Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Revisions to the Criminal Rules: A Plainspoken Legacy

Perceiving that Minnesota’s Criminal Rules were in some cases virtually incomprehensible, the advisory committee has proposed the first comprehensive revision in many years. Stylistic revisions and streamlining seek to make the Rules more user-friendly, while every effort has been made to ensure that no substantive changes are made without due deliberation.

On April 22, 2009, the Committee on the Rules of Criminal Procedure filed a report with the Minnesota Supreme Court recommending a complete stylistic revision of the Criminal Rules.  This report marked the completion of a two-year project.  The project involved a comprehensive review of all the rules and comments with the goal of making them more understandable.

The proposed rules are now published, and the supreme court has requested public comment by June 24, 2009.  The purpose of this article is to explain what prompted this project, the objectives for the stylistic revisions, and the procedures and methodology used when making the revisions.  I also hope that this article will generate comments on the proposed changes.

The Criminal Rules are dynamic and frequently require amendment due to case law and statutory changes.  For this reason the committee, which comprises prosecutors, defense attorneys, and law school professors as well as myself, meets about 10–12 times a year. But the rules have not been comprehensively reviewed for nearly two decades and many are outdated and unwieldy.

Impetus for Revision
The impetus to revise the rules came at a committee meeting in early 2007.  As he left the meeting, then Hennepin County prosecutor Paul Scoggin told me that when young attorneys asked him questions about Rule 26, he would advise them not to read it.  He basically told them, “You will never get through it, and moreover, you will never understand it.”  Paul told me the rule was incomprehensible.  Paul’s frustration had an impact because he is one of our most experienced prosecutors.

Later that spring I asked the Rules Committee to consider launching a comprehensive revision project.  There were some looks of disbelief and astonishment at the suggestion, but further discussion led to a consensus that the revision was needed and feasible.  Thus, in June 2007, the committee decided to review the rules with the goal of stylistic revision and streamlining.

A subcommittee including me, Leonardo Castro, Michael Jung, Kelly Mitchell, Mark Nyvold, and Paul Scoggin was charged to develop a methodology and quickly identified the following objectives:

1. Eliminate wordiness and archaic language.
2. Achieve consistency in phraseology among rules that address the same subject.
3. Reorganize individual rules structurally to make them easier to read.
4. Eliminate illogical organization and clarify intended meaning.
5. To the extent feasible, change the passive voice to active voice.
6. Achieve a level of clarity that will enable those who have not used the rules previously to feel confident that they understand them.

The subcommittee decided to follow Bryan Garner’s Guidelines for Editing and Drafting Court Rules.  We believed that Garner’s guidelines would help us achieve the stated objectives.  The subcommittee tested the approach by attempting to revise Rules 28 and 29 following Garner’s guidelines.  We found that while Garner’s guidelines were short and easy to read, internalizing and implementing his stylistic conventions and principles took a significant amount of time.  For efficiency’s sake, therefore, we formed a revision committee, including the original subcommittee members except me, to propose changes.

Guidelines for Revision
Given the scope of this undertaking, the subcommittee realized that it needed to clearly define the project and to have the support of the full committee.  The full committee had to buy into the project’s methodology.  Accordingly, the subcommittee agreed that the revisions would be limited to matters of grammar and style, according to Garner’s guidelines; some reorganization; and some de minimis changes.  We concluded that tackling substantive revisions would be too complicated, would involve too many disagreements, and could cause the project to bog down or fail.  Certain guidelines were then established:

1. The subcommittee with limited exceptions would follow Garner.
2. Some reorganization of the rules would be permitted.
3. If a member found terms or concepts repeated throughout the rule that were more broadly applicable, an alternative placement that would reduce or eliminate the repetition was proper.
4. The subcommittee could recommend some minor substantive changes if the full committee agreed the changes would be relatively noncontroversial or de minimis and the change warranted immediate attention.
5. The subcommittee could identify and document all other substantive issues for the full committee’s future consideration.

The next step was to adopt a protocol for certain stylistic conventions to supplement those used by Garner.  The supplemental conventions adopted by the subcommittee included:

1. Numerals would be used instead of words to represent numbers.
2. With limited exception, time periods and days would be stated in terms of days rather than months.
3. “Court” would be used rather than “judge,” except when “judge” would be more appropriate.
4. “District court” would be used rather than “trial court.”
5. “Prosecutor” would be used rather than “prosecuting attorney.”
6. Where possible, bullet points would be used when setting out a list of items, and the next outline level letter or number would be employed for listing alternatives or successive requirements.

