendant wishes with outside counsel and that the defendant voluntarily waives the Sixth Amendment protections.

Comment—Rule 17

Rule 17.04 Surplusage

The court on motion may strike surplusage from the indictment, complaint, or tab charge.

Comment—Rule 17

Rule 17.05 Amendment of Indictment or Complaint

The court may permit an indictment or complaint to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.

Comment—Rule 17

Rule 17.06 Motions Attacking Indictment, Complaint or Tab Charge

Subd. 1. Defects in Form. No indictment, complaint or tab charge shall be dismissed nor shall the trial, judgment or other proceedings thereon be affected by reason of a defect or imperfection in matters of form which does not tend to prejudice the substantial rights of the defendant.

Subd. 2. Motion to Dismiss or for Appropriate Relief. All objections to an indictment, complaint or tab charge shall be made by motion as provided by Rule 10.01 and may be based on the following grounds without limitation:

(1) Indictment.

(a) The evidence admissible before the grand jury was not sufficient as required by these rules to establish the offense charged or any lesser or other included offense or any offense of a lesser degree;

(b) The grand jury was illegally constituted;

(d) Fewer than 12 grand jurors concurred in the finding of the indictment;

(e) The indictment was not found or returned as required by law;

(f) An unauthorized person was in the grand jury room during the presentation of evidence upon the charge contained in the indictment or during the deliberations or voting of the grand jury upon the charge.

(2) Indictment, Complaint or Tab Charge. In the case of an indictment, complaint or tab charge:

(a) The indictment, complaint or tab charge does not substantially comply with the requirements prescribed by law to the prejudice of the substantial rights of the defendant;

(b) The court lacks jurisdiction of the offense charged;

(d) In the case of an indictment or complaint, that the facts stated do not constitute an offense;

(e) The prosecution is barred by the statute of limitations;

(f) The defendant has been denied a speedy trial;

(g) There exists some other jurisdictional or legal impediment to prosecution or conviction of the defendant for the offense charged, except as provided by Rule 10.02;

(h) Double jeopardy, collateral estoppel, or that prosecution is barred by Minn. Stat. § 609.035.

Subd. 3. Time for Motion. A motion to dismiss the indictment, complaint or tab charge shall be made within the time prescribed by Rule 10.04, subd. 1 except that an objection to the jurisdiction of the court over the offense or that the indictment, complaint or tab charge fails to charge an offense may be made at any time during the pendency of the proceeding.

Subd. 4. Effect of Determination of Motion to Dismiss.

(1) Motion Denied. If a motion to dismiss the indictment, complaint or tab charge is determined adversely to the defendant, the defendant shall be permitted to plead if the defendant has not previously pleaded. A plea previously entered shall stand. The defendant in a misdemeanor case may continue to raise the issues on appeal if convicted following a trial.

(2) Grounds for Dismissal. When a motion to dismiss an indictment, complaint or tab charge is granted for a defect in the institution of prosecution or in the indictment, complaint or tab charge, the court shall specify the grounds upon which the motion is granted.

(3) Dismissal for Curable Defect. If the dismissal is for failure to file a timely complaint as required by Rule 4.02, subd. 5(3), or for a defect that could be cured or avoided by an amended or new indictment, or complaint, further prosecution for the same offense shall not be barred, and the court shall on motion of the prosecuting attorney, made within seven (7) days after notice of the entry of the order granting the motion to dismiss, order that defendant's bail or the other conditions of his release be continued or modified for a specified reasonable time pending an amended or new indictment or complaint.

In misdemeanor cases, if the defendant is unable to post any bail that might be required under Rule 6.02, subd. 1, then the defendant must be released subject to such non-monetary conditions as the court deems appropriate under that rule. The specified time for such amended or new indictment or complaint shall not exceed sixty (60) days for filing a new indictment or seven (7) days for amending an indictment or complaint or for filing a new complaint. During the seven-day period for making the motion and during the time specified by the order, if such motion is made, dismissal of the indictment or complaint shall be stayed. If the prosecution does not make the motion within the seven-day period or if the indictment or complaint is not amended or if a new indictment or complaint is not filed within the time specified by the order, the defendant shall be discharged and further prosecution for the same offense shall be barred unless the prosecution has appealed as provided by law, or unless the defendant is charged with murder and the court has granted a motion to dismiss on the ground of the insufficiency of the evidence before the grand jury. In misdemeanor cases and also in designated gross misdemeanor cases as defined in Rule 1.04(b) dismissed for failure to file a timely complaint within the time limits as provided by Rule 4.02 subd. 5(3), further prosecution shall not be barred unless additionally a judge or judicial officer of the court has so ordered.

Comment—Rule 17

The first sentence of Rule 17.01 that an offense punishable by life imprisonment shall be prosecuted by indictment retains existing Minnesota law, which does not permit an information to be filed for that offense. (Minn. Stat. §§ 628.29, 628.32(6) (1971).) All other offenses may be prosecuted by indictment or complaint. The complaint takes the place of the information as an accusatory instrument. (See comment, Rules 2, 8.)

Under Rule 17.01 the fact that a complaint has been filed initially does not preclude an indictment while the complaint is pending or after it has been dismissed (except as provided in Rule 17.06, subd. 4).

Under Rule 17.01, a misdemeanor and also a designated gross misdemeanor as defined in Rule 1.04(b) may be prosecuted by complaint or by tab charge (See Rule 4.02, subd. 5(3)) under these rules. However, for any such designated gross misdemeanor prosecution the complaint must be subsequently made, served and filed within the time limits as provided by Rule 4.02, subd. 5(3). These offenses may also be prosecuted by indictment and, in such cases, rules applicable to indictments shall apply.

The complaint by Rule 2.01 and the indictment by Rule 17.02, subd. 2 shall contain a written statement of the essential facts constituting the offense charged. (See F.R.Crim.P. 3, 7(c)(1).) The statement of the evidence, or the supporting affidavits, or sworn testimony, showing probable cause required by Rule 2.01 are not a part of the indictment.

Except to the extent that existing statutes (Minn. Stat. §§ 628.10- 628.13, 628.15- 628.18, 628.20- 628.24, 628.27 (1971)), governing the contents of an indictment or information are inconsistent with Rule 17.02, they are not intended to be abrogated by these rules. So, to the extent they are consistent with the provisions of Rule 17.02, they may be followed in drawing complaints and indictments under these rules.

The requirement of Rule 17.02, subd. 3 for the citation of the statute violated but that error in the citation or in its omission is harmless unless the defendant was prejudiced comes from F.R.Crim.P. 7(e)(1)(2). (See also Minn. Stat. § 628.19 (1971).)

Rule 17.02, subd. 3 permits counts to be used but prohibits duplicity by charging more than one offense in a single count.

Allegations by reference is taken from F.R.Crim.P. 7(c)(1).

Rule 17.02, subd. 3, following Minn. Stat. § 628.14 (1971), also permits--but does not require--counts for lesser offenses, and permits allegations in the alternative of the means of committing an offense. (The last sentence of § 628.14 permitting several counts describing the different "classes" to which an offense might belong was not included in the rule because of its ambiguity.)

Rule 17.02, subd. 4 abolishes the bill of particulars. The information supplied by a bill of particulars may be obtained by discovery under Rules 9 or 7.03. If the indictment or complaint is deficient a motion may be made under Rule 17.06, subd. 2(2) and if granted, the indictment or complaint may be amended in accordance with Rule 17.06, subd. 4(3).

If the defect is one that can be cured by an amendment or new indictment or complaint, dismissal is automatically stayed for 7 days during which the prosecuting attorney may move that the stay be continued and the defendant's bail or other conditions of release be continued or modified pending amendment or a new indictment or complaint. (Rule 17.06, subd. 4(3)).

If the motion is made, the further stay for that purpose shall be granted but not for more than 60 days for a new indictment (See Rules 18.01, subd. 1; 18.09) or more than 7 days for an amendment or new complaint. The 60-day period permitted for a new indictment allows for the additional time needed to draw and summon the grand jurors and witnesses and to present the case to the grand jury.

If the motion is not made within the 7-day time period for making the motion, or if no new indictment is returned within the 60-day period or amendment or new complaint filed within the 7-day period, the case shall be dismissed, the defendant discharged, and further prosecution is barred, unless the prosecution appeals as provided by law (See Minn. Stat. §§ 632.11- 632.13 (1971)), or unless the defendant is charged with murder and the court has granted the motion to dismiss on the ground that the evidence before the grand jury was insufficient to establish probable cause. (See Rules 7.06, subd. 2(1)(a); 18.06). It was the opinion of the Advisory Committee that an exception should be made in the case of murder in view of the seriousness of the offense and the absence of a statute of limitations.

Rule 17.03, subd. 1, governing joinder of offenses, adopts the provisions of Minn. Stat. § 609.035 (1971) leaving its judicial interpretations to judicial decision.

Rule 17.03, subd. 2(2), governing the joinder of defendants in misdemeanor cases, adopts the provisions of Minn. Stat. § 631.03 (repealed, 1979 c 233 § 42) which permitted the joinder of two or more defendants when they are jointly charged with the commission of an offense. Severance of offenses or defendants already joined is governed by Rule 17.03, subd. 3.

Rule 17.03, subd. 3, providing that improper joinder of offenses or defendants is not a ground for dismissal but only for mandatory severance, abrogates Minn. Stat. § 630.23(3) which lists misjoinder of offenses as a ground for demurrer. When defendants are properly already joined, severance is governed by Rule 17.03, subd. 2 and Rule 17.03, subd. 3. Part (1) of Rule 17.03, subd. 3, concerning severance of offenses is taken from Unif.R.Crim.P. 472(a) (1987) which is based on ABA Standards for Criminal Justice 13-3.1(a) and (b) (1985). Part (2) of the rule, concerning severance of defendants because of out-of-court statements by a codefendant, is taken from Unif.R.Crim.P. 472(b)(1) (1987) which is based on ABA Standards for Criminal Justice 13-3.2(a) (1985). Part (3) of the rule, concerning severance of defendants during trial is taken from Unif.R.Crim.P. 472(b)(2)(ii) (1987) which is based on ABA Standards for Criminal Justice 13-3.2(b)(ii) (1985).

Rule 17.03, subd. 4, permitting consolidation of indictments, complaints and tab charges follows F.R.Crim.P. 13.

The procedures required by Rule 17.03, subd. 5 concerning representation by the same counsel of two or more defendants jointly charged or tried are taken from State v. Olsen, 258 N.W.2d 898 (Minn.1977). That case requires that the waiver of Sixth Amendment rights obtained from the defendant must be stated in clear and unequivocal language. If a record is not made as required or if the record fails to show that the procedures were followed in every important respect, State v. Olsen, supra, places the burden on the prosecution to establish beyond a reasonable doubt that a prejudicial conflict of interest did not exist.

The provision of Rule 17.04 for striking surplusage is taken from F.R.Crim.P. 7(d).

Rule 17.05 permitting an amendment of an indictment, complaint or tab charge at any time before verdict or finding unless the defendant will be substantially prejudiced follows F.R.Crim.P. 7(e) and takes the place of the second sentence of Minn. Stat. § 628.19 (1971). The rule leaves to the trial court the determination of whether the defendant will be substantially prejudiced by an amendment and what steps, if any, including a continuance, may be taken to remove any prejudice that might otherwise result from an amendment. Rule 17.05 does not govern the amendment of a complaint after a mistrial and before start of the second trial. Rather, Rule 3.04, subd. 2 which provides for the free amendment of the complaint controls. State v. Alexander, 290 N.W.2d 745 (Minn.1980).

Rule 17.06, subd. 1, precluding dismissal for defects in form follows the language of the first sentence of Minn. Stat. § 628.19 (1971).

In addition to the motion to dismiss an indictment for disqualification of individual jurors or the jury panel (See Rule 18.02, subd. 2), Rule 17.06, subd. 2 provides that all objections to an indictment, complaint or tab charge shall be by motion to dismiss or for appropriate relief (Rule 10.01), thus abolishing the demurrer (Minn. Stat. § 630.23 (1971)) and motion to quash or set aside (Minn. Stat. § 630.18) provided by existing law, and superseding those statutes to the extent they are inconsistent with the rule.

Grounds for a motion for dismissal of an indictment only and for a motion for dismissal of an indictment or complaint are set forth in Rule 17.06, subd. 2(1) and (2). These grounds are not intended to be exclusive.

Rule 17.06, subd. 2(1)(a) providing for a motion for dismissal of an indictment for lack of admissible evidence showing probable cause is available because of the requirement of Rule 18.05, subd. 1 that a record be made of the evidence taken before the grand jury. (See also the provisions of 18.05, subd. 1 for the conditions in which the record may be disclosed to the defendant. And see also Rule 18.06, subd. 2.) Upon such a motion the admissibility and sufficiency of evidence pertaining to indictments are governed by Rules 18.06, subd. 1, and 18.06, subd. 2.

