Motion for Discovery (Criminal)

MOTION FOR DISCOVERY (CRIMINAL) — NORTH DAKOTA

Table of Contents

1. Caption
2. Introduction
3. Statement of Facts
4. Legal Authority
5. Brady/Giglio Obligations
6. Categories of Discovery Requested
7. Good Faith Certification
8. Proposed Order
9. Certificate of Service
10. North Dakota Practice Notes

1. Caption

STATE OF NORTH DAKOTA
IN DISTRICT COURT
[________________________________] JUDICIAL DISTRICT
COUNTY OF [________________________________]

2. Introduction

NOW COMES the Defendant, [DEFENDANT FULL NAME], by and through undersigned counsel, [ATTORNEY NAME], Esq., and respectfully moves this Honorable Court for an Order compelling the State of North Dakota to provide discovery in accordance with Rule 16 of the North Dakota Rules of Criminal Procedure, the Due Process Clauses of the United States and North Dakota Constitutions, and the holdings in Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).

3. Statement of Facts

1. On or about [__/__/____], the Defendant was charged by [☐ information / ☐ indictment] with [________________________________].

2. On [__/__/____], undersigned counsel served a written request for discovery upon the [________________________________] State's Attorney's Office pursuant to N.D.R.Crim.P. Rule 16(a)(1).

3. As of the date of this Motion, the State has [failed to respond to the discovery request / provided incomplete discovery, specifically: [________________________________]].

4. Defense counsel has made additional attempts to resolve this matter, including [________________________________].

4. Legal Authority

A. N.D.R.Crim.P. Rule 16(a) — Disclosure by Prosecuting Attorney

Upon written request by the defendant, the prosecuting attorney shall disclose and make available for inspection:

• Statements of the Defendant (Rule 16(a)(1)(A)): Written or recorded statements, substance of oral statements, and grand jury testimony.
• Defendant's Prior Record (Rule 16(a)(1)(B)): The defendant's prior criminal record.
• Documents and Objects (Rule 16(a)(1)(C)): Books, papers, documents, photographs, tangible objects, buildings, or places within the State's possession that are material to the defense, intended for use at trial, or obtained from the defendant.
• Reports of Examinations and Tests (Rule 16(a)(1)(D)): Results or reports of physical or mental examinations and scientific tests or experiments.
• Expert Witnesses (Rule 16(a)(1)(E)): Written summary of expert testimony the government intends to use at trial.

B. N.D.R.Crim.P. Rule 16(d) — Regulation of Discovery

The court may regulate discovery, grant protective orders, and impose sanctions for non-compliance, including ordering disclosure, granting continuances, prohibiting evidence, or entering other appropriate orders.

C. Constitutional Due Process

The Fourteenth Amendment and Article I, Section 12 of the North Dakota Constitution guarantee due process of law.

D. North Dakota Case Law

See State v. Ohnstad, 2006 ND 191; State v. Steen, 2004 ND 228 (discussing scope of criminal discovery in North Dakota).

5. Brady/Giglio Obligations

The Defendant specifically requests all material subject to Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972):

☐ Any and all exculpatory evidence tending to negate guilt or reduce punishment

☐ Any and all impeachment material relating to prosecution witnesses, including:

• Prior inconsistent statements
• Benefits, promises, or inducements offered to witnesses
• Prior criminal convictions or pending charges of witnesses
• Evidence of bias, motive, or interest
• Disciplinary records or internal affairs files of law enforcement witnesses

☐ Evidence suggesting alternative suspects

☐ Evidence of witness misidentification or recantation

☐ Evidence contradicting the prosecution's theory

6. Categories of Discovery Requested

Pursuant to N.D.R.Crim.P. Rule 16, the Defendant requests:

A. Defendant's Statements (Rule 16(a)(1)(A))

☐ All relevant written or recorded statements of the Defendant
☐ Substance of any oral statements made by the Defendant to any government agent
☐ Recorded testimony of the Defendant before a grand jury
☐ All statements of any co-defendant

B. Defendant's Prior Record (Rule 16(a)(1)(B))

☐ The Defendant's prior criminal record, if any

C. Documents and Tangible Objects (Rule 16(a)(1)(C))

☐ All books, papers, documents, photographs, and tangible objects material to the defense
☐ All items the State intends to use at trial
☐ All items obtained from or belonging to the Defendant
☐ Search warrants, affidavits, and returns
☐ All police reports, incident reports, and supplemental reports
☐ Surveillance photographs and videos

D. Reports of Examinations and Tests (Rule 16(a)(1)(D))

☐ All reports of physical or mental examinations
☐ All reports of scientific tests or experiments
☐ Underlying data, bench notes, and testing protocols
☐ Chain of custody documentation