The comments to the rules presented a special challenge.  They were lengthy and out-of-date.  The subcommittee agreed to remove any language that merely repeated the rule.  It also agreed to the following:

1. Retain important source derivation information.
2. Retain case law necessary to understand the rule, particularly for a new rule.
3. Retain other information important for practitioners and judges to know in order to apply the rule.

At its September 15, 2007 meeting, the full committee approved the project’s methodology and agreed to review all proposed changes.  This was important because committee members’ insights proved to be invaluable.

Drafting & “Punch List”
Over the next 19 months, the revision subcommittee met over 45 times, frequently starting at 3:00 or 3:30 p.m. on Fridays and working until 8:30 or 9:00 p.m.  The subcommittee assigned the revision of particular rules to individual members.  Subcommittee members drew numbers from a hat to determine the rules they would revise.  At each of the subcommittee meetings, one or two rules would be addressed, discussed, and changes adopted.  The subcommittee knew that the stylistic revisions would result in an extensive set of proposed amendments, so it adopted a format that was easy to read and would allow a reader to comprehend how the original rule read, what the proposed amendments were, and how the rule would read if the proposed amendments were adopted.

Once a rule was completed, it was then considered by the full committee.  Committee members scrutinized every change and often suggested the addition or deletion of a word, punctuation changes, and stylistic changes.  The committee discussed whether a change was substantive or merely stylistic, and if substantive, whether it was de minimis.  On several occasions, a proposed revision would be put on a “punch list” for consideration at a later date.  The committee agreed there should be a formal cite-checking process, so the committee enlisted the help of the supreme court law clerks.  Deputy Commissioner Scott Christenson developed a procedure to cite-check all of the rules.

The final step was to have Kelly Mitchell draft the report.  Because the report was over 500 pages, the committee assigned specific rules to individual committee members for review.  During this review, the committee discovered both minor and major changes that needed further discussion.  A few changes were deemed to be substantive and were moved over to the “punch list.”

The punch list is an important part of the report.  As indicated earlier, the committee agreed that a substantive revision would cause the project to bog down.  Nevertheless, several substantive changes were identified and debated.  Our solution was to put the substantive issues on the punch list.  The committee would use this list to address changes in the future.  In fact, the committee has already addressed some of the items on the list and has identified what it considers to be “low-hanging fruit”or noncontroversial changes that will be addressed in the fall.

The final report has been published on the court’s website at  Follow the link under “Latest News and Announcements” to access the full report.  The committee knows that some of the proposed changes may prompt concerns and questions and welcomes comments from members of the bar.  The committee is committed to getting it right and wants as much input as possible before the rules are adopted by the supreme court.  The goal is to have the rules in a format that users can read and easily understand.  We also hope that the revision will be viewed as a legacy project—one that has advanced the quality of the practice of law in Minnesota.

Minnesota Legacy
The committee’s work has reinforced my appreciation for the quality of the lawyers that we have in Minnesota and the dedication that they show to making improvements to the practice of law here.  The willingness to commit time, to give up many Saturday mornings and Friday afternoons and evenings, highlights the committee members’ dedication.

Paul Scoggin, who is now serving as a prosecutor in Kosovo, summarized our goal in a recent email.  Paul invited the Criminal Rules Committee to reconvene in Kosovo to rewrite the Provisional Procedural Code for the Republic of Kosovo.  He said that their rules appear to have been written by Italian judges working in English without the benefit of fluent English speakers.  The rules when translated into English contain complicated phrasing, such as the following:  “in regard to the matter that pertains to the appearance in the first instance of the accused.”  Paul suggested that our committee would revise this provision as follows:  “at the suspect’s first appearance.”  Paul ended his email with the comment, “This nation, Kosovo, needs you.”  That may be so, but I end by noting my gratitude that the members of the Criminal Rules Committee saw the need for our state and filled that need.  Now that the project is completed, we ask that members of the Minnesota bar review the result and comment, so that the end result will be a true legacy.

JUSTICE PAUL ANDERSON is the Minnesota Supreme Court liaison to the Advisory Committee on Rules of Criminal Procedure.  Kelly Mitchell, who serves as staff attorney for the committee, assisted in preparation of this article.

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