Rule 17.06, subd. 2(2)(f) listing denial of a speedy trial as a ground for dismissal leaves to judicial decision the constitutional or other requirements of a speedy trial as well as the effect of a denial of defendant's demand for trial under Rule 11.10 and Rule 6.06.

By Rule 10.04, subd. 1, a motion to dismiss an indictment or complaint shall be served not later than 3 days before the Omnibus Hearing under Rule 11 unless the time is extended for good cause. In misdemeanor cases, by Rule 17.06, subd. 3, a motion to dismiss a complaint or tab charge shall be served at least three days before the pretrial conference or, at least three days before the trial if no pretrial conference is held, unless this time is extended for good cause. Rule 17.06, subd. 4(1) provides that if a defendant's motion to dismiss is denied in a misdemeanor case the defendant may continue to raise the issue involved in the motion on direct appeal if convicted following a trial. The denial of a motion to dismiss based upon a challenge to the personal jurisdiction of the court could therefore be raised on direct appeal of a misdemeanor judgment of conviction. This reverses prior Minnesota case law, which permitted review in such cases only by writ of prohibition. See State v. Stark, 288 Minn. 286, 179 N.W.2d 597 (1970). Permitting the issue of personal jurisdiction to be raised on direct appeal avoids the inconvenience and delay which would often result from continuing the trial to allow the defendant to seek a writ of prohibition.

The first sentence of Rule 17.06, subd. 4, that if a motion to dismiss is decided adversely to the defendant, the defendant shall be permitted to plead if the defendant has not already done so and that a plea previously entered shall stand, is taken from F.R.Crim.P. 12(b)(5) and takes the place of similar provisions in Minn. Stat. §§ 630.19, 630.26 (1971). (See also Rule 11.10.) This rule contemplates that a defendant may plead not guilty and also make a motion to dismiss if the defendant wishes.

The balance of Rule 17.06, subd. 4 relating to the effect of a determination to dismiss the indictment, tab charge or complaint supersedes Minn. Stat. §§ 630.19- 630.21, 630.25 (1971) and provides uniformity for that purpose. The rule is based on F.R.Crim.P. 12(h)(b). (See also Rule 3.04, subd. 2.)

In order that the basis of a dismissal for a defect in the institution of the prosecution or in the indictment or complaint may be apparent, Rule 17.06, subd. 4 requires the court to specify the grounds for granting the motion. Under Rule 17.06, subd. 4(3) if the dismissal is for failure to file a timely complaint as required by Rule 4.02, subd. 5(3) for misdemeanor cases and also for designated gross misdemeanor cases as defined in Rule 1.04(b) or for a defect which could be cured by a new complaint, the prosecutor may within 7 days after notice of entry of the order dismissing the case move to continue the case for the purpose of filing a new complaint. Upon such a motion the court shall continue the case for no more than 7 days pending the filing of a new complaint, or amending of the complaint or indictment or for 60 days pending the filing of a new indictment. This filing requirement for a new or amended complaint is not satisfied until the complaint is signed by the judge or other appropriate issuing officer and then filed with the court administrator.

During the time for such a motion and during any continuance, dismissal of the charge is stayed, but in a misdemeanor case, the defendant may not be kept in custody based on that charge. A defendant who cannot post bail in a misdemeanor case must be released subject to such nonmonetary conditions as the court deems appropriate under Rule 6.02, subd. 1. If no motion is made or if no new or amended complaint or indictment is filed within the times allowed, the defendant must be discharged and any further prosecution is barred unless the prosecution has appealed or unless the murder case exception applies. However, in misdemeanor cases and also in designated gross misdemeanor cases as defined in Rule 1.04(b) dismissed for failure to file a timely complaint within the time limits as provided by Rule 4.02, subd. 5(3), further prosecution is not automatically barred, but is barred only if so ordered by the court. If such a case is dismissed for failure to issue a complaint, but the 30-day time limit established by Rule 4.02, subd. 5(3), has not yet run, the prosecutor may still issue the complaint within the 30-day time limit even without bringing a motion under Rule 17.06, subd. 4(3). The court is not authorized under Rule 17.06, subd. 4(3), to bar further prosecution before the 30-day time limit has run. Before this time limit has run, however, the court may order that further prosecution shall be barred if a valid complaint is not issued within the 30-day time limit. If no complaint is then issued within the 30 days, prosecution is barred without the necessity of further motions, court appearances, or orders. Rule 17.06, subd. 4(3), does not govern dismissals for defects that could not be cured at the time of dismissal by a new or amended complaint or indictment. Therefore, when a complaint or indictment has been dismissed because of insufficient evidence to establish probable cause, the prosecutor may re-prosecute if further evidence is later discovered to establish probable cause. The prosecutor may not reinstitute the charge by a tab charge under Rule 4.02, subd. 5(3) even for a misdemeanor. Also under Rule 4.02, subd. 5(3), even if prosecution is reinstituted within the specified period after having been dismissed for failure to file a timely complaint, a summons rather than a warrant must be issued to secure the appearance of the defendant in court.

Rule 18. Grand Jury

Rule 18.01 Summoning Grand Juries

Subd. 1. When Summoned. The district court, without regard to the beginning or ending of a term of court, shall order that one or more grand juries be drawn at least annually. The grand jury shall be summoned and convened whenever required by the public interest or whenever requested by the county attorney. Upon being drawn, each juror shall be notified of selection. The court shall prescribe by order or rule the time and manner of summoning grand jurors. Vacancies in the grand jury panel shall be filled in the same manner as provided by this rule.

Subd. 2. How Selected and Drawn. Except as otherwise provided by this rule with respect to St. Louis County, the grand jury list shall be composed of the names of persons selected at random from a fair cross-section of the residents of the county who are qualified by law to serve as jurors and shall otherwise be selected as provided by law. The grand jury shall be drawn from the grand jury list as prescribed by law.

In St. Louis County a grand jury list shall be selected at random from a fair cross-section of the residents of each of the 3 districts of the St. Louis County Court district as defined by Minn. Stat. § 487.01, subd. 5(1) who are qualified by law to serve as jurors. The grand jury list shall otherwise be selected and the grand jurors shall be drawn from the list as provided by law. Each grand jury so drawn shall serve only in that district of the St. Louis County Court district from which the members of the jury are drawn.

Comment—Rule 18

Rule 18.02 Objections to Grand Jury and Grand Jurors

Subd. 1. Challenges Abolished. Challenges to the grand jury panel and to individual grand jurors are abolished. Objections to the grand jury panel and to individual grand jurors shall be made by motion to dismiss the indictment as hereafter provided.

Subd. 2. Motion to Dismiss Indictment. A motion to dismiss an indictment may be based upon any of the following grounds: that the grand jury was not selected, drawn or summoned in accordance with law; or that an individual juror is not legally qualified or that the juror's state of mind prevented the juror from acting impartially. An indictment shall not be dismissed on the ground that one or more of the grand jurors was not legally qualified if it appears from the jury's records that 12 or more jurors, after deducting the number not legally qualified, concurred in finding the indictment.

Comment—Rule 18

Rule 18.03 Organization of Grand Jury

Subd. 1. Members; Quorum. A grand jury shall consist of not more than 23, nor less than 16, persons, and shall not proceed to any business unless at least 16 members are present.

Subd. 2. Organization and Proceedings. The grand jury shall be organized and its proceedings shall be conducted as provided by law except as otherwise provided by these rules.

Subd. 3. Charge. After the grand jury is sworn, the court shall instruct it respecting its duties.

Comment—Rule 18

Rule 18.04 Who May Be Present

Attorneys for the State, the witness under examination, qualified interpreters for witnesses handicapped in communication or for jurors with a sensory disability, and for the purpose of recording the evidence, a reporter or operator of a recording instrument may be present while the grand jury is in session, but no person other than the jurors and any qualified interpreters for any jurors with a sensory disability may be present while the grand jury is deliberating or voting. Upon order of court and a showing of necessity for the purpose of security, a designated peace officer may be present while a specified witness is testifying. If a witness before the grand jury so requests and has effectively waived immunity from self-incrimination or has been granted use immunity, the attorney for the witness may be present while the witness is testifying, provided the attorney is then and there available for that purpose or the attorney's presence can be secured without unreasonable delay in the grand jury proceedings. The attorney shall not be permitted to participate in the grand jury proceedings except to advise and consult with the witness while the witness is testifying.

Pursuant to an order of the court based upon a particularized showing of need, a witness under the age of 18 may be accompanied by a parent, guardian or other supportive person while that child witness is testifying before the grand jury. The parent, guardian or other supportive person shall not be permitted to participate in the grand jury proceedings and shall not be permitted to influence the content of the witness’s testimony. In choosing the parent, guardian or other supportive person the court shall determine whether the parent, guardian or other supportive person is appropriate, including whether he or she may become a witness to the matter or may exert undue influence over the child witness. The court shall instruct the parent, guardian or other supportive person on their proper role in the grand jury proceedings.

Comment—Rule 18

Rule 18.05 Record of Proceedings

Subd. 1. Verbatim Record. A verbatim record shall be made by a reporter or recording instrument of the evidence taken before the grand jury and of all statements made and events occurring before the grand jury except during deliberations and voting of the grand jury. The required verbatim record shall not include the name of any grand juror. The record shall not be disclosed except to the court or prosecuting attorney or unless the court, upon motion by the defendant for good cause shown, or upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury, orders disclosure of the record or designated portions thereof to the defendant or defense counsel.

Subd. 2. Transcript. Upon motion of the defendant with notice to the prosecuting attorney, the district court at any time before trial shall, subject to such protective order as may be granted under Rule 9.03, subd. 5, order that defense counsel may obtain a transcript or copy of: (1) any recorded testimony of the defendant before the grand jury in the case against the defendant; (2) the recorded testimony of any persons before the grand jury whom the prosecution intends to call as witnesses at the defendant's trial; or (3) the recorded testimony of any witness before the grand jury in the case against the defendant, provided that at the hearing on the motion, defense counsel makes an offer of proof showing that the defendant expects to call the witness at the trial and that the witness will give relevant testimony favorable to the defendant.

Comment—Rule 18

Rule 18.06 Kind and Character of Evidence

Subd. 1. Admissibility of Evidence. An indictment shall be based on evidence that would be admissible at trial, with the following exceptions:

(1) Hearsay evidence offered only to lay the foundation for the admissibility of otherwise admissible evidence shall be admissible provided admissible foundation evidence is available and will be offered at the trial.

(2) A report or a copy of a report made by a person who is a physician, chemist, firearms identification expert, examiner of questioned documents, fingerprint technician, or an expert or technician in some comparable scientific or professional field, concerning the results of an examination, comparison, or test performed by the person in connection with the investigation of the case against the defendant may, when certified by such person as a report made by the person or as a true copy thereof, be received as evidence of the facts stated therein.

(3) Unauthenticated copies of official records shall be admissible provided the copies were made from the original records and properly authenticated copies will be available at the trial.

(4) Written sworn statements of the persons who claim to have title or an interest in property shall be admitted to prove ownership or that the property was obtained without the owner's consent, and written sworn statements of such persons or of experts shall be admitted to prove the value of the property, provided that admissible evidence to prove ownership, value, or nonconsent is available and will be presented at the trial.

(5) Written sworn statements of witnesses who for reasons of ill health or for other valid reasons are unable to testify in person shall be admitted, provided that such witnesses or otherwise admissible evidence will be available at the trial to prove the facts stated in the statements.

(6) Oral or written summaries made by investigating officers or other persons, who are called as witnesses, of the contents of books, records, papers and other documents which they have examined but which are not produced at the hearing or previously submitted to defense counsel for examination, provided the documents and summaries would otherwise be admissible. It shall be permissible for a police officer in charge of the investigation to give an oral summary.

Subd. 2. Evidence Warranting Finding of Indictment. The grand jury may find an indictment when upon all of the evidence there is probable cause to believe that an offense has been committed and that the defendant committed it. Reception of inadmissible evidence shall not be grounds for dismissal of an indictment if there is sufficient admissible evidence to support the indictment.

Subd. 3. Presentments Abolished. The grand jury may not find or return a presentment.