E. Expert Witnesses (Rule 16(a)(1)(E))

☐ Written summary of each expert witness's anticipated testimony
☐ Expert qualifications and curriculum vitae
☐ Bases and reasons for the expert's opinions

F. Witness Information

☐ Names, addresses, and contact information of all witnesses the State intends to call
☐ Written or recorded statements of all witnesses
☐ Criminal history records of all prosecution witnesses
☐ Cooperation agreements, plea arrangements, or inducements

G. Law Enforcement Materials

☐ All police reports and investigation files
☐ Body-worn camera and dashboard camera footage
☐ 911 call recordings and dispatch records
☐ Radio communications and logs
☐ Officer notes and memoranda

H. Electronic and Digital Evidence

☐ Cell phone records and cell site location information
☐ Social media records
☐ Computer forensic analysis reports
☐ Electronic surveillance recordings, applications, and orders

I. Exculpatory and Impeachment Evidence

☐ All Brady material (exculpatory evidence)
☐ All Giglio material (impeachment evidence)
☐ Any evidence favorable to the Defendant on the issue of guilt or punishment
☐ Disciplinary records of law enforcement witnesses

7. Good Faith Certification

I, [ATTORNEY NAME], Esq., attorney for the Defendant, hereby certify:

1. On [__/__/____], I served a written request for discovery upon the [________________________________] State's Attorney's Office.

2. I have made good-faith efforts to obtain discovery and resolve this dispute before filing this Motion, including [________________________________].

3. The State has not fully complied with the discovery request.

4. This Motion is made in good faith and not for purposes of delay.

[ATTORNEY NAME], Esq.
Attorney for Defendant
ND ID No. [________________________________]
Date: [__/__/____]

8. Proposed Order

STATE OF NORTH DAKOTA
IN DISTRICT COURT
[________________________________] JUDICIAL DISTRICT
COUNTY OF [________________________________]

STATE OF NORTH DAKOTA v. [DEFENDANT FULL NAME]
Case No.: [________________________________]

ORDER GRANTING MOTION FOR DISCOVERY

THIS MATTER having come before the Court on the Defendant's Motion for Discovery;

THE COURT, having reviewed the Motion and any opposition, and being otherwise fully advised:

IT IS HEREBY ORDERED:

1. The State shall, within [____] days of this Order, produce and make available to the Defendant all materials and information as set forth in the Motion for Discovery and as required by N.D.R.Crim.P. Rule 16.

2. The State's disclosure obligations are continuing, and any additional material shall be promptly disclosed.

3. Failure to comply with this Order may result in sanctions under N.D.R.Crim.P. Rule 16(d)(2), including preclusion of evidence, adverse inference instructions, continuance, or dismissal.

______________________________________
DISTRICT JUDGE

Date: [__/__/____]

9. Certificate of Service

I, [ATTORNEY NAME], Esq., hereby certify that on [__/__/____], a true and correct copy of the foregoing Motion for Discovery and Proposed Order was served upon:

[PROSECUTOR NAME]
[________________________________] State's Attorney's Office
[________________________________]
[________________________________]

☐ By hand delivery
☐ By regular mail
☐ By electronic filing (Odyssey File & Serve)
☐ By email to: [________________________________]

______________________________________
[ATTORNEY NAME], Esq.

10. North Dakota Practice Notes

1. Request-Based Discovery: Unlike some states with automatic disclosure, North Dakota requires the defendant to make a written request to trigger the State's discovery obligations under Rule 16(a)(1).

2. Materiality Standard: For documents and tangible objects under Rule 16(a)(1)(C), the defendant must show that items are "material to the preparation of the defendant's defense" or that the government intends to use them at trial.

3. Reciprocal Discovery: Under Rule 16(b), once the defendant has obtained discovery from the State, the State may request reciprocal discovery from the defendant, including documents, expert reports, and tangible objects.

4. Protective Orders: Rule 16(d)(1) authorizes the court to issue protective orders restricting or deferring discovery upon a sufficient showing, such as witness safety concerns.

5. Sanctions: Rule 16(d)(2) provides sanctions for non-compliance, including ordering disclosure, granting a continuance, prohibiting the introduction of evidence, or "such other order as it deems just under the circumstances."

6. No Witness List Requirement: Unlike some states, North Dakota's Rule 16 does not explicitly require the State to provide a witness list. However, witness statements and reports typically reveal the State's anticipated witnesses.

7. Grand Jury Materials: The defendant is entitled to their own grand jury testimony under Rule 16(a)(1)(A)(iii). Additional grand jury materials may be obtained by motion to the court.

8. Electronic Filing: North Dakota uses the Odyssey File & Serve system for electronic filing. Verify local court requirements for filing motions.

This template is provided for informational purposes only and does not constitute legal advice. It should be reviewed and customized by a licensed North Dakota attorney before use.

Last updated: 2026-04-03