North Dakota

Overview

North Dakota, like many rural states, maintains a decentralized and underdeveloped framework for enforcing Brady and Giglio disclosure obligations. Despite constitutional mandates and ethical rules requiring prosecutors to turn over exculpatory and impeachment evidence, the state lacks a centralized tracking system for officer misconduct, a statutory duty for law enforcement to report disciplinary findings to prosecutors, or a formalized Giglio list. With 53 counties and dozens of small law enforcement agencies, North Dakota’s approach to disclosure remains highly discretionary. Compounding the problem is the state’s permissive public records law and a lack of prosecutorial oversight, which often leaves defense counsel in the dark about whether testifying officers have prior misconduct that could undermine their credibility. In this context, candor is not a system—but a series of assumptions.

Brief Description of Legal Landscape

North Dakota’s criminal prosecutions are carried out by State’s Attorneys elected in each of the state’s 53 counties. The North Dakota Attorney General oversees state-level criminal investigations and prosecutes select cases, particularly those involving public corruption, drug enforcement, or multi-county jurisdiction.

Disclosure obligations are governed by:

• North Dakota Rules of Criminal Procedure Rule 16: Requires disclosure of evidence “material to the preparation of the defense.”

• North Dakota Rule of Professional Conduct 3.8(d): Requires prosecutors to disclose “all evidence or information known to the prosecutor that tends to negate guilt or mitigate the offense.”

• North Dakota Open Records Act (N.D.C.C. § 44-04-18): Establishes a presumption of public access to government records but excludes personnel and internal affairs records from mandatory disclosure unless released voluntarily.

Law enforcement officers are certified by the North Dakota Peace Officer Standards and Training (POST) Board, which oversees basic training and licensure. POST has the authority to decertify officers but does not maintain a publicly searchable list of officers decertified for credibility-related misconduct, nor is it required to share such information with prosecutors.

There is no statutory requirement for police agencies to notify prosecutors of sustained internal affairs findings, and no requirement for prosecutors to track or memorialize officers with known credibility issues.

Historical Context

North Dakota has not experienced a large number of documented wrongful convictions, but this may be less a sign of systemic integrity than a reflection of limited defense resources, a lack of independent media scrutiny, and strong institutional deference to law enforcement in rural jurisdictions.

The 2017 dismissal of multiple drug charges in Williams County—after it was discovered that the lead officer had been previously fired from another department for dishonesty—revealed the absence of any interagency notification system. Prosecutors were unaware of the officer’s history, and defense counsel uncovered it only after the case had progressed significantly.

Similarly, reporting from the Bismarck Tribune in 2020 revealed that several law enforcement officers who had been subject to sustained misconduct findings had continued to testify in court without disclosure to defense counsel or court records reflecting any credibility concerns. No uniform response followed.

Despite these revelations, North Dakota has made little progress toward formalizing a disclosure infrastructure. While POST tracks decertifications, there is no obligation for prosecutors to cross-reference that data—or for defense counsel to be informed.

Legal Framework and Precedents

Constitutional Provisions and State Statutes

North Dakota’s Constitution ensures due process under Article I, Section 12, and confrontation rights under Section 13, mirroring federal protections.

Key legal authorities include:

• N.D. R. Crim. P. 16(a)(1)(E): Requires the prosecution to disclose information “material to preparing the defense,” which includes exculpatory and impeachment evidence.

• Rule 3.8(d) of the North Dakota Rules of Professional Conduct: Requires prosecutors to disclose information that tends to negate guilt or mitigate punishment.

• N.D.C.C. § 44-04-18(1): Presumes public access to records, but excludes many law enforcement personnel and disciplinary records.

North Dakota has no law requiring prosecutors to maintain Giglio lists, no requirement that law enforcement notify prosecutors of sustained findings, and no duty to disclose internal affairs findings unless a court compels it through discovery or subpoena.

Relevant Case Law and Judicial Interpretations

• State v. Goulet, 1997 ND 160: The North Dakota Supreme Court ruled that failure to disclose favorable evidence known to the state violates due process. However, it applied the federal “materiality” standard narrowly.

• State v. Murchison, 2004 ND 193: Confirmed that Brady violations can warrant reversal, but placed the burden on the defense to prove materiality.

• State v. Haverluk, 2000 ND 178: Emphasized that prosecutors must disclose impeachment material but did not extend this to a requirement for proactive tracking of officer misconduct.

These cases affirm North Dakota’s general compliance with Brady, but none mandate structural disclosure systems or integrate POST decertification with prosecutorial duties.

Implementation and Enforcement

Law Enforcement Policies and Training

Police departments and sheriffs’ offices in North Dakota operate autonomously, and internal affairs investigations are generally treated as confidential unless criminal charges are brought. There is no mandate that disciplinary findings—particularly for dishonesty, perjury, or bias—be communicated to the county prosecutor.