Comment—Rule 18

Rule 18.07 Finding and Return of Indictment

An indictment may be found only upon the concurrence of 12 or more jurors. When so found, it shall be signed by the foreperson, whether the foreperson be one of the 12 concurring or not, and delivered to a judge in open court. If 12 jurors shall not concur in finding an indictment, the foreperson shall so report in writing to the court forthwith, and any charges filed against the defendant for the offenses considered and upon which no indictment was returned shall be dismissed. The failure to find an indictment or the dismissal of the charge shall not prevent the case from again being submitted to a grand jury as often as the court shall direct

Comment—Rule 18

Rule 18.08 Secrecy of Proceedings

Every grand juror and every qualified interpreter for a grand juror with a sensory disability present during deliberations or voting shall keep secret whatever that juror or any other juror has said during deliberations and how that juror or any other juror has voted. Disclosure of matters occurring before the grand jury, other than its deliberations and the vote of any juror, may be made to the prosecuting attorney for use in the performance of the prosecuting attorney's duties, and to the defendant or defense counsel pursuant to Rule 18.05 of this rule governing the record of the grand jury proceedings. Otherwise, no juror, attorney, interpreter, stenographer, reporter, operator of a recording device, typist who transcribes recorded testimony, clerk of court, law enforcement officer, parent, guardian or other supportive person who attended the grand jury in accordance with Rule 18.04 while a child testified, or court attaché may disclose matters occurring before the grand jury except when directed by the court preliminary to or in connection with a judicial proceeding. Unless the court directs otherwise, no person shall disclose the finding of an indictment until the defendant is in custody or appears before the court except when necessary for the issuance and execution of a summons or warrant, provided, however, disclosure may be made by the prosecuting attorney by notice to the defendant or defense counsel of the indictment and the time of defendant's appearance in the district court, if in the discretion of the prosecuting attorney such notice is sufficient to insure defendant's appearance.

Comment—Rule 18

Rule 18.09 Tenure and Excuse

A grand jury shall be drawn to serve for a specified period of time, not to exceed 12 months, designated by order of court. It shall not be discharged and its powers shall continue: (a) until the specified period of its service is completed or; (b) until its successor is drawn or; (c) until it has completed an investigation, already begun, of a particular offense, whichever is the later.

The tenure and powers of a grand jury are not affected by the beginning or expiration of a term of court.

At any time for cause shown the court may excuse a juror either temporarily or permanently, and in either event the court may impanel another person in place of the juror excused.

Comment—Rule 18

Rule 18.01, subd. 1 follows substantially the first sentence of F.R.Crim.P. 6 except that it requires that a grand jury shall be summoned not only whenever required by the public interest but also when requested by the county attorney. In this respect, it also changes Minn. Stat. § 628.42 (1971). Rule 18.01, subd. 1, permits more than one grand jury to be drawn or to serve at one time.

Under Rules 18.01, subd. 1 and 18.09 the grand jury shall be drawn and summoned and shall serve without regard to terms of court. This changes Minn. Stat. § 628.42, providing that the grand jury shall be drawn and summoned for a general term of court and requiring the order therefor to be entered 15 days before the term, and also changes Minn. Stat. § 628.46 (1971) which requires the venire for the grand jury panel to be issued 12 days before the first day of the term and summons to be served on the grand jurors 10 days before the beginning of the term. It also changes Minn. Stat. § 484.30 (1971) providing for a grand jury to be ordered for a special term of court.

Rule 18.01, subd. 2 continues statutory law (See Minn. Stat. §§ 593.13, 593.14 (1971).) For the selection of persons for the grand jury list from which the grand jury are to be drawn and summoned, except that, adopting the policy expressed in the Federal Jury Selection Act, 28 U.S.C. § 1861, and to meet constitutional requirements, Rule 18.01, subd. 2 requires that the persons on the grand jury list shall be selected at random from a fair cross section of the qualified residents of the county. The method by which this shall be done is left to the determination of the jury commission or judges making the selection of persons for the list. This changes the "key-man" selection process now followed in Ramsey, St. Louis and Hennepin Counties.

Rule 18.01, subd. 2 continues special provisions governing St. Louis County. Rule 18.01, subd. 2 continues existing practice provided by law (Minn. Stat. §§ 628.42, 628.45, 628.46 (1971)) for drawing the jurors from the grand jury list. The time and manner of summoning grand jurors shall be prescribed by rule or order of court.

Rule 18.02, subd. 1 abolishes the challenges to the grand jury panel and to individual jurors provided by Minn. Stat. § 628.52 (1971) and provides that objections to the panel and individual jurors shall be made solely by motion to dismiss the indictment. (See also Rule 17.06, subd. 2(1)).

The grounds for objections to the panel or to individual jurors enumerated in Minn. Stat. §§ 628.53, 628.54 (1971) are intended to be preserved by Rule 18.02, subd. 2 together with any other objections based on the grounds specified in Rule 18.02, subd. 2.

The effect of a dismissal of an indictment under Rule 18.02, subd. 2 is covered by Rule 17.06, subd. 4.

The second sentence of Rule 18.02, subd. 2 adopts F.R.Crim.P. 6(b)(2) that the indictment shall not be dismissed for disqualification of individual jurors if 12 or more other jurors concurred in the indictment.

Rule 18.03, subd. 1 continues present statutory law (Minn. Stat. § 628.41) as to the number of grand jury members and the quorum needed to conduct business.

Rule 18.03, subd. 2 continues present statutory law (Minn. Stat. §§ 628.56, 628.57 (1971)) for the organization and conduct of the proceedings of a grand jury except as otherwise provided by these rules. (See Rules 18.03, subd. 3 (charge), 18.04 (who may be present), 18.05, subd. 1 (record), 18.06 (kind and character of evidence).)

Rule 18.03, subd. 3 permits the court to instruct the jury under applicable rules and statutes without reading any particular statutes or rules.

Rule 18.04, specifying the persons who may be present before the grand jury, except when the jurors are deliberating or voting, is intended to take the place of those portions of Minn. Stat. §§ 628.63 and 630.18(3) (1971) which permit only the county attorney to be present at the request of the grand jury to examine the witnesses. The prosecuting attorney is entitled under the rule to be present whether the jury requests it or not.

Rule 18.04 also permits the presence of the following: qualified interpreters for those handicapped in communication as defined in Rule 5 and Minn. Stat. §§ 611.31- 611.34 (1992); reporters or operators of a recording instrument to make the record required by Rule 18.05, subd. 1 (see F.R.Crim.P. 6(d)); a designated peace officer; and the attorney for a witness who has either effectively waived immunity from self-incrimination or been granted use immunity by the court.

Rule 18.04 also allows qualified interpreters for jurors with sensory disabilities to be present during grand jury proceedings including deliberations or voting. This is in accord with Minn. Stat. § 593.32 and Rule 809 of the Jury Management Rules in the General Rules of Practice for District Courts which prohibit exclusion from jury service for certain reasons including sensory disability. Further, this provision allows the court to make reasonable accommodation for such jurors under the Americans with Disabilities Act. 42 U.S.C. § 12101 et seq.

Rule 18.05, subd. 1, providing for a verbatim record of all statements made and events occurring before the grand jury except during deliberations and voting, supercedes that portion of Minn. Stat. § 628.57 (1971) which provided that the minutes of the evidence taken before the grand jury shall not be preserved. (Minn. Stat. §§ 628.65, 628.66 (1971) are not affected.) This rule as amended is similar to the special rule of practice for the First Judicial District which was upheld by the Supreme Court in State v. Hejl, 315 N.W.2d 592 (Minn.1982) as being consistent with the original language of Rule 18.05. The purpose of Rule 18.05 as amended is to assure that everything said or occurring before the grand jury will be recorded except during deliberations and voting. This would include any statements made by the prosecuting attorney to the grand jury whether or not any witnesses are present. However, the names of the grand jurors are not to be recorded. Of course, under Rule 18.04 only grand jury members may be present during deliberations and voting.

Under Rule 18.05, subd. 1, the record may be disclosed to the court or to the prosecuting attorney, and to the defendant for good cause (This would include a "particularized need." Dennis v. United States, 384 U.S. 855, 869-870 (1966).) or on a showing that grounds exist for a motion to dismiss the indictment because of occurrences before the grand jury. In addition, the defendant, under Rule 9.01, subd. 1, may obtain from the prosecuting attorney any portions of the grand jury proceedings already transcribed and possessed by the prosecuting attorney.

Rule 18.05, subd. 2, supplementing the discovery rules (Rule 9.01, subd. 1), permits the defendant to obtain a transcript of the testimony of grand jury witnesses, subject to protective orders under Rule 9.03, subd. 5. (See ABA Standards, Discovery and Procedure Before Trial, 2.1(a)(iii) (Approved Draft, 1970).) This rule does not preclude the court from ordering that the defendant be supplied with such a transcript during the trial, upon a showing of good cause.

Rule 18.06, subd. 1 supersedes Minn. Stat. § 628.59 (1971).

Rule 18.06, subd. 2, providing that an indictment may be found upon probable cause changes Minn. Stat. § 628.03 (1971) and that part of § 628.02 which is inconsistent with the rule.

Rule 18.06, subd. 3, abolishes the presentment provided by Minn. Stat.§§ 628.03, 628.04 (1971).

Rule 18.07 adopts the substance of Minn. Stat. § 628.08 (1971) except that the indictment shall bear only the signature of the foreperson instead of the foreperson's signed endorsement that it is a true bill. The requirement of Rule 18.07 that an indictment be "delivered to a judge in open court" is not inconsistent with the general requirement of Rule 18.08 that no person shall disclose the finding of an indictment until the defendant is in custody or appears before the court. Delivery of the indictment does not mean that it must be read or disclosed in court. Also under Rule 33.04 the prosecuting attorney may request the court to delay the filing of the indictment until the arrest of the defendant involved.

The provision that if an indictment is not voted, the foreperson shall so report to the court forthwith in writing (See F.R.Crim.P. 6(f).) was not contained in Minn. Stat. § 628.08 (Repealed, 1979 c. 233, § 42).

The provisions of the first sentence of Rule 18.08 for secrecy on the part of the grand jurors is taken from Minn. Stat. § 628.64 (1971). Additionally it provides that any interpreters for grand jurors with a sensory disability shall have that same obligation of secrecy. As to the confidentiality obligation of interpreters generally see Canon 5 of the Code of Professional Responsibility for Interpreters in the Minnesota State Court System.

That part of the second sentence of Rule 18.08 providing for disclosures to the prosecuting attorney for use in the performance of the prosecuting attorney's duties comes from F.R.Crim.P. 6(e). The provision in the second sentence for disclosure to the defendant is in accord with Rule 18.05. The third sentence of Rule 18.08 imposing secrecy on the persons named--except as permitted by Rules 18.08 and 18.05--or except when ordered by the court in connection with a judicial proceeding, is taken from F.R.Crim.P. 6(e).

The first part of the last sentence of Rule 18.08 forbidding disclosure of an indictment until the defendant is in custody or appears in court except when necessary for the issuance of a warrant or summons (See Rule 19.01) is taken from F.R.Crim.P. 6(e); and the following proviso adopts the substance of the last sentence of Minn. Stat. § 628.68 (1971). The rule, however, leaves it to the discretion of the prosecuting attorney to determine whether to notify the defendant or defense counsel of the indictment without the issuance of a warrant or summons.

Rule 18.09 making the grand jury session independent of the terms of court adopts the substance of F.R.Crim.P. 6(g) and takes the place of Minn. Stat. § 628.58 (1971). (See also Rule 18.01, subd. 1.)

The object of Rules 18.09 and 18.01, subd. 1 is that a grand jury shall always be available, without regard to terms of court, to be summoned into session and convened when required under Rule 18.01 or otherwise.

That portion of Rule 18.09 authorizing the court to excuse a grand juror for good cause is taken from F.R.Crim.P. 6(g), and enlarges the power of the court under Minn. Stat. § 628.49 (1971). The court may excuse grand jurors for the reasons specified in § 628.49 and upon other grounds showing good cause.

Rule 19. Warrant or Summons Upon Indictment; Appearance Before District Court

Rule 19.01 Issuance

When an indictment is filed, a warrant for the arrest of each defendant named in the indictment shall be issued by the court upon the request of the prosecuting attorney, except that a summons instead of a warrant shall be issued upon the request of the prosecuting attorney or by direction of the court or if the defendant is a corporation.

If the defendant is in custody, the court may order the officer having the defendant in custody to bring the defendant before the court at a specified time and date.

More than one warrant or summons may be issued for the same defendant. If a defendant other than a corporation for whom a summons has been issued fails to appear in response to a summons, a warrant shall be issued.

Comment—Rule 19

Rule 19.02 Form

Subd. 1. Warrant. The warrant shall be signed by the judge; shall contain the name of the defendant or, if that name is unknown, any name or description by which the defendant can be identified with reasonable certainty; shall describe the offense charged in the indictment; and shall command that the defendant be arrested and brought before the court. The amount of bail and other conditions of release may be set by the court and endorsed on the warrant.

Subd. 2. Summons. The summons shall be signed by the judge and shall summon the defendant to appear before the court at a specified time and place to answer to the indictment. A copy of the indictment shall be attached to the summons.

Comment—Rule 19

Rule 19.03 Execution or Service; Certification of Execution or Service

Subd. 1. By Whom. The warrant may be executed by any officer authorized by law. The summons may be served by any officer authorized to execute a warrant, and if served by mail, it may be served by the clerk.

Subd. 2. Territorial Limits. The warrant may be executed or the summons may be served at any place within the state except where prohibited by law.

Subd. 3. Manner. The warrant shall be executed or summons served in the manner provided by Rule 3.03, subd. 3.

Subd. 4. Certification. The execution of a warrant or the service of a summons shall be certified as provided by Rule 3.03, subd. 4.

Subd. 5. Unexecuted Warrants. At the request of the prosecuting attorney made at any time while the indictment is pending, a warrant returned unexecuted or a summons returned unserved or a duplicate thereof may be delivered to any authorized officer or person for execution or service.

Comment—Rule 19

Rule 19.04 Appearance of Defendant Before Court

Subd. 1. Appearance. The defendant shall be taken promptly before the district court which issued the warrant.

Subd. 2. Statement to Defendant. A defendant appearing initially before the district court under a warrant of arrest or in response to a summons, shall be advised of the charges. If the defendant has not received a copy of the indictment, the defendant shall be provided with a copy.

The court shall also advise the defendant substantially as required by Rule 5.01.

Subd. 3. Appointment of Counsel. If the defendant is not represented by counsel and is financially unable to afford counsel, the court shall appoint counsel for the defendant.

Subd. 4. Date for Arraignment. Upon defendant's initial appearance before the district court, the defendant may be arraigned, upon the defendant's request and with the consent of the court. If the defendant is not arraigned at the initial appearance, a date shall be set for the arraignment upon the indictment not more than seven (7) days from the date of such initial appearance. The time for appearance may be extended by the district court for good cause. Upon defendant's arraignment, whether at the initial appearance or at some later appearance prior to the Omnibus Hearing, the defendant may only enter a plea of guilty. A defendant who does not wish to plead guilty shall not be called upon to enter any other plea and the arraignment shall be continued until the Omnibus Hearing when pursuant to Rule 11.10 the defendant shall plead to the indictment or be given additional time within which to plead.

Subd. 5. Omnibus Hearing Date and Procedure. If upon arraignment, the defendant does not plead guilty, a date shall be fixed, not more than seven (7) days from the date of the arraignment, unless the court for good cause related to the particular case, upon motion of the prosecuting attorney or the defendant or upon the court's initiative, extends the time, when an Omnibus Hearing shall be held in accordance with Rule 11.

Subd. 6. Notice by Prosecuting Attorney.

(1) Notice of Evidence and Identification Procedures. When the prosecution has (1) any evidence against the defendant obtained as a result of a search, search and seizure, wiretapping, or any form of electronic or mechanical eavesdropping, (2) any confessions, admissions or statements in the nature of confessions made by the defendant, (3) any evidence against the defendant discovered as the result of confessions, admissions or statements in the nature of confessions made by the defendant, or (4) when in the investigation of the case against the defendant, any identification procedures were followed, including but not limited to lineups or other observations of the defendant and the exhibition of photographs of the defendant or of any other persons, the prosecuting attorney, on or before the date set for defendant's arraignment, shall notify the defendant or defense counsel in writing of such evidence and identification procedures.

(2) Notice of Additional Offenses. The prosecuting attorneys shall notify the defendant or defense counsel in writing of any additional offenses the evidence of which may be offered at the trial under any exceptions to the general exclusionary rule. The notice shall be given at the Omnibus Hearing under Rule 11 or as soon thereafter as the offense becomes known to the prosecuting attorney. Such additional offenses shall be described with sufficient particularity to enable the defendant to prepare for trial. The notice need not include offenses for which the defendant has been previously prosecuted, or those that may be offered in rebuttal of the defendant's character witnesses or as a part of the occurrence or episode out of which the offense charged in the indictment arose.

Subd. 7. Discovery. Before the date set for the Omnibus Hearing the prosecution and defendant shall complete the discovery that is required by Rules 9.01, subd. 1 and 9.02, subd. 1 to be made without the necessity of an order of court.

Comment—Rule 19

Rule 19.05 Bail or Conditions of Release

Upon the defendant's initial appearance before the district court following an indictment, the court may, in accordance with Rule 6 set bail or other conditions of release or may continue or modify bail or conditions of release previously ordered.

Comment—Rule 19

Rule 19.06 Record

A verbatim record shall be made of the proceedings before the court upon defendant's initial appearance and arraignment and of the Omnibus Hearing.

Comment—Rule 19

Rule 19 relating to the warrant or summons on an indictment and the subsequent procedures parallels for the most part Rules 3, 4, 5, 7, 8, 11 governing the warrant or summons on a complaint and the procedures thereafter followed, all of which lead up to the Omnibus Hearing under Rule 11. The necessary differences between the two procedures under an indictment and a complaint are reflected in Rule 19.

Rule 19.01 provides for the issuance of a warrant of arrest or summons upon an indictment when requested by the prosecuting attorney, and a summons shall be issued when directed by the court. (See F.R.Crim.P. 9(a).) (Rule 19.01 takes the place of Minn. Stat. §§ 630.02, 630.03 (1971) providing for bench warrants.) (See also Rule 18.08 providing for notice to the defendant or defense counsel at the discretion of the prosecuting attorney.)

That part of Rule 19.01 providing for the issuance of a summons for a corporation takes the place of Minn. Stat. § 630.15 (1971).

The provision of Rule 19.01 that a defendant in custody may be ordered by the court to be brought before the court at a specified time and place is taken from Minn. Stat. § 630.01 (1971).

Rule 19.01 permits more than one warrant or summons to be issued upon the same indictment as for example, for codefendants. (See F.R.Crim.P. 9(a).)

If a defendant other than a corporation does not respond to a summons a warrant shall issue. (See F.R.Crim.P. 9(a).) If a corporation does not respond to a summons, the court may proceed as provided in Rule 14.02, subd. 4.

Rule 19.02, subd. 1 provides that the warrant shall be signed by a judge of the district court. The form of the warrant follows substantially that prescribed for a warrant upon a complaint by Rule 3.02, subd. 1 except that the indictment warrant directs the defendant to be brought before the district court, and Rule 19.04, subd. 1 requires that this be done promptly.

The amount of bail and other conditions of release may be set by the district court (See Rule 6.02) and endorsed on the warrant. (See F.R.Crim.P. 9(b)(1) and Minn. Stat. § 630.05 (1971).) (See also Rule 19.05).

The form of summons prescribed by Rule 19.02, subd. 2 is substantially the same as that prescribed by Rule 3.02, subd. 3 for a summons on a complaint.

Rule 19.03 governing execution or service of a warrant or summons upon an indictment and proof of execution or service follows substantially Rule 3.03 governing the similar procedures relating to a warrant or summons on a complaint.

Upon the defendant's first appearance before the district court under Rule 19.04, the defendant shall be advised of the charges; provided with a copy of the indictment; given the advice required by Rule 5.01; counsel shall be appointed for a defendant who is unrepresented and unable to afford counsel (Rule 19.04, subd. 3); the bail or conditions of release set, continued, or modified in accordance with the provisions of Rule 6.02 (Rule 19.05); and a date shall be fixed for arraignment (Rule 13), which shall be held not more than 7 days after the appearance in district court, unless the time is extended for good cause. (Rule 19.04, subd. 5). Instead of having a separate arraignment, Rule 19.04, subd. 4, permits the arraignment and initial appearance to be consolidated. This is possible only if requested by the defendant and agreed to by the court. Ordinarily, the Omnibus Hearing would then be held within seven (7) days after the consolidated initial appearance and arraignment under Rule 19.04, subd. 5, but that rule also permits the court to extend that time for good cause.

On or before the date of the arraignment the prosecuting attorney shall give the Rasmussen notice required by Rule 19.04, subd. 6(1). (See Rule 7.01 and Comments to Rule 7.01).

Upon the date fixed for arraignment, the defendant shall be arraigned as provided by Rule 13. If the defendant does not plead guilty, a date shall be fixed for the Omnibus Hearing under Rule 11, which shall be held not more than 7 days from the date of the arraignment unless extended for good cause. (Rule 19.04, subd. 4 and subd. 5).

Between defendant's first appearance in the district court and the Omnibus Hearing, the prosecution and defendant shall complete the discovery procedures required by Rules 9.01, subd. 1; 9.02, subd. 1 (Rule 19.04, subd. 7).

The parties shall serve their motions under Rule 10 at least 3 days before the Omnibus Hearing (Rule 10.04) (including motions to suppress based on the Rasmussen notice given under Rule 19.04, subd. 6(1)). (See also comments to Rule 11.03.)

At or before the Omnibus Hearing the prosecution shall give the Spreigl notice required by Rule 19.04, subd. 6(4). (See Rule 7.02 and comments to Rule 7.02.)

The Omnibus Hearing shall be held in the district court in accordance with the provisions of Rule 11. (See comments to Rule 11.) If at the Omnibus Hearing the defendant wishes to challenge the sufficiency of the evidence heard by the grand jury to support the indictment that challenge is governed by Rule 17.06, subd. 2(1)(a) and Rule 18.06, subds. 1 and 2. The provision in Rule 11.03 concerning a motion that there is an insufficient showing of probable cause applies only to complaints and not to indictments.

By Rule 19.06 a verbatim record shall be made of the defendant's first appearance before the district court, the arraignment, and the Omnibus Hearing.

Rule 20. Proceedings For Mentally Ill or Mentally Deficient

Rule 20.01 Competency to Proceed

Subd. 1. Competency to Proceed Defined. A defendant shall not be permitted to waive counsel who lacks sufficient ability to knowingly, voluntarily, and intelligently waive the constitutional right to counsel, to appreciate the consequences of the decision to proceed without representation by counsel, to comprehend the nature of the charge and proceedings, the range of applicable punishments, and any additional matters essential to a general understanding of the case. The court may not proceed under this rule before a lawyer consults with the defendant and the lawyer has an opportunity to be heard by the court. A defendant shall not be permitted to enter a plea or be tried or sentenced for any offense if the defendant:

(1) lacks sufficient ability to consult with a reasonable degree of rational understanding with defense counsel; or

(2) is mentally ill or mentally deficient so as to be incapable of understanding the proceedings or participating in the defense.

Subd. 2. Proceedings. If during the pending proceedings, the prosecuting attorney, defense counsel or the court has reason to doubt the competency of the defendant, then the prosecuting attorney or defense counsel by motion or the court on its initiative shall raise that issue. Any such motion may be brought over the objection of the defendant. The motion shall set forth the facts constituting the basis for the motion, but defense counsel shall not divulge communications in violation of the attorney-client privilege. The bringing of the motion by defense counsel does not waive the attorney-client privilege. If the court in which a criminal case is pending determines upon motion of the prosecuting attorney or defense counsel or upon initiative of the court that there is reason to doubt the defendant's competency as defined by this rule, the court shall suspend the criminal proceedings and shall proceed as follows:

(1) Misdemeanors. If the charge is a misdemeanor, the court having trial jurisdiction shall either proceed according to this rule, or cause civil commitment proceedings to be instituted against the defendant, or unless contrary to the public interest, dismiss the case.

(2) Probable Cause--Felony or Gross Misdemeanor. In the case of a felony or gross misdemeanor, unless the issue of probable cause has previously been determined, the district court, upon motion, before proceeding further shall determine whether there is sufficient probable cause stated on the face of the complaint. If the court determines that the complaint does not state sufficient probable cause to believe the defendant committed the offense charged, the charges against the defendant shall be dismissed.

(3) Medical Examination. The court shall appoint at least one examiner as defined in the Minnesota Commitment Act of 1982, Minnesota Statutes, chapter 253B, or successor statute to examine the defendant and to report to the court on the defendant’s mental condition.

If the defendant is otherwise entitled to release, confinement for the examination may not be ordered if the examination can be done adequately on an outpatient basis. The court may make appearance for the outpatient examination a condition of the defendant’s release. If the examination cannot be adequately done on an outpatient basis or if the defendant is not otherwise entitled to be released, the court may order the defendant confined in a state mental hospital or other suitable hospital or facility for the purpose of such examination for a specified period not to exceed 60 days. If the defendant or prosecution has retained a qualified psychiatrist or clinical psychologist or physician experienced in the field of mental illness, the court on request of the defendant or prosecuting attorney shall direct that such psychiatrist or psychologist or physician be permitted to observe the examination and to also examine the defendant. Both the examiner appointed by the court and any examiner retained by the defense or prosecuting attorney may obtain and review the report of any prior examination conducted under this rule. The court shall further direct that if any of the mental-health professionals appointed to examine the defendant concludes that the defendant presents an imminent risk of serious danger to another person, is imminently suicidal, or otherwise needs emergency intervention, the mental-health professional shall promptly notify the prosecuting attorney, defense counsel, and the court.