POST certification is governed by administrative rules, and while revocation is possible for serious misconduct, POST does not proactively notify local prosecutors of decertifications or suspensions. Likewise, no requirement exists for departments to inform other jurisdictions when an officer with a known history moves or testifies elsewhere.

Training for law enforcement officers includes general ethics instruction but does not consistently include education on Brady or Giglio implications. As a result, many officers may not understand the consequences of dishonesty for courtroom proceedings—or the importance of reporting misconduct that could impact prosecutions.

Oversight Mechanisms and Accountability Structures

There is no independent agency in North Dakota responsible for auditing prosecutorial disclosure practices, and the POST Board does not track Giglio-impairing misconduct for the purpose of courtroom integrity. Disciplinary action for prosecutors is managed by the North Dakota Disciplinary Board, which rarely addresses Brady-related misconduct and does not publish audit results.

Each State’s Attorney sets their own policy—or lacks one—on tracking and disclosing officer misconduct. There is no obligation to share such information with other counties, and no structure for updating defense counsel when new credibility issues arise during a pending case.

Case Studies from the State

Significant Cases Illustrating Issues of Candor

1. Williams County Officer Scandal (2017)
   A deputy previously terminated for falsifying records in another department was rehired and involved in drug arrests. Prosecutors were unaware of his prior misconduct, and charges were later dropped after the defense uncovered his history. No formal policy change followed.

2. Burleigh County Misconduct Records Withheld (2020)
   A civil rights lawsuit alleged use of excessive force by a deputy with multiple prior complaints. During the case, the department refused to turn over internal affairs files to defense counsel, citing personnel exemptions under state law. The underlying case settled, and no policy revisions occurred.

3. POST Decertification Gaps (2015–2022)
   Review of POST Board records showed several officers had been decertified for misconduct that would impair credibility—but no notification was sent to the counties where those officers had previously testified. No review of affected cases was undertaken.

Outcomes and Implications

These examples reveal the systemic failures in North Dakota’s approach: there is no duty to track, no policy to disclose, and no transparency to verify. Officers with sustained misconduct records can testify without anyone in the courtroom—judge, prosecutor, or defense counsel—being aware of their history. This not only jeopardizes individual cases but erodes public confidence in the impartiality of the system.

Challenges and Gaps

Identified Issues within the State’s System

• No Giglio Lists Maintained: Prosecutors are not required to track officer credibility issues.

• No Notification from Law Enforcement to Prosecutors: Internal findings of misconduct are not communicated unless charges are filed.

• Personnel Records Shielded from Disclosure: State law exempts internal discipline files from open records unless voluntarily released.

• No Integrated Oversight: POST, prosecutors, and police operate in silos with no shared accountability mechanisms.

Legislative and Institutional Barriers

Efforts to expand transparency have been stymied by law enforcement lobbying and a political culture that prioritizes local control. Proposals to create a centralized officer misconduct database or reform public records laws have not gained traction in the legislature. Prosecutorial independence and a lack of institutional oversight contribute to continued discretion and opacity.

Recommendations

Suggested Improvements in Law, Policy, and Practice

1. Require Prosecutors to Maintain Giglio Lists
   Mandate each State’s Attorney to track officers with known credibility issues and disclose this material in all relevant cases.

2. Enact a Law Enforcement Reporting Mandate
   Require police departments to notify prosecutors within 30 days of sustained findings involving dishonesty, falsification, or civil rights violations.

3. Integrate POST and Prosecutorial Databases
   POST should flag officers with Giglio-impairing findings and notify relevant State’s Attorneys of decertification or disciplinary action.

4. Amend Rule 16 to Require Affirmative Disclosure
   Explicitly include impeachment evidence and officer credibility as material subject to mandatory pretrial disclosure.

Recommendations for Enhanced Transparency and Accountability

1. Reform Open Records Laws
   Amend N.D.C.C. § 44-04-18 to permit public and defense access to sustained disciplinary records involving testimonial integrity.

2. Create an Independent Disclosure Oversight Office
   Establish a nonpartisan entity to audit Giglio compliance, train prosecutors, and report on disclosure failures annually.

3. Launch a Defense-Accessible Misconduct Registry
   Build a redacted, searchable database accessible to licensed defense attorneys, identifying officers with sustained misconduct findings.

4. Standardize Training and Certification Requirements
   Require POST to include Giglio compliance in its curriculum and require annual continuing education for both prosecutors and law enforcement on disclosure obligations.

Conclusion

North Dakota’s justice system rests on the presumption of good faith—but provides few tools to test or enforce it. Without a Giglio tracking system, interagency reporting, or public transparency, truth in the courtroom becomes conditional and inconsistent. Candor is not merely a legal duty; it is a design challenge. Until North Dakota reforms its disclosure framework, defendants will remain at risk of convictions tainted by unexamined testimony and unseen misconduct. Justice demands more than trust—it demands verification.