(4) Report of Examination. At the conclusion of the examination, a written report of the examination shall be forwarded to the judge who ordered the examination, and the judge shall cause copies of the report to be delivered forthwith to the prosecuting attorney and to defense counsel. The contents of the report shall not be otherwise disclosed until the hearing on the defendant's competency. The report of the examination shall include without limitation:

(1) A diagnosis of the mental condition of the defendant.

(2) If the defendant is mentally ill or mentally deficient, an opinion as to: (a) the defendant's capacity to understand the criminal proceedings and to participate in the defense; (b) whether the defendant presents an imminent risk of serious danger to another person, is imminently suicidal, or otherwise needs emergency intervention; (c) the treatment required, if any, for the defendant to attain or maintain competence with an explanation of the appropriate treatment alternatives by order of choice, including the extent to which the defendant can be treated without being committed to an institution and the reasons for rejecting such treatment if institutionalization is recommended; and (d) whether there is a substantial probability that with treatment or otherwise the defendant will ever attain the competency to proceed, and if so, in approximately what period of time, and the availability of the various types of acceptable treatment in the local geographical area, specifying the agencies or settings in which the treatment might be obtained and whether it would be available to an outpatient.

(3) A statement of the factual basis upon which the diagnosis and opinion are based.

(4) If the examination could not be conducted by reason of the defendant's unwillingness to participate therein, a statement to that effect with an opinion, if possible, as to whether the defendant's unwillingness was the result of mental illness or deficiency.

Subd. 3. Hearing and Determination of Competency.

(1) Request for Hearing. If either party files written objections to the report within ten (10) days after the receipt of a copy thereof, the court, upon notice to the parties, shall hold a hearing on the issue of the defendant's competency to proceed.

(2) Going Forward with Evidence. If the defense moved for the examination, the defense shall go forward first with evidence at the hearing. If the examination was on motion of the prosecuting attorney or on the initiative of the court, the prosecuting attorney shall go forward first with evidence unless the court otherwise directs.

(3) Report and Evidence. At the hearing, evidence as to the defendant's mental condition may be admitted, including the report of the person who examined the defendant at the direction of the court. The person who prepared the report or any individual designated by that person as a source of information for preparation of the report, other than the defendant or defense counsel, is considered the court's witness and may be called and cross-examined as such by either party.

(4) Defense Counsel as Witness. To the extent that doing so does not divulge communications in violation of the attorney-client privilege, defense counsel may relate to the court, subject to examination by the prosecuting attorney, personal observations of and conversations with the defendant. Those disclosures do not automatically disqualify defense counsel from continuing to represent the defendant. The court may inquire of defense counsel concerning the attorney-client relationship and the defendant's ability to communicate effectively with defense counsel. However, the court may not require defense counsel to divulge communications in violation of the attorney-client privilege. The prosecuting attorney may not cross-examine defense counsel responding to the court's inquiry.

(5) Determination Without Hearing. If neither the prosecution nor the defense files written objections to the report within the ten-day period, the court without a hearing may determine the defendant's competency to proceed upon the basis of the report.

(6) Decision and Sufficiency of Evidence. If upon consideration of the report and the evidence received at any hearing, the court finds by the greater weight of the evidence that the defendant is competent, the court shall enter an order finding that the defendant is competent. Otherwise, the court shall enter an order finding that the defendant is incompetent.

Subd. 4. Effect of Finding on Issue of Competency to Proceed.

(1) Finding of Competency. If the court determines that the defendant is competent to proceed, the criminal proceedings against the defendant shall be resumed.

(2) Finding of Incompetency. If the charge against the defendant is a misdemeanor and the court determines that the defendant is incompetent to proceed, the charge shall be dismissed. If the charge against the defendant is a gross misdemeanor or felony and the court determines that the defendant is incompetent to proceed, the criminal proceedings against the defendant shall be further suspended except as provided by Rule 20.01, subd. 6.

(a) Finding of Mental Illness. If the court determines that the defendant is mentally ill so as to be incapable of understanding the criminal proceedings or participating in the defense, and the defendant is under civil commitment as mentally ill, the court shall order that the commitment be continued, and if not under commitment, the court shall cause civil commitment proceedings to be instituted against the defendant. The commitment or continuing commitment shall be subject to the supervision of the trial court as provided by Rule 20.01, subd. 5.

(b) Finding of Mental Deficiency. If the court finds the defendant to be mentally deficient so as to be incapable of understanding the criminal proceedings or participating in the defense, and the defendant is under commitment as mentally deficient to the guardianship of the commissioner of public welfare, the court shall order the defendant remanded to the care and custody of the commissioner, and if not under commitment, the court shall cause civil commitment proceedings to be instituted against the defendant. The commitment or continuing commitment shall be subject to the supervision of the trial court as provided by Rule 20.01, subd. 5.

(c) Appeal. Either party shall have the right of appeal to the Court of Appeals from a determination of the probate court upon the civil commitment proceedings. The appeal shall be on the record only pursuant to Rule 28. In all civil commitment proceedings instituted under this rule, a verbatim record of the proceedings shall be made.

Subd. 5. Continuing Supervision by the Court in Felony and Gross Misdemeanor Cases. The head of the institution to which the defendant is committed under civil commitment proceedings, or if the defendant is not committed to an institution, the officer or other person charged with the defendant's supervision or to whom the defendant has been committed, shall report periodically to the trial court, at such times as the court shall provide, on the defendant's mental condition with an opinion as to the defendant's competency to proceed. The reports shall be made not less than once every six months unless otherwise ordered. Copies of the reports shall be furnished to the prosecuting attorney and to defense counsel.

When the court on application of the prosecuting attorney, defense counsel, the defendant, or the person having supervision over the defendant, or on the court's initiative, determines, after a hearing with notice to the parties, that the defendant is competent to proceed, the criminal proceedings against the defendant shall be resumed. Unless the criminal charges against the defendant have been dismissed as provided by Rule 20.01, subd. 6, the trial court and the prosecuting attorney shall be notified of any proposed institutional transfer, partial institutionalization status, and any proposed termination, discharge, or provisional discharge of the civil commitment. The prosecuting attorney shall have the right to participate as a party in any proceedings concerning such proposed changes in the defendant's civil commitment or status.

Subd. 6. Dismissal of Criminal Proceedings. Except when the defendant is charged with murder, the criminal proceedings shall be dismissed upon the expiration of three years from the date of the finding of the defendant's incompetency to proceed unless the prosecuting attorney, before the expiration of the three-year period, files a written notice of intention to prosecute the defendant when the defendant has been restored to competency.

Subd. 7. Determination of Legal Issues Not Requiring Defendant's Participation. The fact that the defendant is incompetent to proceed shall not preclude defense counsel from making any legal objection or defense which is susceptible of fair determination before trial without the personal participation of the defendant.

Subd. 8. Admissibility of Defendant's Statements. When a defendant is examined under this rule, any statement made by the defendant for the purpose of the examination and any evidence derived from the examination shall be admissible in evidence at the proceedings to determine whether the defendant is competent to proceed.

Subd. 9. Credit for Time Spent in Confinement. If the court orders criminal proceedings resumed on a finding that defendant is competent to proceed, and the defendant is convicted of the charge, the time the defendant has spent confined to a hospital or other facility under this rule shall be credited upon any jail or prison sentence imposed.

Comment—Rule 20

See comment following Rule 20.03.

Rule 20.02 Medical Examination of Defendant Upon Defense of Mental Deficiency or Mental Illness

Subd. 1. Authority of Court to Order Examination. The court having trial jurisdiction over the offense charged may order a mental examination of the defendant when the defense has notified the prosecuting attorney pursuant to Rule 9.02, subd. 1(3)(a) of an intention to assert a defense of mental illness or deficiency, when the defendant in a misdemeanor case pleads not guilty by reason of mental illness or mental deficiency, or when at the trial of the case, the defendant offers evidence of such mental condition.

Subd. 2. Examination of the Defendant. If the court orders a mental examination of the defendant, it shall appoint at least one examiner as defined in the Minnesota Commitment Act of 1982, Minn. Stat. Ch. 253B, or successor statute to examine the defendant and report upon the defendant's mental condition. For the purpose of the examination, the court, upon a special showing of need therefor, may order the defendant to be confined to a hospital or other suitable facility for a specified period not to exceed 60 days. If the defendant or prosecution has retained an examiner as defined in the Minnesota Commitment Act of 1982, Minn. Stat. Ch. 253B, or successor statute, the court on request of the defendant or prosecuting attorney shall direct that such examiner be permitted to observe the mental examination and to conduct a mental examination of the defendant also.

Subd. 3. Refusal of Defendant to be Examined. If the defendant does not participate in the examination so that the examiner is unable to make an adequate report to the court, the court may prohibit the defendant from introducing evidence of the defendant's mental condition, may strike any such evidence previously introduced, may permit any other party to introduce evidence of defendant's refusal to cooperate and to comment thereon to the trier of the facts, and may make any such other ruling as it deems just.

Subd. 4. Report of Examination. At the conclusion of the examination, a written report of the examination shall be forwarded to the judge who ordered the examination, and the court shall cause copies of the report to be delivered forthwith to the prosecuting attorney, and to defense counsel. The contents of the report shall not otherwise be disclosed except as hereafter provided by this rule. The report of the examination shall contain:

(1) A diagnosis of the defendant's mental condition as requested by the court;

(2) If so directed by the court an opinion as to whether, because of mental illness or deficiency, the defendant at the time of the commission of the offense charged was laboring under such a defect of reason as not to know the nature of the act constituting the offense with which defendant is charged or that it was wrong;

(3) Any opinion requested by the court that is based on the examiner's diagnosis;

(4) A statement of the factual basis upon which the diagnosis and any opinion are based.

If the examination cannot be conducted by reason of the defendant's unwillingness to participate, the report shall so state and shall include, if possible, an opinion as to whether the unwillingness of the defendant was the result of mental illness or deficiency.

Subd. 5. Admissibility of Evidence at Trial. No evidence derived from the examination shall be received against the defendant unless the defendant has previously made his or her mental condition an issue in the case. If the defendant's mental condition is an issue, any party may call the person who examined the defendant at the direction of the court to testify as a witness at the trial and that person shall be subject to cross-examination by any other party. The report or portions thereof may be received in evidence to impeach the testimony of the person making it.

Subd. 6. Admissibility of Defendant's Statements. When a defendant is examined under Rule 20.01 or Rule 20.02, or both, the admissibility at trial of any statements made by the defendant for the purposes of the examination and any evidence obtained as a result of such statements shall be determined by the following rules:

(1) Notice by Defendant of Sole Defense of Mental Condition. If a defendant notifies the prosecuting attorney under Rule 9.02, subd. 1(3)(a) of an intention to rely solely on the defense of mental illness or deficiency or if the defendant in a misdemeanor case relies solely on the plea of not guilty by reason of mental illness or mental deficiency pursuant to Rule 14.01(c), statements made by the defendant for the purpose of the mental examination and evidence obtained as a result of the statements shall be admissible at the trial upon that issue.

(2) Separate Trial of Defenses. If a defendant notifies the prosecuting attorney under Rule 9.02, subd. 1(3)(a) of an intention to rely on the defense of mental illness or mental deficiency together with a defense of not guilty, or if the defendant in a misdemeanor case pleads both not guilty and not guilty by reason of mental illness or mental deficiency, there shall be a separation of the two defenses with a sequential order of proof before the court or jury in a continuous trial in which the defense of not guilty shall be heard and determined first, and then the defense of the defendant's mental illness or deficiency.

(3) Effect of Separate Trial. If the defendant relies on the two defenses, the statements made by the defendant for the purpose of the mental examination and any evidence obtained as a result of such statements shall be admissible against the defendant only at that stage of the trial relating to the defense of mental illness or mental deficiency.

(4) Procedure Upon Separated Trial of Defenses.

(a) Instructions to Jury. When the two defenses are separated for trial under this rule, the jury shall be informed at the commencement of the trial that the two defenses have been interposed; that the defense of not guilty will be tried first and then the defense of mental illness or mental deficiency; that if the jury finds that the elements of the offense charged have not been proved, the defendant will be acquitted; that if the jury finds the elements of the offense have been proved, the defense of mental illness or deficiency will then be tried and determined by the jury.

(b) Proof of Elements of Offense--Effect. Upon the trial of the defense of not guilty the jury, or the court, if a jury is waived, shall determine whether the elements of the offense charged have been proved beyond a reasonable doubt.

If the court or jury determines that the elements of the offense have not been proved beyond a reasonable doubt, a judgment of acquittal shall be entered.

If the court or jury determines that the elements of the offense have been proved beyond a reasonable doubt, the defense of mental illness or mental deficiency shall then be tried and determined by the jury, or by the court, if a jury is waived, and based upon that determination the jury or court shall render a verdict or make a finding: (1) of not guilty by reason of mental illness; or (2) of not guilty by reason of mental deficiency; or (3) of guilty. The court shall enter judgment accordingly. The defendant shall have the burden of proving the defense of mental illness or mental deficiency by a preponderance of the evidence.

Subd. 7. Simultaneous Examinations. The court may order that the examination for competency to proceed under Rule 20.01, an examination for civil commitment as mentally ill or mentally deficient under the Minnesota Commitment Act of 1982, Minn. Stat. Ch. 253B, or successor statute, and the examination authorized by Rule 20.02 be conducted simultaneously.

Subd. 8. Legal Effect of Finding of Not Guilty by Reason of Mental Illness or Deficiency.

(1) Mental Illness. When a defendant is found not guilty by reason of mental illness, and the defendant is under civil commitment as mentally ill, the court shall order that the commitment be continued, and if not under commitment, the court shall cause civil commitment proceedings to be instituted against the defendant and that the defendant be detained in a state hospital or other facility pending completion of the proceedings. The commitment or continuing commitment in felony and gross misdemeanor cases shall be subject to the supervision of the trial court as provided by Rule 20.02, subd. 8(4).

(2) Mental Deficiency. When a defendant is found not guilty by reason of mental deficiency and the defendant is under commitment to the guardianship of the commissioner of public welfare, the court shall order the defendant remanded to the care and custody of the commissioner, and if not under such commitment, the court shall cause civil commitment proceedings to be instituted against the defendant. The commitment or continuing commitment in felony and gross misdemeanor cases shall be subject to the supervision of the trial court as provided by Rule 20.02, subd. 8(4).

(3) Appeal. Either party shall have the right to appeal to the Court of Appeals from a determination of the court upon the civil commitment proceedings. The appeal shall be taken on the record only pursuant to Rule 28. In all commitment proceedings instituted under this rule, a verbatim record of the proceedings shall be made.

(4) Continuing Supervision. In felony and gross misdemeanor cases only, the trial court and the prosecuting attorney shall be notified of any proposed institutional transfer, partial hospitalization status, and any proposed termination, discharge, or provisional discharge of the civil commitment. The prosecuting attorney shall have the right to participate as a party in any proceedings concerning such proposed changes in the defendant's civil commitment or status.

Comment—Rule 20

See comment following Rule 20.03.

Rule 20.03 Disclosure of Reports and Records of Defendant's Mental Examinations

Subd. 1. Order for Disclosure. If a defendant notifies the prosecuting attorney under Rule 9.02, subd. 1(3)(a) of an intention to rely on the defense of mental illness or mental deficiency, the trial court, on motion of the prosecuting attorney and notice to defense counsel may order the defendant to furnish either to the court or to the prosecuting attorney copies of all medical reports and hospital and medical records previously or thereafter made concerning the mental condition of the defendant and relevant to the issue of the defense of mental illness or mental deficiency. If the copies of the reports and records are furnished to the court, the court shall inspect them to determine their relevancy. If the court determines they are relevant, they shall be delivered to the prosecuting attorney. Otherwise, they shall be returned to the defendant.

If the defendant is unable to comply with the court order, a subpoena duces tecum may be issued under Rule 22.

Subd. 2. Use of Reports and Records. If an order for disclosure of reports and records under Rule 20.03, subd. 1 is entered and copies thereof are furnished to the prosecuting attorney, the reports and records and any evidence obtained therefrom may be admitted in evidence only upon the issue of the defense of mental illness or mental deficiency when that issue is the sole defense or when it is tried as provided by Rule 20.02, subd. 6(4).

Comment—Rule 20

Rule 20 prescribes the detailed procedures to be followed when it appears that a defendant may be mentally incompetent to stand trial or when the defendant interposes a defense of mental irresponsibility. The rule fills in the omissions in existing procedures (Minn. Stat. §§ 611.026, 631.18, 631.19 (1971)) and attempts to meet the constitutional equal protection and due process requirements established by Jackson v. Indiana, 406 U.S. 715 (1972), McNeil v. Director, Patuxent Institution, 407 U.S. 245 (1972), Humphrey v. Cady, 405 U.S. 504 (1972), and Pate v. Robinson, 383 U.S. 375 (1966), which are not fully met by the present statutes. To the extent the statutes are inconsistent with Rule 20, they are superseded by the rule.

Rule 20 in authorizing a compulsory medical examination of the defendant (Rules 20.01, subd. 2(3) and 20.02, subd. 1) also provides procedures for avoiding infringement of the defendant's privilege against self-incrimination (Rule 20.02, subd. 6).

Rule 20.01 details the procedures relating to competency to proceed.

Rule 20.01, subd. 1 with some changes of language adopts the provisions of Minn. Stat. § 611.026 (1971) defining competency to proceed and also includes the additional elements as set forth in Unif.R.Crim.P. 463(b) (1987) and ABA Standards for Criminal Justice 7-4.1(b) (1985). The test for competency to proceed set forth in part (1) of the rule is as required by Dusky v. United States, 362 U.S. 402 (1960). The requirement for counsel consulting with the defendant before proceeding under the rule is from Unif.R.Crim.P. 464(c) (1987) and ABA Standards for Criminal Justice 7-4.4(a)(ii) (1985). The standard set forth in the rule for competency to waive counsel is from Unif.R.Crim.P. 711(a) and (d) (1987) and ABA Standards for Criminal Justice 7-5.3(b) (1985). See Rule 5.02 and the Comments to that rule concerning the appointment of counsel generally.

If the court before which the case is pending determines there is reason to doubt the defendant's competency and the charge is a felony or gross misdemeanor, the procedures prescribed by Rules 20.01, subd. 2(2) to 20.01, subd. 9 shall be followed.

If the charge is a misdemeanor, the court has the options of (1) following the procedures prescribed by Rules 20.01, subd. 2(2) to 20.01, subd. 9; (2) causing civil commitment proceedings to be instituted immediately under Minn. Stat. § 253B.07 (1982); or (3) dismissing the case, unless dismissal would be contrary to the public interest (Rule 20.01, subd. 2(1).)

Under Rule 20.01, subd. 2, the prosecuting attorney, defense counsel and the court all have a duty to raise the issue of the defendant's competency if a reasonable doubt of that exists. This is in accord with Unif.R.Crim.P. 464(a) (1987) and ABA Standards for Criminal Justice 7-4.2(a), (b) and (c) (1985). The prohibition in the rule against defense counsel divulging communications in violation of the attorney-client privilege is from Unif.R.Crim.P. 464(b) (1987) and ABA Standards for Criminal Justice 7-4.2(f) (1985).

Rule 20.01, subd. 2(2) provides that upon motion, before proceeding further, the district court shall determine whether the complaint sufficiently states probable cause on its face. If the court determines that probable cause is not sufficiently stated, the case shall be dismissed. If it determines that probable cause is sufficiently stated, the criminal proceedings are suspended and the procedures prescribed by Rules 20.01, subd. 2(2) to 20.01, subd. 9 shall be followed.

The first steps in that procedure under Rule 20.01, subds. 2(3) and (4), are the medical examination of the defendant and a determination of the defendant's competency upon the medical report, or after hearing if objection is made to the report (Rule 20.01, subd. 3). (These rules were originally derived from ALI Model Penal Code §§ 4.04-4.06 and Wis.Stat.§ 971.14). As revised, the rules are in substantial compliance with the Uniform Rules of Criminal Procedure (1987) and the American Bar Association Standards for Criminal Justice (1985). The preference in the rule for an outpatient examination if that can be adequately done is derived from Unif.R.Crim.P. 464(f) (1987) and ABA Standards for Criminal Justice 7-4.3 (1985). If the court determines that a defendant who is otherwise entitled to release will not appear for an outpatient examination, that would be sufficient cause to find that an outpatient examination cannot be adequately done and to order the defendant confined for the examination. See Rule 6 as to whether the defendant would otherwise be entitled to release from custody during the proceedings. In conducting the examination, the rule provides that the examiners may obtain and review any reports of prior examinations conducted under the rule. This includes prior reports conducted under both Rule 20.01 and Rule 20.02 This express authorization, which was adopted in 2005, is intended merely to clarify the rule and not to change it. The provision in Rule 20.01, subd. 2(3) for the mental-health professionals conducting the examination to promptly contact the court and counsel upon concluding the defendant poses any of the serious imminent risks specified is taken from Unif.R.Crim.P. 464(e)(6) (1987) and ABA Standards for Criminal Justice 7-3.2(b) (1985). The requirements for the examination report as set forth in Rule 20.01, subd. 2(4) are in substantial compliance with Unif.R.Crim.P. 464(f) (1987) and ABA Standards for Criminal Justice 7-4.5 (1985). The examiners appointed by the court to examine a defendant for the purpose of determining competency to proceed or for the purpose of a mental illness or mental deficiency defense must have the same qualifications as examiners appointed for civil commitment proceedings. Under Minn. Stat. § 253B.02, subd. 7 (1988) that means the examiner must be "a licensed physician or a licensed consulting psychologist, knowledgeable, trained and practicing in the diagnosis and treatment of the alleged impairment". If simultaneous examinations are ordered pursuant to Rule 20.02, subd. 7, the examiner appointed should then be qualified to provide a report for all the necessary purposes.

The provision in Rule 20.01, subd. 2(3), for the mental-health professionals conducting the examination to promptly contact the court and counsel upon concluding the defendant poses any of the serious imminent risks specified is taken from Unif.R.Crim.P. 464(e)(6) (1987) and ABA Standards for Criminal Justice 7-3.2(b) (1985). The requirements for the examination report as set forth in Rule 20.01, subd. 2(4), are in substantial compliance with Unif.R.Crim.P. 464(f) (1987) and ABA Standards for Criminal Justice 7-4.5 (1985). The examiners appointed by the court to examine a defendant for the purpose of determining competency to proceed or for the purpose of a mental illness or mental deficiency defense must have the same qualifications as examiners appointed for civil commitment proceedings. Under Minnesota Statutes, section 253B.02, subd. 7 (1988), that means the examiner must be “a licensed physician or a licensed consulting psychologist, knowledgeable, trained and practicing in the diagnosis and treatment of the alleged impairment.” If simultaneous examinations are ordered pursuant to Rule 20.02, subd. 7, the examiner appointed should then be qualified to provide a report for all the necessary purposes.

Rule 20.01, subd. 3 sets forth the procedure to be followed for determining competency based upon the report alone or together with a hearing if objection is made to the report. The provisions for going forward with the evidence as set forth in Rule 20.01, subd. 3(2) are taken from Unif.R.Crim.P. 466(f) (1987) and ABA Standards for Criminal Justice 7-4.8(c)(i) (1985). Rule 20.01, subd. 3(3) providing for either party to cross-examine the person who prepared the report or that person's sources is taken from Unif.R.Crim.P. 466(d) (1987) and ABA Standards for Criminal Justice 7-4.8(a)(i) and 7-4.8(b) (1985). The provisions in Rule 20.01, subd. 3(4) concerning defense counsel as a witness on competency are taken from Unif.R.Crim.P. 464(e)(1) and (2) (1987) and ABA Standards for Criminal Justice 7-4.8(b)(i) and (ii) (1985). The evidentiary standard set forth in Rule 20.01, subd. 3(6) is taken from Unif.R.Crim.P. 464(g) (1987) and ABA Standards for Criminal Justice 7-4.8(c)(ii) (1985).

If the defendant is found to be competent, the criminal proceedings shall be resumed (Rule 20.01, subd. 4(1)).

If the defendant is found to be incompetent and the charge is a misdemeanor, the case shall be dismissed (Rule 20.01, subd. 4(2)).

If the charge is a felony or gross misdemeanor and the defendant is found to be incompetent, the criminal proceedings shall continue to be suspended (Rule 20.01, subd. 4(2)), and the court shall follow the procedure established by Rules 20.01, subd. 4(2) to 20.01, subd. 6.

If the defendant is under civil commitment under Minn. Stat. Ch. 253B (1982), the civil commitment shall be continued (Rule 20.01, subd. 4(2)(a) and (b)). If the defendant is not under civil commitment, commitment proceedings under Minn. Stat. § 253B.07 (1982) in the probate court shall be instituted against the defendant.

At any time, on motion of the interested parties or on the court's initiative, a hearing shall be held to determine the defendant's competency, and if the defendant is found to be competent, the criminal proceedings shall be resumed. (There is no limitation on the time or number of these hearings.) (Rule 20.01, subd. 5).

The provisions for institution of civil commitment proceedings, for notice and for hearing before the trial court upon the termination of civil commitment and upon the issue of defendant's competency (Rules 20.01, subd. 4(2)(a); 20.01, subd. 4(2)(b); 20.01, subd. 5), and the provision for automatic dismissal of the criminal charges after 3 years (Rule 20.01, subd. 6) are intended to meet the constitutional equal protection and due process requirements established by Jackson v. Indiana, 406 U.S. 715 (1972).

Rule 20.01, subd. 4(2)(c) gives either party the right to appeal to the Court of Appeals from the determination of the court upon the civil commitment proceedings instituted under Rule 20.01, subd. 4(2)(a) and (b). The appeal shall be determined only upon the record made in the court, which shall be a verbatim record.

During the period of the defendant's incompetency, Rule 20.01, subd. 7 permits the defense attorney to make any legal objection or defense to the prosecution which can be determined without the presence of the defendant. (This could include motions to dismiss the indictment or complaint under Rules 18.02, subd. 2; 17.06) (See Wis.Stat. § 971.14(6)).

By Rule 20.01, subd. 8 statements made by the defendant to the court-appointed examiner for the purpose of the examination under Rule 20.01, subd. 2(3) and evidence derived therefrom are admissible at the proceedings to determine the defendant's competency (Rule 20.01, subd. 3). (See ALI Penal Code, § 4.09, Wis.Stat. § 971.18.) (For the admissibility of these statements at trial, see Rule 20.02, subd. 6.)

Rule 20.01, subd. 9 provides for credit for any confinement to a hospital or other facility under Rule 20.01, subd. 2(3).

Rule 20.02 details the procedures to be followed when the defense is not guilty by reason of mental illness or mental deficiency (Rules 14.01; 9.02, subd. 1(3)(a)).

The definition of mental illness and mental deficiency contained in Minn. Stat. § 611.026 (1971) with its judicial interpretations is not affected by these rules. (See State v. Rawland, 294 Minn. 17, 199 N.W.2d 774 (1972)).

Rule 20.02 is intended, first, to provide a procedure for compulsory mental examination of the defendant without infringing upon the defendant's constitutional privilege against self-incrimination as to statements made by the defendant for the purpose of the examination, (Rules 20.02, subd. 1 to subd. 7) and, second, to provide procedures following an acquittal by reason of mental illness or mental deficiency that will meet constitutional requirements of equal protection and due process (Rule 20.02, subd. 8). (See Jackson v. Indiana, 406 U.S. 715 (1972), McNeil v. Director, Patuxent Institution, 407 U.S. 245 (1972).)

By Rule 20.02, subd. 1 an order for compulsory mental examination is triggered by a defense notice under Rule 9.02, subd. 1(3)(a) of an intention to rely on the defense of mental illness or mental deficiency, by the defendant in a misdemeanor case pleading not guilty by reason of mental illness or mental deficiency, or when the defendant offers evidence of mental illness or mental deficiency at trial. Under Rule 9.02, subd. 1(3)(a), in felony and gross misdemeanor cases, a defendant who also intends to rely on the defense of not guilty of the elements of the offense charged must at the same time so notify the prosecution. (See Rule 20.02, subd. 6(2) providing for the trial procedure in the event the defendant gives notice of intention to rely on both the defenses of mental illness or mental deficiency and not guilty.)

Rule 20.02, subd. 1 authorizing compulsory mental examination of the defendant changes existing Minnesota law. (State v. Olson, 274 Minn. 225, 143 N.W.2d 69 (1966)) (For similar provisions and cases upholding their constitutionality, see Wis.Stat. § 971.16; Roberts v. State, 41 Wis.2d 537, 164 N.W.2d 525 (1969); State ex rel. LaFollette v. Raskin, 35 Wis.2d 607, 150 N.W.2d 318 (1967).)

Rule 20.02, subd. 2 providing for the examination is the same as Rule 20.01, subd. 2(3) governing the examination for competency to proceed. See the comments on Rule 20.01, subd. 2(3) as to the qualifications of the examiners appointed to examine the defendant. Under Rule 20.02, subd. 7 the two examinations as well as any examination under the civil commitment statutes in Minn. Stat. Ch. 253B may by court order be conducted simultaneously. In the order for the examination under Rule 20.02, subd. 2, the court shall direct what the examination and report shall cover. (See Rule 20.02, subd. 4(1), (2), (3).)

Rule 20.02, subd. 3 leaves the imposition of sanctions for failure of the defendant to participate in the examination to the discretion of the trial court to be determined under all of the circumstances. See Rule 20.02, subd. 4 providing that the examiner's report shall if possible contain an opinion as to whether the defendant's failure to participate was the result of the defendant's mental condition.

Rule 20.02, subd. 4 provides what the report of the examination shall contain. Rule 20.02, subd. 4(2) is worded in the language of Minn. Stat.§ 611.026, but is intended to include the judicial interpretations given to that statute. (See State v. Rawland, 294 Minn. 17, 199 N.W.2d 774 (1972).)

Rule 20.02, subd. 5 provides that evidence derived from the examination is inadmissible except when the defendant has raised the issue of his or her mental condition.

Rule 20.02, subd. 6 is intended to provide a procedure for obviating objections on the grounds of self-incrimination to the admissibility at trial of statements made by the defendant for the purpose of the compulsory mental examination under Rules 20.02, subd. 2 and 20.01, subd. 2(3).

If the defendant intends to rely solely on the defense of mental irresponsibility (Rules 9.02, subd. 1(3)(a); 14.01), statements made by the defendant for the purpose of the mental examination and evidence derived from the statements shall be admissible on the trial of that issue, if otherwise admissible under the rules of evidence. (Compare Wis.Stat.§ 971.18).

If, however, the defendant intends to rely on the defense of mental illness or mental deficiency and the defense of not guilty of the elements of the offense charged (Rules 9.02, subd. 1(3)(a); 14.01), there must be a separation of the two defenses for trial (Rules 20.02, subd. 6(2); 20.02, subd. 6(4)). (See also Wis.Stat. § 971.175; State ex rel. LaFollette v. Raskin, 34 Wis.2d 607, 150 N.W.2d 318 (1967).) The mandatory separation of the two defenses for trial under this rule makes it unnecessary to use the procedures outlined in State v. Hoffman, 328 N.W.2d 709 (Minn.1982).

If the two defenses are separated for trial, the statements and evidence derived therefrom will be admissible only upon the trial of the defense of mental illness or mental deficiency, if otherwise admissible under the rules of evidence. (Rule 20.02, subd. 6(3).)

The trial procedure when there is a separation of the two defenses under Rule 20.02, subd. 6(2) is set forth in Rule 20.02, subd. 6(4). (See also Wis.Stat. § 971.175.) The trial shall be continuous before the same jury or judge, with the defense of not guilty of the elements of the offense tried first, and then if necessary, the defense of not guilty by reason of mental illness or mental deficiency.

The jury shall be informed before commencement of the trial that the two defenses have been interposed and of the trial procedures that will be followed in trying them. (Rule 20.02, subd. 6(4)(a).)

Upon the trial of the defense of not guilty, the jury or court shall determine whether the elements of the offense have been proved beyond a reasonable doubt (Rule 20.02, subd. 6(4)(b).)

The form of the determination shall be as follows: (1) "We, the jury, find that the elements of the offense of (name of offense) have been proved beyond a reasonable doubt.", or (2) "We, the jury, find that the elements of the offense of (name of offense) have not been proved beyond a reasonable doubt."

If it is determined that the elements of the offense have been proved, the trial of the defense of mental illness or mental deficiency shall follow immediately before the same jury or court.

Upon the trial of the defense of mental irresponsibility, the jury or court shall render a verdict or make a finding of (1) not guilty by reason of mental illness (See Rule 20.02, subd. 8(1) and (4) for the effect and consequences.); or (2) not guilty by reason of mental deficiency (See Rule 20.02, subd. 8(2) and (4) for the effect and consequences.); or (3) a verdict or finding of guilty (resulting in a judgment of conviction and sentence).

The provisions of Minn. Stat. § 611.026 (1971) placing the burden on the defendant of proving lack of mental responsibility by a preponderance of the evidence are continued by Rule 20.02, subd. 6(4)(b).

The provisions of Rule 20.02, subd. 8 for civil commitment (Rule 20.02, subd. 8(1) and (2)) following an acquittal by reason of mental illness or mental deficiency, for appeal from the determination in the civil commitment proceedings (Rule 20.02, subd. 8(3)), and for continuing supervision by the trial court while the defendant is under commitment (Rule 20.02, subd. 8(4)) are similar to those contained in Rules 20.01, subd. 4 and subd. 5 governing civil commitment of a defendant found incompetent to stand trial. Like those rules, Rule 20.02, subd. 8 is intended to meet constitutional requirements of equal protection and due process. There is no continuing supervision by the criminal trial court in misdemeanor cases.

Rules 20.02, subd. 8(4) and 20.01, subd. 5 both require that the trial court and the prosecuting attorney be notified of any proposed institutional transfer or partial hospitalization status (see Minn. Stat.§ 253B.15, subd. 11) or any proposed discharge, provisional discharge, or other termination of a defendant's civil commitment when that defendant has been found not guilty by reason of mental illness or deficiency or incompetent to proceed. The prosecuting attorney then has the right to participate as a party in any civil proceedings being conducted under the Minnesota Commitment Act of 1982, Minn. Stat. Ch. 253B, concerning those matters. As such, the prosecuting attorney could question and present witnesses and argue for the continued commitment of the defendant in the civil proceedings. A person committed as mentally ill and dangerous can be discharged from that commitment only under the provisions of Minn. Stat.§ 253B.18. Unlike patients committed as mentally ill only, patients committed as mentally ill and dangerous may not seek a discharge or provisional discharge of their commitment under Minn. Stat. § 253B.17 in the probate court which committed them or from the head of the institution under Minn. Stat. § 253B.16. Rather, Minn. Stat. § 253B.18 permits their discharge or provisional discharge only if ordered by the commissioner of public welfare after receiving a recommendation to that effect from an administrative special review board following a hearing. The commissioner's decision may be appealed to a three judge probate appeal panel appointed by the Supreme Court. The probate appeal panel then conducts a de novo hearing before deciding on the discharge or provisional discharge of the defendant. Minn. Stat. § 253B.19. Beyond that, any party may appeal an adverse decision to the Court of Appeals and an appeal of a release order stays the effect of that order until the appeal is decided by the Court of Appeals. Minn. Stat. § 253B.19, subd. 5. This is basically the same procedure as provided by the previous law under Minn. Stat. § 253A.15 as interpreted by the court in In the Matter of the Mental Illness of K.B.C., 308 N.W.2d 495 (Minn.1981).

Rule 20.03 (which is comparable to Minn.R.Civ.P. 35.03 and 35.04) permits the disclosure to and use by the prosecution of medical reports and hospital and medical records that are relevant to the defense of mental illness or mental deficiency. It includes reports and records that are made both before and after the defense of mental illness or mental deficiency is asserted. These rules allow the prosecution to call a defense-retained psychiatrist to testify at the mental illness portion of a bifurcated trial and such a practice does not violate the defendant's attorney-client privilege or the constitutional right to the effective assistance of counsel. State v. Dodis, 314 N.W.2d 233 (Minn.1982).

The defendant may turn over the copies of the reports and records to the court instead of to the prosecuting attorney. If the defendant does so, the court shall examine them to determine their relevancy. If the court determines they are relevant, they shall be given to the prosecuting attorney. Otherwise they shall be returned to the defendant.

If the defendant is unable to comply with the order of the court for disclosure, either because the defendant does not have access to the reports or records, or for any other reason, a subpoena duces tecum may be issued under Rule 22 for their production. (See Rule 22.02).

By Rule 20.03, subd. 2 the reports and records disclosed to the prosecution under Rule 20.03, subd. 1 and evidence obtained therefrom are admissible only when the defense of mental illness or mental deficiency is the sole defense or when that defense is separated for trial under Rule 20.02, subd. 6(4).

Rule 21. Depositions

Rule 21.01 When Taken

Whenever there is a reasonable probability that the testimony of a prospective witness will be used at hearing or at trial under any of the conditions specified in Rule 21.06, subd. 1, the court before whom the proceedings are pending may, at any time after the filing of a complaint or indictment or entry of a tab charge upon the records, upon motion and notice to the parties, order that the testimony of such witness be taken by oral deposition before any designated person authorized to administer oaths and that any designated book, paper, document, record, recording or other material, not privileged, be produced at the same time and place. The order shall also direct the defendant to be present at the taking of the deposition and, if the defendant is handicapped in communication, that a qualified interpreter be present for the defendant.

Comment—Rule 21

See comment following Rule 21.08

Rule 21.02 Notice of Taking

The party or person at whose instance a deposition is to be taken shall give to every other party reasonable notice of the time and place for taking the deposition. The notice shall state the name and address of each person to be examined. Unless otherwise ordered by the court the notice to the defendant shall be served personally on all the defendants. The notice shall inform them that they are required by order of court to personally attend the taking of the deposition, and a copy of the court order shall be attached to the notice. An officer having custody of any of the defendants shall be notified of the time and place set for the deposition and shall produce them at the examination and keep them in the presence of the witness during the examination.

On motion of a party upon whom notice is served, the court for cause shown may extend or shorten the time or change the place for taking the deposition.

Comment—Rule 21

Rule 21.03 Expenses of Defendant and Counsel; Failure to Appear

Subd. 1. Expenses, Defendant and Counsel. If a defendant is unable to bear the expenses of travel and subsistence of himself or herself and defense counsel for attendance at the examination, the court shall direct that such expenses be paid at public expense.

Subd. 2. Failure to Appear. If a defendant who is not confined fails to appear at the examination without reasonable excuse after having received notice thereof, the deposition may be taken and used to the same extent as though the defendant had been present.

Comment—Rule 21

Rule 21.04 How Taken

Subd. 1. Oral Deposition. Depositions shall be taken upon oral examination.

Subd. 2. Oath and Record of Examination. The witness shall be put on oath and a verbatim record of the testimony of the witness shall be made.

The testimony shall be taken stenographically and transcribed unless the court orders otherwise.

In the event the court orders that the testimony at a deposition be recorded by other than stenographic means, the order shall designate the manner of recording, preserving, and filing the deposition, and may include other provisions to assure that the recorded testimony will be accurate and trustworthy. If the order is made, a party may nevertheless arrange to have a stenographic transcription made at that party's own expense.

Subd. 3. Scope and Manner of Examination--Objections--Motion to Terminate.

(a) In no event shall the deposition of a party defendant be taken without the defendant's consent.

(b) The scope and manner of examination and cross-examination shall be the same as that allowed at trial. Each party having possession of a statement of the witness being deposed shall make the statement available to the other party for examination and use at the taking of a deposition if such other party would be entitled to the statement at the trial.

(c) All objections made at the time of the examination to the qualifications of the person taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings shall be recorded by the person before whom the deposition is taken. Evidence objected to shall be taken subject to the objections.

(d) At any time during the taking of the deposition, on motion of a party or of the deponent, and upon a showing that the examination is being conducted in bad faith, or in such manner as to annoy, embarrass, or oppress the deponent or party or to elicit privileged testimony, the court which ordered the deposition taken may order the person conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of taking the deposition by ordering as follows: (1) that certain matters not be inquired into, or that the scope of the examination be limited to certain matters; (2) that the examination be conducted with no one present except persons designated by the court.

Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to move for the order.

Comment—Rule 21

Rule 21.05 Transcription, Certification and Filing

When the testimony is fully transcribed, the person before whom the deposition was taken shall certify on the deposition that the witness was duly sworn and that the deposition is a verbatim record of the testimony given by the witness. Such person shall then securely seal the deposition in an envelope endorsed with the title of the case and marked "Deposition of (here insert name of witness)" and shall promptly file it with the court in which the case is pending or send it by registered or certified mail to the clerk thereof for filing.

Upon the request of a party, documents and other things produced during the examination of a witness, or copies thereof, shall be marked for identification and annexed as exhibits to the deposition, and may be inspected and copied by any party. If the person producing the exhibits requests their return, the person taking the deposition shall mark them, and, after giving each party an opportunity to inspect and copy them, return the exhibits to the parties producing them. The exhibits may then be used in the same manner as if annexed to the deposition.

Comment—Rule 21

Rule 21.06 Use of Deposition

Subd. 1. Unavailability of Witness. 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 as substantive evidence if it appears: (a) that the witness is dead or unable to be present or to testify at the trial or hearing because of then existing physical or mental illness or infirmity; or (b) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena, order of court, or other reasonable means.

Subd. 2. Inconsistent Testimony. A deposition may be used as substantive evidence, so far as otherwise admissible under the rules of evidence, if the witness gives testimony at the trial or hearing inconsistent with the deposition or if the witness persists at the hearing or trial in refusing to testify despite an order of the court to do so.

Subd. 3. Impeachment. Any deposition may also be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness.

A deposition may not be used if it appears that the absence of the witness was procured or caused by the party offering the deposition, unless part of the deposition has previously been offered by another party.

Comment—Rule 21

Rule 21.07 Effect of Errors and Irregularities in Depositions

Subd. 1. As to Notice. All errors and irregularities in the order or notice for taking a deposition are waived unless written objection is served promptly upon the party giving the notice.

Subd. 2. As to Disqualification of Officer. Objection to taking a deposition because of disqualification of the person before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the grounds for disqualification become known or could be discovered with reasonable diligence.

Subd. 3. As to Taking of Deposition. Objections to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition unless the ground of the objection is one which might have been obviated or removed if presented at that time.

Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of the parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.

Subd. 4. As to Completion and Return of Deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, recorded, certified, sealed, endorsed, transmitted, filed or otherwise dealt with by the person taking the deposition under these rules are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.

Comment—Rule 21

Rule 21.08 Deposition by Stipulation

The parties may by written stipulation provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner, and when so taken may be used like other depositions. These rules to the extent not inconsistent with the stipulation shall otherwise govern the taking of the deposition.

Comment—Rule 21

Rule 21 is adapted from F.R.Crim.P. 15; Preliminary Draft of Proposed Amendments to F.R.Crim.P. 15 (1971), 52 F.R.D. 409, 438; Minn.R.Civ.P. 28-30; and F.R.Civ.P. 30. Existing Minnesota law contains no provision for depositions to be taken on behalf of the prosecution in criminal cases. Minn. Stat. § 611.08 (1971) for taking depositions on behalf of the defendant is superseded by Rule 21. Minn. Stat. Ch. 597 (1971) where applicable to criminal cases is superseded to the extent it is inconsistent with Rule 21.

Under Rule 21.01, an order may be made for taking the oral deposition of a prospective hearing or trial witness of either party only upon a showing of reasonable probability that the witness will be unavailable at the hearing or trial because of the conditions specified in Rule 21.06, subd. 1. (Rule 21.01 is adapted from F.R.Crim.P. 15(a) and Preliminary Draft of Proposed Amendments to F.R.Crim.P. 15(a) (1971), 52 F.R.D. 409, 438-439.) The requirement that a qualified interpreter be present for defendants handicapped in communication is based upon Rule 5 and Minn. Stat. §§ 611.31- 611.34 (1992).

The deposition may be taken before any person authorized to administer oaths designated by the order. If the deposition is taken outside the State of Minnesota, this would include any person authorized to administer oaths by the laws of Minnesota or of the state where the deposition is taken. (See Moore v. Kelsey, 26 Wash.2d 31, 173 P.2d 130 (1946).)

Rule 21.02 providing for notice to the defendants and for the production of those in custody at the taking of the deposition is adapted from Preliminary Draft of Proposed Amendments to F.R.Crim.P. 15(b) (1971), 52 F.R.D. 409, 439. Notice shall normally be personally served on the defendant. However, in cases where the defendant is unavailable and time is of the essence, the court may order that notice be served on the defendant's attorney instead of the defendant. These rules do not deal with the constitutionality of the use of a deposition at trial when the defendant has not been personally notified.

The provisions of Rule 21.03, subd. 1 for the payment of the expenses of an indigent defendant comes from F.R.Crim.P. 15(c) and Preliminary Draft of Proposed Amendments to F.R.Crim.P. 15(c) (1971), 52 F.R.D. 409, 440.

Rule 21.03, subd. 2 providing for the consequences of a defendant's failure to appear at the deposition is adapted from Preliminary Draft of Proposed Amendments to F.R.Crim.P. 15(b) (1971), 52 F.R.D. 409, 440.

Rule 21.04, subd. 2 providing for recording a deposition by other than stenographic means if the court so orders follows F.R.Civ.P. 30(b)(4).

Rule 21.04, subd. 3 relating to the deposition of a party defendant and the scope of examination and cross-examination is adapted from Preliminary Draft of Proposed Amendments to F.R.Crim.P. 15(d) (1971), 52 F.R.D. 409, 440-441.

Rule 21.04, subd. 3(c) providing for objections follows substantially the language of Minn.R.Civ.P. 30.03. The time and manner of making objections and the conditions under which objections are waived are treated in Rule 21.07.

Rule 21.04, subd. 3(d) for termination or limitation of the deposition is adapted from the language of Minn.R.Civ.P. 30.04 and F.R.Civ.P. 30(d).

Rule 21.05 governing the certification and filing of the deposition comes from Minn.R.Civ.P. 30.06 and F.R.Civ.P. 30(f). Rule 21.05 does not, however, require that the deposition be submitted to and signed by the witness. It requires only that the person before whom the deposition is taken certify that the deposition is a true record of the testimony given by the witness. Any dispute over the accuracy of the record shall be dealt with under Rule 21.07, subd. 4 (completion and return of deposition).

The last paragraph of Rule 21.05 governing exhibits is adapted from F.R.Civ.P. 30(f).

Rule 21.06 establishes the circumstances under which a deposition can be used during a trial or hearing if a deposition exists. The right to obtain a deposition from a prospective witness, however, is governed by Rule 21.01 and under that rule a deposition can be ordered by the court only if there is a reasonable probability that the prospective witness will be unavailable for the trial or hearing for any of the reasons specified in subdivision 1 of Rule 21.06.

Under Rule 21.06 a deposition may be used as substantive evidence when the witness is unavailable within the meaning of Rule 21.06, subd. 1. (Compare Preliminary Draft of Proposed Amendments to F.R.Crim.P. 15(e) (1971), 52 F.R.D. 409, 441.)

The deposition may also be used (1) as substantive evidence if the witness gives inconsistent testimony at the trial (Rule 21.06, subd. 2) (See Preliminary Draft of Proposed Amendments to F.R.Crim.P. 15(e) (1971), 52 F.R.D. 409, 441; California v. Green, 399 U.S. 149 (1970); Rules of Evidence For United States District Courts 801(c)(2) (Effective Date, July 1, 1973).); (2) as substantive evidence if the witness refuses to testify at trial (Rule 21.06, subd. 2) See Preliminary Draft of Proposed Amendments to F.R.Crim.P. 15(g)(2) (1971), 52 F.R.D. 409, 442 or (3) for impeachment. (See F.R.Crim.P. 15(e).)

The last sentence of Rule 21.06, subd. 3, relating to the use of a deposition when the absence of the witness was caused by the party offering the deposition, is adapted from F.R.Crim.P. 15(e).

Rule 21.07, subd. 1 for objections to the order of notice is taken from Minn.R.Civ.P. 32.01.

Rule 21.07, subd. 2 for objections to the qualifications of the person taking the deposition follows the language of Minn.R.Civ.P. 32.02.

Rule 21.07, subd. 3 covering objections to evidence is the same as Minn.R.Civ.P. 32.03(1), (2).

Rule 21.07, subd. 4 for objections to errors in the completion and return of the deposition adopts the language of Minn.R.Civ.P. 32.04.

Rule 21.08 providing for depositions by stipulation is adapted from Minn.R.Civ.P. 29.

Rule 22. Subpoena

Rule 22.01 For Attendance of Witnesses; Form; Issuance

Subd. 1. When Issued. A subpoena may be issued in a criminal proceeding only for the attendance of a witness before a grand jury, or at a hearing or trial before the court in which the proceeding is pending, or for attendance at the taking of a deposition.

Subd. 2. By Whom Issued. A subpoena shall be issued by the clerk under the seal of the court. It shall state the name of the court and the title of the proceeding if the subpoena be for a hearing or trial before the court; but if the subpoena be for a grand jury, it shall be headed "In the matter of the investigation of the grand jury of the (particular) county conducting the proceeding." The subpoena shall command each person to whom it is directed to attend and give testimony at the time and place specified therein. The clerk shall issue a subpoena, or a subpoena for the production of documentary evidence or tangible things, signed and sealed but otherwise in blank to the party requesting it, who shall fill in the blanks before it is served.

Subd. 3. Unrepresented Defendant. A subpoena shall not be issued at the request of a defendant not represented by counsel without an order of court authorizing its issuance. The defendant's request to the court may be oral and the court's order may be either oral, if noted in the court's record, or written.

Comment—Rule 22

Rule 22.02 For Production of Documentary Evidence and of Objects

A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or objects designated in the subpoena, including medical reports and medical and hospital records ordered to be disclosed under Rule 20.03, subd. 1, be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit them to be inspected by the parties or their attorneys.

Comment—Rule 22

Rule 22.03 Service

A subpoena may be served by the sheriff, by a deputy sheriff, or any other person at least 18 years of age who is not a party. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person or by leaving a copy at the person's usual place of abode with some person of suitable age and discretion then residing therein. Additionally, a subpoena may be served by U.S. mail, but such service is effective only if the person named therein returns a signed admission acknowledging personal receipt of the subpoena. Fees and mileage need not be tendered in advance.

Comment—Rule 22

Rule 22.04 Place of Service

A subpoena requiring the attendance of a witness may be served at any place within the state.

Comment—Rule 22

Rule 22.05 Contempt

Failure to obey a subpoena without adequate excuse is a contempt of court.

Comment—Rule 22